EXECUTION COPY
PURCHASE AGREEMENT
dated as of
March 15, 2000
between
MORGAN STANLEY AIRCRAFT FINANCE
and
MS FINANCING INC.
relating to the purchase and sale
of
100% of the beneficial interest in each of:
MSA II
MSA III
MSA IV
MSA V
MSA VI
and
MSA VII
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions...................................................1
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale.............................................2
SECTION 2.02. Closing.......................................................2
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
SECTION 3.01. Existence and Power...........................................3
SECTION 3.02. Corporate Authorization.......................................3
SECTION 3.03. Governmental Authorization....................................3
SECTION 3.04. Noncontravention..............................................3
SECTION 3.05. Ownership of Beneficial Interest..............................3
SECTION 3.06. No Undisclosed Material Liabilities...........................4
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
SECTION 4.01. Existence and Power...........................................4
SECTION 4.02. Authorization.................................................4
SECTION 4.03. Governmental Authorization....................................4
SECTION 4.04. Noncontravention..............................................4
ARTICLE 5
CONDITIONS TO CLOSING
SECTION 5.01. Conditions to Obligations of Buyer and Seller.................5
SECTION 5.02. Conditions to Obligation of Buyer.............................5
SECTION 5.03. Conditions to Obligation of Seller............................5
PAGE
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ARTICLE 6
INDEMNIFICATION
SECTION 6.01. Indemnification...............................................5
SECTION 6.02. Procedures....................................................6
ARTICLE 7
TERMINATION
SECTION 7.01. Grounds for Termination.......................................6
SECTION 7.02. Effect of Termination.........................................6
ARTICLE 8
MISCELLANEOUS
SECTION 8.01. Notices.......................................................6
SECTION 8.02. Amendments and Waivers........................................7
SECTION 8.03. Expenses......................................................8
SECTION 8.04. Successors and Assigns........................................8
SECTION 8.05. Governing Law.................................................8
SECTION 8.06. Jurisdiction..................................................8
SECTION 8.07. WAIVER OF JURY TRIAL..........................................8
SECTION 8.08. Counterparts; Third Party Beneficiaries.......................9
SECTION 8.09. Entire Agreement..............................................9
SECTION 8.10. Captions......................................................9
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PURCHASE AGREEMENT
AGREEMENT dated as of March 15, 2000 between Morgan Stanley Aircraft
Finance, a Delaware business trust, ("Buyer"), and MS Financing Inc., a
Delaware corporation ("Seller").
W I T N E S S E T H :
WHEREAS, Seller is the owner of 100% of the beneficial interest (the
"Beneficial Interest") in each of MSA II, MSA III, MSA IV, MSA V, MSA VI and
MSA VI (collectively the "Trusts") and desires to sell the Beneficial Interest
in each of the Trusts to Buyer, and Buyer desires to purchase the Beneficial
Interest in each of the Trusts from Seller, upon the terms and subject to the
conditions hereinafter set forth;
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein, have
the following meanings:
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with such
Person.
"Closing Date" means March 15, 2000.
"Lien" means, with respect to any property or asset, any mortgage, lien,
pledge, charge, security interest, encumbrance or other adverse claim of any
kind in respect of such property or asset. For the purposes of this Agreement,
a Person shall be deemed to own subject to a Lien any property or asset which
it has acquired or holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other title retention
agreement relating to such property or asset.
"MSAF Trust Agreement" means the fourth amended and restated trust
agreement of Morgan Stanley Aircraft Finance dated as of March 15, 2000.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
Closing 2.02
Damages 6.01
Indemnified Party 6.02
Indemnifying Party 6.02
Purchase Price 2.01
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, Seller agrees to sell to Buyer, and Buyer agrees
to purchase from Seller, the Beneficial Interest in each of the Trusts at the
Closing. The purchase price for the Beneficial Interest in each of the Trusts
(the "Purchase Price") is $12,458,173 in cash. The Purchase Price shall be paid
as provided in Section 2.02.
SECTION 2.02. Closing. The closing (the "Closing") of the purchase and
sale of the Beneficial Interests in each of the Trusts hereunder shall take
place at the offices of Shearman & Sterling, 599 Lexington Avenue, New York,
New York 10022, on the Closing Date, simultaneous with satisfaction of the
conditions set forth in Article 5. At the Closing:
(a) Buyer shall deliver to Seller:
(i) the Purchase Price in immediately available funds by wire
transfer to an account of Seller with a bank in New York City
designated by Seller, by notice to Buyer, not later than two business
days prior to the Closing Date (or if not so designated, then by
certified or official bank check payable in immediately available
funds to the order of Seller in such amount) and
(b) Seller shall deliver to Buyer an amended and restated trust
agreement for each of the Trusts evidencing the transfer of the
Beneficial Interests in each of the Trusts.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as of the date hereof and as of
the Closing Date that:
SECTION 3.01. Existence and Power. Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate powers and all material
governmental licenses, authorizations, permits, consents and approvals required
to carry on its business as now conducted. Each Trust is a statutory business
trust duly formed, validly existing and in good standing under the laws of
Delaware and has all necessary powers and all material governmental licenses,
authorizations, permits, consents and approvals required to carry on its
activities as now conducted.
SECTION 3.02. Corporate Authorization. The execution, delivery and
performance by Seller of this Agreement and the consummation of the
transactions contemplated hereby are within Seller's corporate powers and have
been duly authorized by all necessary corporate action on the part of Seller.
This Agreement constitutes a valid and binding agreement of Seller.
SECTION 3.03. Governmental Authorization. The execution, delivery and
performance by Seller of this Agreement and the consummation of the
transactions contemplated hereby require no action by or in respect of, or
filing with, any governmental body, agency or official.
SECTION 3.04. Noncontravention. The execution, delivery and performance by
Seller of this Agreement and the consummation of the transactions contemplated
hereby do not and will not (i) violate the certificate of incorporation or
bylaws of Seller, (ii) assuming compliance with the matters referred to in
Section 3.03, violate any applicable law, rule, regulation, judgment,
injunction, order or decree, (iii) require any consent or other action by any
Person under, constitute a default under, or give rise to any right of
termination, cancellation or acceleration of any right or obligation of Seller
or to a loss of any benefit to which Seller is entitled under any provision of
any agreement or other instrument binding upon Seller or (iv) result in the
creation or imposition of any Lien on any asset of the Seller.
SECTION 3.05. Ownership of Beneficial Interest. Seller is the record and
beneficial owner of the Beneficial Interest in each of the Trusts, free and
clear of any Lien and any other limitation or restriction, and will transfer
and deliver to
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Buyer at the Closing valid title to the Beneficial Interest in each of the
Trusts free and clear of any Lien and any such limitation or restriction.
SECTION 3.06. No Undisclosed Material Liabilities. There are no
liabilities of the Trusts of any kind, other than intercompany loans in an
aggregate amount of $936,773,444 made by the Seller to the Trusts.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as of the date hereof and as of
the Closing Date that:
SECTION 4.01. Existence and Power. Buyer is a statutory business trust
duly formed, validly existing and in good standing under the laws of Delaware
and has all corporate powers and all material governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted.
SECTION 4.02. Authorization. The execution, delivery and performance by
Buyer of this Agreement and the consummation of the transactions contemplated
hereby are within the corporate powers of Buyer have been duly authorized by
all necessary corporate action on the part of Buyer. This Agreement constitutes
a valid and binding agreement of Buyer.
SECTION 4.03. Governmental Authorization. The execution, delivery and
performance by Buyer of this Agreement and the consummation of the transactions
contemplated hereby require no material action by or in respect of, or material
filing with, any governmental body, agency or official other than actions or
filings that have already been taken or made or will be taken or made by such
Buyer.
SECTION 4.04. Noncontravention. The execution, delivery and performance by
Buyer of this Agreement and the consummation of the transactions contemplated
hereby do not and will not (i) violate the MSAF Trust Agreement or (ii)
assuming compliance with the matters referred to in Section 4.03, violate any
applicable material law, rule, regulation, judgment, injunction, order or
decree.
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ARTICLE 5
CONDITIONS TO CLOSING
SECTION 5.01. Conditions to Obligations of Buyer and Seller. The
obligations of Buyer and Seller to consummate the Closing are subject to the
satisfaction of the following condition:
(a) No provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation
of the Closing.
SECTION 5.02. Conditions to Obligation of Buyer. The obligation of Buyer
to consummate the Closing is subject to the satisfaction of the following
further conditions:
(a) (i) Seller shall have performed in all material respects all
of its obligations hereunder required to be performed by it on or
prior to the Closing Date, (ii) the representations and warranties of
Seller contained in this Agreement and in any certificate or other
writing delivered by Seller pursuant hereto and (iii) Buyer shall
have consummated its offering of six subclasses of notes.
SECTION 5.03. Conditions to Obligation of Seller. The obligation of Seller
to consummate the Closing is subject to the satisfaction of the following
further conditions:
(a) (i) Buyer shall have performed in all material respects all
of its obligations hereunder required to be performed by it at or
prior to the Closing Date and (ii) the representations and warranties
of Buyer contained in this Agreement and in any certificate or other
writing delivered by Buyer pursuant hereto shall be true in all
material respects at and as of the Closing Date, as if made at and as
of such date.
ARTICLE 6
INDEMNIFICATION
SECTION 6.01. Indemnification. (a) Seller hereby indemnifies Buyer and its
Affiliates against and agrees to hold each of them harmless from any and all
damage, loss, liability and expense (including, without limitation, reasonable
expenses of investigation and reasonable attorneys' fees and expenses in
connection with any action, suit or proceeding) ("Damages") incurred or
suffered by Buyer or any Affiliate of Buyer arising out of any
misrepresentation or breach
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of warranty, covenant or agreement made or to be performed by Seller pursuant to
this Agreement.
(b) Buyer hereby indemnifies Seller and its Affiliates against and agrees
to hold each of them harmless from any and all Damages incurred or suffered by
Seller or any of its Affiliates arising out of any misrepresentation or breach
of warranty, covenant or agreement made or to be performed by Buyer pursuant to
this Agreement.
SECTION 6.02. Procedures. party seeking indemnification under Section 6.01
(the "Indemnified Party") agrees to give prompt notice to the party against
whom indemnity is sought (the "Indemnifying Party") of the assertion of any
claim, or the commencement of any suit, action or proceeding in respect of
which indemnity may be sought under such Section. The Indemnifying Party may at
the request of the Indemnified Party participate in and control the defense of
any such suit, action or proceeding at its own expense. The Indemnifying Party
shall not be liable under Section 6.01 for any settlement effected without its
consent of any claim, litigation or proceeding in respect of which indemnity
may be sought hereunder.
ARTICLE 7
TERMINATION
SECTION 7.01. Grounds for Termination. This Agreement may be terminated at
any time prior to the Closing by Buyer or Seller. The party desiring to
terminate this Agreement pursuant to this Section shall give notice of such
termination to the other party.
SECTION 7.02. Effect of Termination. If this Agreement is terminated as
permitted by Section 7.01, such termination shall be without liability of
either party (or any stockholder, director, officer, employee, agent,
consultant or representative of such party) to the other party to this
Agreement. The provisions of Sections 8.03, 8.05, 8.06 and 8.07 shall survive
any termination hereof pursuant to Section 7.01.
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ARTICLE 8
MISCELLANEOUS
SECTION 8.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given,
if to Buyer, to:
Morgan Stanley Aircraft Finance
c/o Cabot Aircraft Services Limited
Regus House
Harcourt Centre
Harcourt Road
Dublin 2
Ireland
Attention: Mr. Kieran O'Keefe
Fax: + 353 1 402 9496
with a copy to:
Davis Polk & Wardwell
99 Gresham Street
London EC2V 7NG
Attention: Keith Kearney
Fax: + 44 171 418 1400
if to Seller, to:
MS Financing Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Attention: Ms. Debra Aaron
Fax: +1 212 762 6912
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to
have been received until the next succeeding business day in the place of
receipt.
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SECTION 8.02. Amendments and Waivers. (a) Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 8.03. Expenses. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.
SECTION 8.04. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto, except that Buyer may transfer
or assign, in whole or from time to time in part, to one or more of its
Affiliates, the right to purchase all or a portion of the Beneficial Interest
in any of the Trusts but no such transfer or assignment will relieve Buyer of
its obligations hereunder.
SECTION 8.05. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York , without regard
to the conflicts of law rules of such state.
SECTION 8.06. Jurisdiction. Except as otherwise expressly provided in this
Agreement, the parties hereto agree that any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby may be
brought in the United States District Court for the Southern District of New
York or any other New York State court sitting in New York City, and each of
the parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each
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party agrees that service of process on such party as provided in Section 8.01
shall be deemed effective service of process on such party.
SECTION 8.07. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 8.08. Counterparts; Third Party Beneficiaries. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. No
provision of this Agreement is intended to confer upon any Person other than
the parties hereto any rights or remedies hereunder.
SECTION 8.09. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
SECTION 8.10. Captions. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
MORGAN STANLEY AIRCRAFT FINANCE
By: /s/ Brian J. Gill
--------------------------------------
Name:
Title:
MS FINANCING INC.
By: /s/ Debra Aaron
--------------------------------------
Name: Debra Aaron
Title: Vice President
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