Execution Copy
INDENTURE SUPPLEMENT NO. 1
INDENTURE SUPPLEMENT NO. 1, dated as of March 15, 2000 (the "Indenture
Supplement"), among MORGAN STANLEY AIRCRAFT FINANCE, a Delaware business trust
("MSAF"), as issuer of the Notes (the "Issuer"), and BANKERS TRUST COMPANY, a
New York banking corporation, as trustee of each class of Notes (the
"Trustee"), to the Indenture dated as of March 3, 1998, among the Issuer and
the Trustee (the "Indenture"). Capitalized terms used herein but not defined
herein shall have the meanings given to such terms in the Indenture.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Issuer has agreed to acquire certain aircraft-owning business
trusts from MS Financing Inc.;
WHEREAS, the Issuer intends to issue four subclasses of Issuer Additional
Notes in accordance with Section 2.11 of the Indenture to finance such
acquisitions (the "March 2000 Additional Issuance");
WHEREAS, the Issuer intends to issue one subclass of Refinancing Notes
(the Subclass A-5 Notes) in accordance with Section 2.10 of the Indenture to
refinance the Subclass A-1 Notes (the "March 2000 Refinancing Issuance");
WHEREAS, in accordance with the Indenture, each subclass of the Issuer
Additional Notes and the subclass of Refinancing Notes to be issued in the
March 2000 Additional Issuance and the March 2000 Refinancing Issuance,
respectively, is intended to be entitled to all the rights and benefits
appertaining to the corresponding class of outstanding MSAF Group Notes under
the Indenture;
WHEREAS, all of the conditions and requirements necessary to make this
Indenture Supplement, when duly executed and delivered, a legal, valid and
binding instrument in accordance with its terms and for the purposes herein
expressed, have been done, performed and fulfilled, and the execution and
delivery of this Indenture Supplement in the form and with the terms hereof
have been in all respects duly authorized.
NOW, THEREFORE, in consideration of the premises herein, it is agreed
among the Issuer and the Trustee as follows:
2
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following terms shall be applicable to this
Indenture Supplement:
"March 2000 Closing Date" means March 15, 2000.
"Subclass A-3 Notes" means the Subclass A-3 Notes, due March 15, 2025
of the Issuer in the initial aggregate principal amount of $580,000,000,
substantially in the form of Exhibit A-3 hereto, including any note issued
in replacement or substitution therefor and any Refinancing Notes
designated in the form of such Refinancing Notes as being entitled to the
rights and benefits of the Subclass A-3 Notes under the Indenture, in each
case ranking pari passu in order of payment priority to the Subclass A-3
Notes.
"Subclass A-4 Notes" means the Subclass A-4 Notes, due March 15, 2025
of the Issuer in the initial aggregate principal amount of $200,000,000,
substantially in the form of Exhibit A-4 hereto, including any note issued
in replacement or substitution therefor and any Refinancing Notes
designated in the form of such Refinancing Notes as being entitled to the
rights and benefits of the Subclass A-4 Notes under the Indenture, in each
case ranking pari passu in order of payment priority to the Subclass A-4
Notes.
"Subclass A-5 Notes" means the Subclass A-5 Notes, due March 15, 2025
of the Issuer in the initial aggregate principal amount of $400,000,000,
substantially in the form of Exhibit A-5 hereto, including any note issued
in replacement or substitution therefor and any Refinancing Notes
designated in the form of such Refinancing Notes as being entitled to the
rights and benefits of the Subclass A-5 Notes under the Indenture, in each
case ranking pari passu in order of payment priority to the Subclass A-5
Notes.
"Subclass B-2 Notes" means the Subclass B-2 Notes, due March 25, 2025
of the Issuer in the initial aggregate principal amount of $75,000,000,
substantially in the form of Exhibit B-2 hereto, including any note issued
in replacement or substitution therefor and any Refinancing Notes
designated in the form of such Refinancing Notes as being entitled to the
rights and benefits of the Subclass B-2 Notes under the Indenture, in each
case ranking pari passu in order of payment priority to the Subclass B-2
Notes.
"Subclass C-2 Notes" means the Subclass C-2 Notes, due March 25, 2025
of the Issuer in the initial aggregate principal amount of $55,000,000,
substantially in the form of Exhibit C-2 thereto, including any note
issued in replacement or substitution therefor and any Refinancing Notes
designated in the form of such Refinancing Notes as being entitled to the
rights and benefits of the Subclass C-2 Notes under the Indenture, in each
case ranking pari passu in order of payment priority to the Subclass C-2
Notes.
3
ARTICLE II
ISSUER ADDITIONAL NOTES
Section 2.01. The Issuer Additional Notes and the Refinancing Notes. There
are hereby created Subclass A-3, Subclass A-4, Subclass A-5, Subclass B-2 and
Subclass C-2 Notes to be issued under the Indenture on the date hereof. The
terms and conditions applicable to the Subclass A-3, Subclass A-4, Subclass
A-5, Subclass B-2 and Subclass C-2 Notes are as follows:
(a) The aggregate principal amount of the Subclass A-3 Notes that
shall be authenticated under the Indenture upon their issuance is
$580,000,000, the aggregate principal amount of the Subclass A-4 Notes
that shall be authenticated under the Indenture upon their issuance is
$200,000,000, the aggregate principal amount of the Subclass A-5 Notes
that shall be authenticated under the Indenture upon their issuance is
$400,000,000, the aggregate principal amount of the Subclass B-2 Notes
that shall be authenticated under the Indenture upon their issuance is
$75,000,000 and the aggregate principal amount of the Subclass C-2 Notes
that shall be authenticated under the Indenture upon their issuance is
$55,000,000.
(b) The Excess Amortization Date shall be, with respect to (i) the
Subclass A-3 Notes, March 15, 2002, (ii) the Subclass A-4 Notes, March 15,
2003, (iii) the Subclass A-5 Notes, April 15, 2000, (iv) the Subclass B-2
Notes, March 15, 2007 and (v) the Subclass C-2 Notes, October 15, 2016.
(c) The Expected Final Payment Date shall be, with respect to (i) the
Subclass A-3 Notes, March 15, 2002, (ii) the Subclass A-4 Notes, March 15,
2003, (iii) the Subclass A-5 Notes, June 15, 2008, (iv) the Subclass B-2
Notes March 15, 2007 and (v) the Subclass C-2 Notes, October 15, 2016.
(d) The "Redemption Premium", in respect of the following subclasses
of Notes, on any date shall be the Redemption Premium indicated in the
table below:
4
Redemption Premium
------------------------------------------
Subclass Subclass Subclass Subclass
Redemption Date A-3 Notes A-4 Notes A-5 Notes B-2 Notes
--------------- --------- --------- --------- ---------
On or after the Closing Date...... 101.00% 101.50% 101.50% 101.75%
On or after March 15, 2001........ 100.50% 101.00% 101.00% 101.50%
On or after March 15, 2002........ 100.00% 100.50% 100.75% 101.25%
On or after March 15, 2003........ - 100.00% 100.50% 101.00%
On or after March 15, 2004........ - - 100.25% 100.75%
On or after March 15, 2005........ - - 100.00% 100.50%
On or after March 15, 2006........ - - - 100.25%
On or after March 15, 2007........ - - - 100.00%
On or after March 15, 2008........ - - - -
On or after March 15, 2009........ - - - -
On or after March 15, 2010........ - - - -
On or after March 15, 2011........ - - - -
On or after March 15, 2012........ - - - -
On or after March 15, 2013........ - - - -
On or after March 15, 2014........ - - - -
On or after March 15, 2015........ - - - -
On or after March 15, 2016........ - - - -
(e) The "Redemption Price" shall be, with respect to (i) the Subclass
A-3 Notes, the Subclass A-4 Notes, the Subclass A-5 Notes and the Subclass
B-2 Notes, (A) to the extent that the redemption is funded other than out
of the Available Collections Amount (including proceeds from Refinancing
Notes and proceeds from third parties), the product of the applicable
Redemption Premium and the Outstanding Principal Balance of the portion of
such subclass of Notes being redeemed and (B) to the extent that the
redemption is funded out of the Available Collections Amount, the
Outstanding Principal Balance of the portion of such subclass of Notes
being redeemed, without premium and (ii) any portion of the Subclass C-2
Notes being redeemed, the higher of (X) the discounted present value of
the Scheduled Principal Payment Amounts allocable in accordance with
Section 3.09 hereof in respect of, and interest on, such portion from the
Redemption Date to and including the applicable Expected Final Payment
Date discounted at a rate equal to the Treasury Yield plus 0.5% and (Y)
the Outstanding Principal Balance of such portion.
5
(f) The "Regulation S Global Exchange Date" for each subclass of
Notes issued pursuant to the March 2000 Additional Issuance and the March
2000 Refinancing Issuance and in each case issued in temporary global
form, shall be the date that is forty days after the March 2000 Closing
Date.
(g) The "Treasury Yield" shall be, with respect to any Redemption of
the Subclass C-2 Notes on any Payment Date, the interest rate (expressed
as a semiannual decimal and, in the case of United States Treasury bills,
converted to a bond equivalent yield) determined on the fourth Business
Day prior to such Payment Date to be the per annum rate equal to the
semiannual yield to maturity for United States Treasury securities
maturing on the Average Life Date of such subclass and trading in the
public securities markets either (x) as determined by interpolation
between the most recent weekly average yield to maturity for two series of
United States Treasury securities trading in the public securities
markets, (A) one maturing as close as possible to, but earlier than, the
Average Life Date of such subclass and (B) the other maturing as close as
possible to, but later than, the Average Life Date of such subclass in
each case as published in the most recent H.15 (519) or (y) if a weekly
average yield to maturity for United States Treasury securities maturing
on the Average Life Date of such subclass is reported in the most recent
H.15 (519), such weekly average yield to maturity as published in such
H.15 (519).
(h) The Subclass A-3 Notes, the Subclass A-4 Notes, the Subclass A-5
Notes, the Subclass B-2 Notes and the Subclass C-2 Notes shall be in the
form attached hereto as Exhibits A-3, A-4, A-5, B-2 and C-2, respectively.
(i) The Issuer agrees that it will not and will not permit any Issuer
Subsidiary to incur Indebtedness in respect of any Issuer Additional Notes
unless the Issuer receives a prior written confirmation from each Rating
Agency that such Indebtedness shall not result in the downgrade or
withdrawal of such Rating Agency's credit rating as of the March 2000
Closing Date of the Subclass A-3, Subclass A-4, Subclass A-5, Subclass B-2
and Subclass C-2 Notes.
Section 2.02. Issuance of Notes. On the date hereof, the Issuer shall
execute and the Trustee shall authenticate and deliver, in fully registered
form only, the Subclass A-3 Notes, the Subclass A-4 Notes, the Subclass A-5
Notes, the Subclass B-2 Notes and the Subclass C-2 Notes upon the written order
of the Issuer, in authorized denominations and in the names specified by the
Issuer.
6
ARTICLE III
THE TRUSTEE
Section 3.01. The Trustee. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Indenture Supplement or the due execution hereof by the Issuer, or for or in
respect of the recitals and statements contained herein, all of which recitals
and statements are made solely by the Issuer.
Except as herein otherwise provided, no duties, responsibilities or
liabilities are assumed, or shall be construed to be assumed by the Trustee
other than as set forth in the Indenture, and this Indenture Supplement is
executed and accepted on behalf of the Trustee, subject to all the terms and
conditions set forth in the Indenture, upon the effectiveness thereof, as fully
to all intents as if the same were herein set forth at length.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01. Indenture Ratified. Except and so far as herein expressly
provided, all of the provisions, terms and conditions of the Indenture are in
all respects ratified and confirmed; and the Indenture and this Indenture
Supplement shall be taken, read and construed as one and the same instrument.
Section 4.02. GOVERNING LAW. THIS INDENTURE SUPPLEMENT, THE SUBCLASS A-3
NOTES, THE SUBCLASS A-4 NOTES, THE SUBCLASS A-5 NOTES, THE SUBCLASS B-2 NOTES
AND THE SUBCLASS C-2 NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 4.03. Execution in Counterparts. This Indenture Supplement may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the Trustee and the Issuer have caused this Indenture
Supplement to be duly executed as of the day and year first written above.
MORGAN STANLEY AIRCRAFT FINANCE,
as Issuer
By: /s/ Brian J. Gill
----------------------------------------
Name: Brian J. Gill
Title: Authorized Signatory
BANKERS TRUST COMPANY, not in its
individual capacity but solely as Trustee
By: /s/ Jenna Kaufman
----------------------------------------
Name: Jenna Kaufman
Title: Vice President
EXHIBIT A-3
FORM OF SUBCLASS A-3 FLOATING RATE NOTE
MORGAN STANLEY AIRCRAFT FINANCE
SUBCLASS A-3 NOTE, due March 15, 2025
No. ____ [CUSIP][ISIN][CCN]
$_______
MORGAN STANLEY AIRCRAFT FINANCE, a business trust organized under the laws
of the State of Delaware (herein referred to as the "Issuer"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of ___________________________________________________ DOLLARS
($_________) on March 15, 2025 (the "Final Maturity Date") and to pay interest
monthly in arrears on the Outstanding Principal Balance hereof at a fluctuating
interest rate per annum equal to the sum of LIBOR plus 0.52% per annum (the
"Stated Interest Rate") from the date hereof until the Outstanding Principal
Balance hereof is paid or duly provided for, payable on each Payment Date.
Interest on this Subclass A-3 Note in each Interest Accrual Period shall be
calculated on the basis of a 360-day year and the actual number of days elapsed
in such Interest Accrual Period.
This Subclass A-3 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its "Subclass A-3 Notes, due March 15, 2025", issued
under the Trust Indenture dated as of March 3, 1998 and supplemented by an
Indenture Supplement dated as of March 15, 2000 (as amended or supplemented
from time to time, the "Indenture"), between the Issuer and Bankers Trust
Company, as trustee (the "Trustee"). All capitalized terms used in this
Subclass A-3 Note and not defined herein shall have the respective meanings
assigned to such terms in the Indenture. Reference is made to the Indenture and
all indentures supplemental thereto for a statement of the respective rights
and obligations thereunder of the Issuer, the Trustee and the Subclass A-3
Noteholders. This Subclass A-3 Note is subject to all terms of the Indenture.
The Issuer will redeem the Outstanding Principal Balance of this Subclass
A-3 Note prior to the Final Maturity Date on the Payment Dates and in the
amounts specified in the Indenture, subject to the availability of the
Available Collections Amount therefor after making payments entitled to
priority under Sections 3.08 and 3.09 of the Indenture.
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The Issuer may redeem all or part of the Outstanding Principal Balance of
this Subclass A-3 Note prior to the Final Maturity Date on the Payment Dates,
in the amounts and under the circumstances specified in the Indenture.
Other than in the case of a redemption for taxation reasons specified in
the Indenture, upon any redemption of any amount of the Outstanding Principal
Balance of this Subclass A-3 Note (i) with the application of funds other than
the Available Collections Amount (including proceeds from Refinancing Notes and
proceeds from third parties), such amount shall be redeemed at a Redemption
Price equal to the product of the applicable Redemption Premium applicable
thereto and the Outstanding Principal Balance thereof and (ii) with the
application of the Available Collections Amount, such amount shall be redeemed
at a Redemption Price equal to the Outstanding Principal Balance thereof.
Following the Expected Final Payment Date of this Subclass A-3 Note and
until the Outstanding Principal Balance hereof is paid or duly provided for,
the Outstanding Principal Balance hereof shall bear additional interest
("Step-Up Interest") at the rate of 1.0% per annum, payable on each Payment
Date, subject to the availability of the Available Collections Amount therefor
after making payments entitled to priority under Sections 3.08 and 3.09 of the
Indenture.
Any amount of Premium or interest (including Step-Up Interest) on this
Subclass A-3 Note that is not paid when due shall, to the fullest extent
permitted by applicable law, bear interest at a fluctuating interest rate per
annum equal to the Stated Interest Rate plus, following the Expected Final
Payment Date of this Subclass A-3 Note, 0.5% per annum from the date when due
until such amount is paid or duly provided for, payable on the next succeeding
Payment Date, subject, in the case of Step-Up Interest, to the availability of
the Available Collections Amount therefor after making payments entitled to
priority under Sections 3.08 and 3.09 of the Indenture.
If an exchange offer (the "Exchange Offer") registered under the
Securities Act is not consummated or a shelf registration statement (the "Shelf
Registration Statement") under the Securities Act with respect to resales of
the Notes is not declared effective by the Commission on or before December 10,
2000 in accordance with the terms of the Registration Rights Agreement dated as
of March 15, 2000 between the Issuer and Morgan Stanley & Co. International
Limited, thereafter an additional incremental interest amount will accrue on
each subclass of Notes, at an annual rate of 0.50%. Such additional incremental
interest amounts on the Notes will be payable in cash on each Payment Date
until the Exchange Offer is consummated or the Shelf Registration Statement is
declared effective. The Holder of this Note is entitled to the benefits of such
Registration Rights Agreement.
The indebtedness evidenced by the Subclass A-3 Notes is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Claims (as defined in the
Indenture), and this Subclass A-3 Note is issued subject to such provisions.
Each Holder of this Subclass A-3 Note, by accepting the same,
A-3-3
(a) agrees to and shall be bound by such provisions, (b) authorizes and directs
the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in the Indenture and
(c) appoints the Trustee his attorney-in-fact for such purpose.
The maturity of this Subclass A-3 Note is subject to acceleration upon the
occurrence and during the continuance of the Events of Default specified in the
Indenture.
This Subclass A-3 Note is and will be secured, on a subordinated basis, by
the collateral pledged as security therefor as provided in the Security Trust
Agreement.
Subject to and in accordance with the terms of the Indenture, there will
be distributed monthly on each Payment Date commencing on April 15, 2000, to
the Person in whose name this Subclass A-3 Note is registered at the close of
business on the Record Date with respect to such Payment Date, in the manner
specified in Section 3.08 of the Indenture, such Person's pro rata share (based
on the aggregate percentage of the Outstanding Principal Balance of the
Subclass A-3 Notes held by such Person) of the aggregate amount distributable
to all Holders of Subclass A-3 Notes on such Payment Date.
All amounts payable in respect of this Subclass A-3 Note shall be payable
in U.S. dollars in immediately available funds in the manner provided in the
Indenture to the Holder hereof on the Record Date relating to such payment. The
final payment with respect to this Subclass A-3 Note, however, shall be made
only upon presentation and surrender of this Note by the Noteholder or its
agent at the Corporate Trust Office or agency of the Trustee or Paying Agent
specified in the notice given by the Trustee or Paying Agent with respect to
such final payment. At such time, if any, as this Subclass A-3 Note is issued
in the form of one or more Definitive Notes, payments on a Payment Date shall
be made by check mailed to each Noteholder of such a Definitive Note on the
applicable Record Date at its address appearing on the Register maintained with
respect to Subclass A-3 Notes. Alternatively, upon application in writing to
the Trustee, not later than the applicable Record Date, by a Noteholder of one
or more Definitive Notes of Subclass A-3 having an aggregate principal amount
of not less than $1,000,000, any such payments shall be made by wire transfer
to an account designated by such Noteholder at a financial institution in New
York, New York. The final payment with respect to any such Definitive Note,
however, shall be made only upon presentation and surrender of such Definitive
Note by the Noteholder or its agent at the Corporate Trust Office or agency of
the Trustee or Paying Agent specified in the notice of such final payment given
by the Trustee or Paying Agent. Any reduction in the principal amount of this
Subclass A-3 Note (or any one or more predecessor Subclass A-3 Notes) effected
by any payments made on any Payment Date shall be binding upon all future
Holders of this Subclass A-3 Note and of any Subclass A-3 Note issued upon the
registration of transfer of, in exchange or in lieu of or upon the refinancing
of this Subclass A-3 Note, whether or not noted hereon.
The Holder of this Subclass A-3 Note agrees, by acceptance hereof, to pay
over to the Administrative Agent any money (including principal, Premium and
interest) paid to it in
A-3-4
respect of this Subclass A-3 Note in the event that the Administrative Agent,
acting in good faith, determines subsequently that such monies were not paid in
accordance with the priority of payment provisions of the Indenture or as a
result of any other mistake of fact or law on the part of the Administrative
Agent in making such payment.
This Subclass A-3 Note is issuable only in registered form. A Holder may
transfer this Note only by written application to the Registrar stating the
name of the proposed transferee and otherwise complying with the terms of the
Indenture. No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Holder only upon, final acceptance and registration
of the transfer by the Registrar in the Register. When this Subclass A-3 Note
is presented to the Registrar with a request to register the transfer or to
exchange it for an equal principal amount of Subclass A-3 Notes of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions are met
(including, in the case of a transfer, that such Note is duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and Registrar duly executed by the Holder thereof or by an attorney who
is authorized in writing to act on behalf of the Holder). No service charge
shall be made for any registration of transfer or exchange of this Subclass A-3
Note, but the party requesting such new Note or Notes may be required to pay a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith.
Prior to the registration of transfer of this Subclass A-3 Note, the
Issuer and the Trustee may deem and treat the Person in whose name this
Subclass A-3 Note (as of the day of determination or as of such other date as
may be specified in the Indenture) is registered as the absolute owner and
Holder hereof for the purpose of receiving payment of all amounts payable with
respect to this Subclass A-3 Note and for all other purposes, and neither the
Issuer nor the Trustee shall be affected by notice to the contrary.
The Indenture permits the amendment or modification of the Indenture and
the Subclass A-3 Notes by the Issuer with the consent of the Holders of a
majority of the Outstanding Principal Balance of all Notes on the date of any
vote of such Holders (voting as a single class); provided that, without the
consent of each Swap Provider and each Holder of any Notes affected thereby, no
such amendment may (i) modify the provisions of the Indenture or the Notes
setting forth the frequency or the currency of payment of, the maturity of, or
the method of calculation of the amount of, any interest, principal and
Premium, if any, payable in respect of any subclass of Notes, (ii) reduce the
percentage of the aggregate Outstanding Principal Balance of such subclass of
Notes required to approve any amendment or waiver of Section 9.01 of the
Indenture or (iii) alter the manner or priority of payment of such subclass of
Notes (each, a "Basic Terms Modification"). Any such amendment or modification
shall be binding on every Holder hereof, whether or not notation thereof is
made upon this Subclass A-3 Note. The Indenture also permits the Trustee to
agree, without the consent of any Noteholder, (a) to any modification (other
than a Basic Terms Modification) of, or the waiver or authorization of any
breach or prospective breach of, any provision of any Related Document or of
the relevant Notes to correct a manifest error or
A-3-5
an error which is of a formal, minor or technical nature or (b) to modify the
provisions of the Indenture or the Administrative Agency Agreement relating to
the timing of movement of Rental Payments or other monies received or Expenses
incurred among the Accounts by the Administrative Agent.
The subordination provisions contained in Section 3.08, Section 3.09 and
Article X of the Indenture may not be amended or modified without the consent
of each Swap Provider, each provider of a Credit Facility, each Noteholder of
the subclass affected thereby and each Noteholder of any subclass of Notes
ranking senior thereto. In no event shall the provisions set forth in Section
3.08 of the Indenture relating to the priority of the Expenses, Swap Payments
and payments under all Credit Facilities be amended or modified.
The Indenture also contains provisions permitting the Holders of Notes
representing a majority of the Outstanding Principal Balance of the Senior
Class of Notes, on behalf of the Holders of all of the Subclass A-3 Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver shall be conclusive and binding upon all present and future
Holders of this Subclass A-3 Note and of any Subclass A-3 Note issued upon the
registration of transfer of, in exchange or in lieu of or upon the refinancing
of this Subclass A-3 Note, whether or not notation of such consent or waiver is
made upon this Subclass A-3 Note.
The term "Issuer" as used in this Subclass A-3 Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Trustee and the Holders of
Subclass A-3 Notes under the Indenture.
The Subclass A-3 Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Subclass A-3 Note shall in all respects be governed by, and construed
in accordance with, the laws of the State of New York, including all matters of
construction, validity and performance.
Unless the certificate of authentication hereon has been executed by the
Trustee whose name appears below by manual or facsimile signature, this
Subclass A-3 Note shall not be entitled to any benefit under the Indenture, or
be valid or obligatory for any purpose.
A-3-6
IN WITNESS WHEREOF, the Issuer has caused this Subclass A-3 Note to be
signed manually or by facsimile by its Signatory Trustee.
Date:______________ MORGAN STANLEY AIRCRAFT FINANCE
By:______________________________
Name:
Title: Signatory Trustee
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subclass A-3 Notes due March 15, 2025 designated above
and referred to in the within-mentioned Indenture.
Date:______________ BANKERS TRUST COMPANY, not in its
individual capacity but solely
as Trustee
By:_______________________________
Authorized Signatory
A-3-7
[FORM OF] TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ---------------------------------- ------------------
- -------------------------------------------------------------------------------
(Please print or typewrite name and address including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _________________________________________________attorney to
transfer said Note on the books of the Issuer with full power of substitution
in the premises.
Date: [Signature of Transferor]
------------------------------------ -------------------------------------
NOTE: The signature to this assignment
must correspond with the name as
written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
[THE FOLLOWING PROVISIONS TO BE
INCLUDED ON ALL NOTES OTHER THAN
EXCHANGE NOTES AND PERMANENT
REGULATION S GLOBAL NOTES]
In connection with any transfer of this Note occurring prior to the date
which is the earlier of (i) the date the Shelf Registration Statement is
declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms
A-3-8
that without utilizing any general solicitation or general advertising that:
[Check One]
---------
[ ] (a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933 provided by Rule
144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.13 of the Indenture shall have
been satisfied.
Date:_________________________ ___________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
the within-mentioned instrument in
every particular, without
alteration or any change
whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933 and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:_________________________ _______________________________________________
NOTICE: To be executed by an executive officer
EXHIBIT A-4
FORM OF SUBCLASS A-4 FLOATING RATE NOTE
MORGAN STANLEY AIRCRAFT FINANCE
SUBCLASS A-4 NOTE, due March 15, 2025
No. ____ [CUSIP][ISIN][CCN]
$_______
MORGAN STANLEY AIRCRAFT FINANCE, a business trust organized under the laws
of the State of Delaware (herein referred to as the "Issuer"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of ___________________________________________________ DOLLARS
($_________) on March 15, 2025 (the "Final Maturity Date") and to pay interest
monthly in arrears on the Outstanding Principal Balance hereof at a fluctuating
interest rate per annum equal to the sum of LIBOR plus 0.54% per annum (the
"Stated Interest Rate") from the date hereof until the Outstanding Principal
Balance hereof is paid or duly provided for, payable on each Payment Date.
Interest on this Subclass A-4 Note in each Interest Accrual Period shall be
calculated on the basis of a 360-day year and the actual number of days elapsed
in such Interest Accrual Period.
This Subclass A-4 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its "Subclass A-4 Notes, due March 15, 2025", issued
under the Trust Indenture dated as of March 3, 1998 and supplemented by an
Indenture Supplement dated as of March 15, 2000 (as amended or supplemented
from time to time, the "Indenture"), between the Issuer and Bankers Trust
Company, as trustee (the "Trustee"). All capitalized terms used in this
Subclass A-4 Note and not defined herein shall have the respective meanings
assigned to such terms in the Indenture. Reference is made to the Indenture and
all indentures supplemental thereto for a statement of the respective rights
and obligations thereunder of the Issuer, the Trustee and the Subclass A-4
Noteholders. This Subclass A-4 Note is subject to all terms of the Indenture.
The Issuer will redeem the Outstanding Principal Balance of this Subclass
A-4 Note prior to the Final Maturity Date on the Payment Dates and in the
amounts specified in the Indenture, subject to the availability of the
Available Collections Amount therefor after making payments entitled to
priority under Sections 3.08 and 3.09 of the Indenture.
The Issuer may redeem all or part of the Outstanding Principal Balance of
this Subclass A-4 Note prior to the Final Maturity Date on the Payment Dates,
in the amounts and under the circumstances specified in the Indenture.
A-4-2
Other than in the case of a redemption for taxation reasons specified in
the Indenture, upon any redemption of any amount of the Outstanding Principal
Balance of this Subclass A-4 Note (i) with the application of funds other than
the Available Collections Amount (including proceeds from Refinancing Notes and
proceeds from third parties), such amount shall be redeemed at a Redemption
Price equal to the product of the applicable Redemption Premium applicable
thereto and the Outstanding Principal Balance thereof and (ii) with the
application of the Available Collections Amount, such amount shall be redeemed
at a Redemption Price equal to the Outstanding Principal Balance thereof.
Following the Expected Final Payment Date of this Subclass A-4 Note and
until the Outstanding Principal Balance hereof is paid or duly provided for,
the Outstanding Principal Balance hereof shall bear additional interest
("Step-Up Interest") at the rate of 1.0% per annum, payable on each Payment
Date, subject to the availability of the Available Collections Amount therefor
after making payments entitled to priority under Sections 3.08 and 3.09 of the
Indenture.
Any amount of Premium or interest (including Step-Up Interest) on this
Subclass A-4 Note that is not paid when due shall, to the fullest extent
permitted by applicable law, bear interest at a fluctuating interest rate per
annum equal to the Stated Interest Rate plus, following the Expected Final
Payment Date of this Subclass A-4 Note, 0.5% per annum from the date when due
until such amount is paid or duly provided for, payable on the next succeeding
Payment Date, subject, in the case of Step-Up Interest, to the availability of
the Available Collections Amount therefor after making payments entitled to
priority under Sections 3.08 and 3.09 of the Indenture.
If an exchange offer (the "Exchange Offer") registered under the
Securities Act is not consummated or a shelf registration statement (the "Shelf
Registration Statement") under the Securities Act with respect to resales of
the Notes is not declared effective by the Commission on or before December 10,
2000 in accordance with the terms of the Registration Rights Agreement dated as
of March 15, 2000 between the Issuer and Morgan Stanley & Co. International
Limited, thereafter an additional incremental interest amount will accrue on
each subclass of Notes, at an annual rate of 0.50%. Such additional incremental
interest amounts on the Notes will be payable in cash on each Payment Date
until the Exchange Offer is consummated or the Shelf Registration Statement is
declared effective. The Holder of this Note is entitled to the benefits of such
Registration Rights Agreement.
The indebtedness evidenced by the Subclass A-4 Notes is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Claims (as defined in the
Indenture), and this Subclass A-4 Note is issued subject to such provisions.
Each Holder of this Subclass A-4 Note, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to effectuate
the subordination as provided in the Indenture and (c) appoints the Trustee his
attorney-in-fact for such purpose.
A-4-3
The maturity of this Subclass A-4 Note is subject to acceleration upon the
occurrence and during the continuance of the Events of Default specified in the
Indenture.
This Subclass A-4 Note is and will be secured, on a subordinated basis, by
the collateral pledged as security therefor as provided in the Security Trust
Agreement.
Subject to and in accordance with the terms of the Indenture, there will
be distributed monthly on each Payment Date commencing on April 15, 2000, to
the Person in whose name this Subclass A-4 Note is registered at the close of
business on the Record Date with respect to such Payment Date, in the manner
specified in Section 3.08 of the Indenture, such Person's pro rata share (based
on the aggregate percentage of the Outstanding Principal Balance of the
Subclass A-4 Notes held by such Person) of the aggregate amount distributable
to all Holders of Subclass A-4 Notes on such Payment Date.
All amounts payable in respect of this Subclass A-4 Note shall be payable
in U.S. dollars in immediately available funds in the manner provided in the
Indenture to the Holder hereof on the Record Date relating to such payment. The
final payment with respect to this Subclass A-4 Note, however, shall be made
only upon presentation and surrender of this Note by the Noteholder or its
agent at the Corporate Trust Office or agency of the Trustee or Paying Agent
specified in the notice given by the Trustee or Paying Agent with respect to
such final payment. At such time, if any, as this Subclass A-4 Note is issued
in the form of one or more Definitive Notes, payments on a Payment Date shall
be made by check mailed to each Noteholder of such a Definitive Note on the
applicable Record Date at its address appearing on the Register maintained with
respect to Subclass A-4 Notes. Alternatively, upon application in writing to
the Trustee, not later than the applicable Record Date, by a Noteholder of one
or more Definitive Notes of Subclass A-4 having an aggregate principal amount
of not less than $1,000,000, any such payments shall be made by wire transfer
to an account designated by such Noteholder at a financial institution in New
York, New York. The final payment with respect to any such Definitive Note,
however, shall be made only upon presentation and surrender of such Definitive
Note by the Noteholder or its agent at the Corporate Trust Office or agency of
the Trustee or Paying Agent specified in the notice of such final payment given
by the Trustee or Paying Agent. Any reduction in the principal amount of this
Subclass A-4 Note (or any one or more predecessor Subclass A-4 Notes) effected
by any payments made on any Payment Date shall be binding upon all future
Holders of this Subclass A-4 Note and of any Subclass A-4 Note issued upon the
registration of transfer of, in exchange or in lieu of or upon the refinancing
of this Subclass A-4 Note, whether or not noted hereon.
The Holder of this Subclass A-4 Note agrees, by acceptance hereof, to pay
over to the Administrative Agent any money (including principal, Premium and
interest) paid to it in respect of this Subclass A-4 Note in the event that the
Administrative Agent, acting in good faith, determines subsequently that such
monies were not paid in accordance with the priority of payment provisions of
the Indenture or as a result of any other mistake of fact or law on the part of
the Administrative Agent in making such payment.
A-4-4
This Subclass A-4 Note is issuable only in registered form. A Holder may
transfer this Note only by written application to the Registrar stating the
name of the proposed transferee and otherwise complying with the terms of the
Indenture. No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Holder only upon, final acceptance and registration
of the transfer by the Registrar in the Register. When this Subclass A-4 Note
is presented to the Registrar with a request to register the transfer or to
exchange it for an equal principal amount of Subclass A-4 Notes of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions are met
(including, in the case of a transfer, that such Note is duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and Registrar duly executed by the Holder thereof or by an attorney who
is authorized in writing to act on behalf of the Holder). No service charge
shall be made for any registration of transfer or exchange of this Subclass A-4
Note, but the party requesting such new Note or Notes may be required to pay a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith.
Prior to the registration of transfer of this Subclass A-4 Note, the
Issuer and the Trustee may deem and treat the Person in whose name this
Subclass A-4 Note (as of the day of determination or as of such other date as
may be specified in the Indenture) is registered as the absolute owner and
Holder hereof for the purpose of receiving payment of all amounts payable with
respect to this Subclass A-4 Note and for all other purposes, and neither the
Issuer nor the Trustee shall be affected by notice to the contrary.
The Indenture permits the amendment or modification of the Indenture and
the Subclass A-4 Notes by the Issuer with the consent of the Holders of a
majority of the Outstanding Principal Balance of all Notes on the date of any
vote of such Holders (voting as a single class); provided that, without the
consent of each Swap Provider and each Holder of any Notes affected thereby, no
such amendment may (i) modify the provisions of the Indenture or the Notes
setting forth the frequency or the currency of payment of, the maturity of, or
the method of calculation of the amount of, any interest, principal and
Premium, if any, payable in respect of any subclass of Notes, (ii) reduce the
percentage of the aggregate Outstanding Principal Balance of such subclass of
Notes required to approve any amendment or waiver of Section 9.01 of the
Indenture or (iii) alter the manner or priority of payment of such subclass of
Notes (each, a "Basic Terms Modification"). Any such amendment or modification
shall be binding on every Holder hereof, whether or not notation thereof is
made upon this Subclass A-4 Note. The Indenture also permits the Trustee to
agree, without the consent of any Noteholder, (a) to any modification (other
than a Basic Terms Modification) of, or the waiver or authorization of any
breach or prospective breach of, any provision of any Related Document or of
the relevant Notes to correct a manifest error or an error which is of a
formal, minor or technical nature or (b) to modify the provisions of the
Indenture or the Administrative Agency Agreement relating to the timing of
movement of Rental Payments or other monies received or Expenses incurred among
the Accounts by the Administrative Agent.
A-4-5
The subordination provisions contained in Section 3.08, Section 3.09 and
Article X of the Indenture may not be amended or modified without the consent
of each Swap Provider, each provider of a Credit Facility, each Noteholder of
the subclass affected thereby and each Noteholder of any subclass of Notes
ranking senior thereto. In no event shall the provisions set forth in Section
3.08 of the Indenture relating to the priority of the Expenses, Swap Payments
and payments under all Credit Facilities be amended or modified.
The Indenture also contains provisions permitting the Holders of Notes
representing a majority of the Outstanding Principal Balance of the Senior
Class of Notes, on behalf of the Holders of all of the Subclass A-4 Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver shall be conclusive and binding upon all present and future
Holders of this Subclass A-4 Note and of any Subclass A-4 Note issued upon the
registration of transfer of, in exchange or in lieu of or upon the refinancing
of this Subclass A-4 Note, whether or not notation of such consent or waiver is
made upon this Subclass A-4 Note.
The term "Issuer" as used in this Subclass A-4 Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Trustee and the Holders of
Subclass A-4 Notes under the Indenture.
The Subclass A-4 Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Subclass A-4 Note shall in all respects be governed by, and construed
in accordance with, the laws of the State of New York, including all matters of
construction, validity and performance.
Unless the certificate of authentication hereon has been executed by the
Trustee whose name appears below by manual or facsimile signature, this
Subclass A-4 Note shall not be entitled to any benefit under the Indenture, or
be valid or obligatory for any purpose.
A-4-6
IN WITNESS WHEREOF, the Issuer has caused this Subclass A-4 Note to be
signed manually or by facsimile by its Signatory Trustee.
Date:______________ MORGAN STANLEY AIRCRAFT FINANCE
By:______________________________
Name:
Title: Signatory Trustee
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subclass A-4 Notes due March 15, 2025 designated above
and referred to in the within-mentioned Indenture.
Date:______________ BANKERS TRUST COMPANY, not in its
individual capacity but solely
as Trustee
By:_______________________________
Authorized Signatory
A-4-7
[FORM OF] TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ---------------------------------- ------------------
- -------------------------------------------------------------------------------
(Please print or typewrite name and address including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _________________________________________________attorney to
transfer said Note on the books of the Issuer with full power of substitution
in the premises.
Date: [Signature of Transferor]
------------------------------------ -------------------------------------
NOTE: The signature to this assignment
must correspond with the name as
written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
[THE FOLLOWING PROVISIONS TO BE
INCLUDED ON ALL NOTES OTHER THAN
EXCHANGE NOTES AND PERMANENT
REGULATION S GLOBAL NOTES]
In connection with any transfer of this Note occurring prior to the date
which is the earlier of (i) the date the Shelf Registration Statement is
declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms
A-4-8
that without utilizing any general solicitation or general advertising that:
[Check One]
---------
[ ] (a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933 provided by Rule
144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.13 of the Indenture shall have
been satisfied.
Date:_________________________ ___________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
the within-mentioned instrument in
every particular, without
alteration or any change
whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933 and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:_________________________ _______________________________________________
NOTICE: To be executed by an executive officer
EXHIBIT A-5
FORM OF SUBCLASS A-5 FLOATING RATE NOTE
MORGAN STANLEY AIRCRAFT FINANCE
SUBCLASS A-5 NOTE, due March 15, 2025
No. ____ [CUSIP][ISIN][CCN]
$_______
MORGAN STANLEY AIRCRAFT FINANCE, a business trust organized under the laws
of the State of Delaware (herein referred to as the "Issuer"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of __________________________________________________ DOLLARS
($_________) on March 15, 2025 (the "Final Maturity Date") and to pay interest
monthly in arrears on the Outstanding Principal Balance hereof at a fluctuating
interest rate per annum equal to the sum of LIBOR plus 0.58% per annum (the
"Stated Interest Rate") from the date hereof until the Outstanding Principal
Balance hereof is paid or duly provided for, payable on each Payment Date.
Interest on this Subclass A-5 Note in each Interest Accrual Period shall be
calculated on the basis of a 360-day year and the actual number of days elapsed
in such Interest Accrual Period.
This Subclass A-5 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its "Subclass A-5 Notes, due March 15, 2025", issued
under the Trust Indenture dated as of March 3, 1998 and supplemented by an
Indenture Supplement dated as of March 15, 2000 (as amended or supplemented
from time to time, the "Indenture"), between the Issuer and Bankers Trust
Company, as indenture trustee (the "Trustee"). All capitalized terms used in
this Subclass A-5 Note and not defined herein shall have the respective
meanings assigned to such terms in the Indenture. Reference is made to the
Indenture and all indentures supplemental thereto for a statement of the
respective rights and obligations thereunder of the Issuer, the Trustee and the
Subclass A-5 Noteholders. This Subclass A-5 Note is subject to all terms of the
Indenture.
The Issuer will redeem the Outstanding Principal Balance of this Subclass
A-5 Note prior to the Final Maturity Date on the Payment Dates and in the
amounts specified in the Indenture, subject to the availability of the
Available Collections Amount therefor after making payments entitled to
priority under Sections 3.08 and 3.09 of the Indenture.
The Issuer may redeem all or part of the Outstanding Principal Balance of
this Subclass A-5 Note prior to the Final Maturity Date on the Payment Dates,
in the amounts and under the circumstances specified in the Indenture.
A-5-2
Other than in the case of a redemption for taxation reasons specified in
the Indenture, upon any redemption of any amount of the Outstanding Principal
Balance of this Subclass A-5 Note (i) with the application of funds other than
the Available Collections Amount (including proceeds from Refinancing Notes and
proceeds from third parties), such amount shall be redeemed at a Redemption
Price equal to the product of the applicable Redemption Premium applicable
thereto, and the Outstanding Principal Balance thereof and (ii) with the
application of the Available Collections Amount, such amount shall be redeemed
at a Redemption Price equal to the Outstanding Principal Balance thereof.
Any amount of Premium or interest on this Subclass A-5 Note that is not
paid when due shall, to the fullest extent permitted by applicable law, bear
interest at a fluctuating interest rate per annum equal to the Stated Interest
Rate from the date when due until such amount is paid or duly provided for,
payable on the next succeeding Payment Date, subject to the availability of the
Available Collections Amount therefor after making payments entitled to
priority under Section 3.08 of the Indenture.
If an exchange offer (the "Exchange Offer") registered under the
Securities Act is not consummated or a shelf registration statement (the "Shelf
Registration Statement") under the Securities Act with respect to resales of
the Notes is not declared effective by the Commission on or before December 10,
2000 in accordance with the terms of the Registration Rights Agreement dated as
of March 15, 2000 between the Issuer and Morgan Stanley & Co. International
Limited, thereafter an additional incremental interest amount will accrue on
each subclass of Notes, at an annual rate of 0.50%. Such additional incremental
interest amounts on the Notes will be payable in cash on each Payment Date
until the Exchange Offer is consummated or the Shelf Registration Statement is
declared effective. The Holder of this Note is entitled to the benefits of such
Registration Rights Agreement.
The indebtedness evidenced by the Subclass A-5 Notes is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Claims (as defined in the
Indenture), and this Subclass A-5 Note is issued subject to such provisions.
Each Holder of this Subclass A-5 Note, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to effectuate
the subordination as provided in the Indenture and (c) appoints the Trustee his
attorney-in-fact for such purpose.
The maturity of this Subclass A-5 Note is subject to acceleration upon the
occurrence and during the continuance of the Events of Default specified in the
Indenture.
This Subclass A-5 Note is and will be secured, on a subordinated basis, by
the collateral pledged as security therefor as provided in the Security Trust
Agreement.
Subject to and in accordance with the terms of the Indenture, there will
be distributed monthly on each Payment Date commencing on April 15, 2000, to
the Person in
A-5-3
whose name this Subclass A-5 Note is registered at the close of business on the
Record Date with respect to such Payment Date, in the manner specified in
Section 3.08 of the Indenture, such Person's pro rata share (based on the
aggregate percentage of the Outstanding Principal Balance of the Subclass A-5
Notes held by such Person) of the aggregate amount distributable to all Holders
of Subclass A-5 Notes on such Payment Date.
All amounts payable in respect of this Subclass A-5 Note shall be payable
in U.S. dollars in immediately available funds in the manner provided in the
Indenture to the Holder hereof on the Record Date relating to such payment. The
final payment with respect to this Subclass A-5 Note, however, shall be made
only upon presentation and surrender of this Note by the Noteholder or its
agent at the Corporate Trust Office or agency of the Trustee or Paying Agent
specified in the notice given by the Trustee or Paying Agent with respect to
such final payment. At such time, if any, as this Subclass A-5 Note is issued
in the form of one or more Definitive Notes, payments on a Payment Date shall
be made by check mailed to each Noteholder of such a Definitive Note on the
applicable Record Date at its address appearing on the Register maintained with
respect to Subclass A-5 Notes. Alternatively, upon application in writing to
the Trustee, not later than the applicable Record Date, by a Noteholder of one
or more Definitive Notes of Subclass A-5 having an aggregate principal amount
of not less than $1,000,000, any such payments shall be made by wire transfer
to an account designated by such Noteholder at a financial institution in New
York, New York. The final payment with respect to any such Definitive Note,
however, shall be made only upon presentation and surrender of such Definitive
Note by the Noteholder or its agent at the Corporate Trust Office or agency of
the Trustee or Paying Agent specified in the notice of such final payment given
by the Trustee or Paying Agent. Any reduction in the principal amount of this
Subclass A-5 Note (or any one or more predecessor Subclass A-5 Notes) effected
by any payments made on any Payment Date shall be binding upon all future
Holders of this Subclass A-5 Note and of any Subclass A-5 Note issued upon the
registration of transfer of, in exchange or in lieu of or upon the refinancing
of this Subclass A-5 Note, whether or not noted hereon.
The Holder of this Subclass A-5 Note agrees, by acceptance hereof, to pay
over to the Administrative Agent any money (including principal, Premium and
interest) paid to it in respect of this Subclass A-5 Note in the event that the
Administrative Agent, acting in good faith, determines subsequently that such
monies were not paid in accordance with the priority of payment provisions of
the Indenture or as a result of any other mistake of fact or law on the part of
the Administrative Agent in making such payment.
This Subclass A-5 Note is issuable only in registered form. A Holder may
transfer this Note only by written application to the Registrar stating the
name of the proposed transferee and otherwise complying with the terms of the
Indenture. No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Holder only upon, final acceptance and registration
of the transfer by the Registrar in the Register. When this Subclass A-5 Note
is presented to the Registrar with a request to register the transfer or to
exchange it for an equal principal amount of Subclass A-5 Notes of other
authorized denominations, the
A-5-4
Registrar shall register the transfer or make the exchange as requested if its
requirements for such transactions are met (including, in the case of a
transfer, that such Note is duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Trustee and Registrar duly
executed by the Holder thereof or by an attorney who is authorized in writing
to act on behalf of the Holder). No service charge shall be made for any
registration of transfer or exchange of this Subclass A-5 Note, but the party
requesting such new Note or Notes may be required to pay a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith.
Prior to the registration of transfer of this Subclass A-5 Note, the
Issuer and the Trustee may deem and treat the Person in whose name this
Subclass A-5 Note (as of the day of determination or as of such other date as
may be specified in the Indenture) is registered as the absolute owner and
Holder hereof for the purpose of receiving payment of all amounts payable with
respect to this Subclass A-5 Note and for all other purposes, and neither the
Issuer nor the Trustee shall be affected by notice to the contrary.
The Indenture permits the amendment or modification of the Indenture and
the Subclass A-5 Notes by the Issuer with the consent of the Holders of a
majority of the Outstanding Principal Balance of all Notes on the date of any
vote of such Holders (voting as a single class); provided that, without the
consent of each Swap Provider and each Holder of any Notes affected thereby, no
such amendment may (i) modify the provisions of the Indenture or the Notes
setting forth the frequency or the currency of payment of, the maturity of, or
the method of calculation of the amount of, any interest, principal and
Premium, if any, payable in respect of any subclass of Notes, (ii) reduce the
percentage of the aggregate Outstanding Principal Balance of such subclass of
Notes required to approve any amendment or waiver of Section 9.01 of the
Indenture or (iii) alter the manner or priority of payment of such subclass of
Notes (each, a "Basic Terms Modification"). Any such amendment or modification
shall be binding on every Holder hereof, whether or not notation thereof is
made upon this Subclass A-5 Note. The Indenture also permits the Trustee to
agree, without the consent of any Noteholder, (a) to any modification (other
than a Basic Terms Modification) of, or the waiver or authorization of any
breach or prospective breach of, any provision of any Related Document or of
the relevant Notes to correct a manifest error or an error which is of a
formal, minor or technical nature or (b) to modify the provisions of the
Indenture or the Administrative Agency Agreement relating to the timing of
movement of Rental Payments or other monies received or Expenses incurred among
the Accounts by the Administrative Agent.
The subordination provisions contained in Section 3.08, Section 3.09 and
Article X of the Indenture may not be amended or modified without the consent
of each Swap Provider, each provider of a Credit Facility, each Noteholder of
the subclass affected thereby and each Noteholder of any subclass of Notes
ranking senior thereto. In no event shall the provisions set forth in Section
3.08 of the Indenture relating to the priority of the Expenses, Swap Payments
and payments under all Credit Facilities be amended or modified.
A-5-5
The Indenture also contains provisions permitting the Holders of Notes
representing a majority of the Outstanding Principal Balance of the Senior
Class of Notes, on behalf of the Holders of all of the Subclass A-5 Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver shall be conclusive and binding upon all present and future
Holders of this Subclass A-5 Note and of any Subclass A-5 Note issued upon the
registration of transfer of, in exchange or in lieu of or upon the refinancing
of this Subclass A-5 Note, whether or not notation of such consent or waiver is
made upon this Subclass A-5 Note.
The term "Issuer" as used in this Subclass A-5 Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Trustee and the Holders of
Subclass A-5 Notes under the Indenture.
The Subclass A-5 Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Subclass A-5 Note shall in all respects be governed by, and construed
in accordance with, the laws of the State of New York, including all matters of
construction, validity and performance.
Unless the certificate of authentication hereon has been executed by the
Trustee whose name appears below by manual or facsimile signature, this
Subclass A-5 Note shall not be entitled to any benefit under the Indenture, or
be valid or obligatory for any purpose.
A-5-6
IN WITNESS WHEREOF, the Issuer has caused this Subclass A-5 Note to be
signed manually or by facsimile by its Signatory Trustee.
Date:______________ MORGAN STANLEY AIRCRAFT FINANCE
By:______________________________
Name:
Title: Signatory Trustee
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subclass A-5 Notes due March 15, 2025 designated above
and referred to in the within-mentioned Indenture.
Date:______________ BANKERS TRUST COMPANY, not in its
individual capacity but solely
as Trustee
By:_______________________________
Authorized Signatory
A-5-7
[FORM OF] TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ---------------------------------- ------------------
- -------------------------------------------------------------------------------
(Please print or typewrite name and address including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _________________________________________________attorney to
transfer said Note on the books of the Issuer with full power of substitution
in the premises.
Date: [Signature of Transferor]
----------------------------------- -------------------------------------
NOTE: The signature to this assignment
must correspond with the name as
written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
[THE FOLLOWING PROVISIONS TO BE
INCLUDED ON ALL NOTES OTHER THAN
EXCHANGE NOTES AND PERMANENT
REGULATION S GLOBAL NOTES]
In connection with any transfer of this Note occurring prior to the date
which is the earlier of (i) the date the Shelf Registration Statement is
declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms
A-5-8
that without utilizing any general solicitation or general advertising that:
[Check One]
---------
[ ] (a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933 provided by Rule
144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.13 of the Indenture shall have
been satisfied.
Date:_________________________ ___________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
the within-mentioned instrument in
every particular, without
alteration or any change
whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933 and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:_________________________ _______________________________________________
NOTICE: To be executed by an executive officer
EXHIBIT B-2
FORM OF SUBCLASS B-2 FLOATING RATE NOTE
MORGAN STANLEY AIRCRAFT FINANCE
SUBCLASS B-2 NOTE, due March 15, 2025
No. ____ [CUSIP][ISIN][CCN]
$_______
MORGAN STANLEY AIRCRAFT FINANCE, a business trust organized under the laws
of the State of Delaware (herein referred to as the "Issuer"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of ___________________________________________________ DOLLARS
($________) on March 15, 2025 (the "Final Maturity Date") and to pay interest
monthly in arrears on the Outstanding Principal Balance hereof at a fluctuating
interest rate per annum equal to the sum of LIBOR plus 1.05% per annum (the
"Stated Interest Rate") from the date hereof until the Outstanding Principal
Balance hereof is paid or duly provided for, payable on each Payment Date.
Interest on this Subclass B-2 Note in each Interest Accrual Period shall be
calculated on the basis of a 360-day year and the actual number of days elapsed
in such Interest Accrual Period.
This Subclass B-2 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its "Subclass B-2 Notes, due March 15, 2025", issued
under the Trust Indenture dated as of March 3, 1998 and supplemented by an
Indenture Supplement dated as of March 15, 2000 (as amended or supplemented
from time to time, the "Indenture"), between the Issuer and Bankers Trust
Company, as indenture trustee (the "Trustee"). All capitalized terms used in
this Subclass B-2 Note and not defined herein shall have the respective
meanings assigned to such terms in the Indenture. Reference is made to the
Indenture and all indentures supplemental thereto for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Subclass B-2 Noteholders. This Subclass B-2 Note is subject to
all terms of the Indenture.
The Issuer will redeem the Outstanding Principal Balance of this Subclass
B-2 Note prior to the Final Maturity Date on the Payment Dates and in the
amounts specified in the Indenture, subject to the availability of the
Available Collections Amount therefor after making payments entitled to
priority under Section 3.08 of the Indenture.
The Issuer may redeem all or part of the Outstanding Principal Balance of
this Subclass B-2 Note prior to the Final Maturity Date on the Payment Dates,
in the amounts and under the circumstances specified in the Indenture.
B-2-2
Other than in the case of a redemption for taxation reasons specified in
the Indenture, upon any redemption of any amount of the Outstanding Principal
Balance of this Subclass B-2 Note (i) with the application of funds other than
the Available Collections Amount (including proceeds from Refinancing Notes and
proceeds from third parties), such amount shall be redeemed at a Redemption
Price equal to the product of the applicable Redemption Premium applicable
thereto, and the Outstanding Principal Balance thereof and (ii) with the
application of the Available Collections Amount, such amount shall be redeemed
at a Redemption Price equal to the Outstanding Principal Balance thereof.
Following the Expected Final Payment Date of this Subclass B-2 Note and
until the Outstanding Principal Balance hereof is paid or duly provided for,
the Outstanding Principal Balance hereof shall bear additional interest
("Step-Up Interest") at the rate of 1.5% per annum, payable on each Payment
Date, subject to the availability of the Available Collections Amount therefor
after making payments entitled to priority under Sections 3.08 and 3.09 of the
Indenture.
Any amount of Premium or interest (including Step-Up Interest) on this
Subclass B-2 Note that is not paid when due shall, to the fullest extent
permitted by applicable law, bear interest at a fluctuating interest rate per
annum equal to the Stated Interest Rate plus, following the Expected Final
Payment Date of this Subclass B-2 Note, 0.5% per annum from the date when due
until such amount is paid or duly provided for, payable on the next succeeding
Payment Date, subject, in the case of Step-Up Interest, to the availability of
the Available Collections Amount therefor after making payments entitled to
priority under Sections 3.08 and 3.09 of the Indenture.
If an exchange offer (the "Exchange Offer") registered under the
Securities Act is not consummated or a shelf registration statement (the "Shelf
Registration Statement") under the Securities Act with respect to resales of
the Notes is not declared effective by the Commission on or before December 10,
2000 in accordance with the terms of the Registration Rights Agreement dated as
of March 15, 2000 between the Issuer and Morgan Stanley & Co. International
Limited, thereafter an additional incremental interest amount will accrue on
each subclass of Notes, at an annual rate of 0.50%. Such additional incremental
interest amounts on the Notes will be payable in cash on each Payment Date
until the Exchange Offer is consummated or the Shelf Registration Statement is
declared effective. The Holder of this Note is entitled to the benefits of such
Registration Rights Agreement.
The indebtedness evidenced by the Subclass B-2 Notes is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Claims (as defined in the
Indenture), and this Subclass B-2 Note is issued subject to such provisions.
Each Holder of this Subclass B-2 Note, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to effectuate
the subordination as provided in the Indenture and (c) appoints the Trustee his
attorney-in-fact for such purpose.
B-2-3
The maturity of this Subclass B-2 Note is subject to acceleration upon the
occurrence and during the continuance of the Events of Default specified in the
Indenture. The Subclass B-2 Noteholders shall not be permitted to deliver a
Default Notice or to exercise any remedy in respect of any such Event of
Default until all interest and principal on the Class A Notes and the Class B
Notes have been paid in full.
This Subclass B-2 Note is and will be secured, on a subordinated basis, by
the collateral pledged as security therefor as provided in the Security Trust
Agreement.
Subject to and in accordance with the terms of the Indenture, there will
be distributed monthly on each Payment Date commencing on April 15, 2000, to
the Person in whose name this Subclass B-2 Note is registered at the close of
business on the Record Date with respect to such Payment Date, in the manner
specified in Section 3.08 of the Indenture, such Person's pro rata share (based
on the aggregate percentage of the Outstanding Principal Balance of the
Subclass B-2 Notes held by such Person) of the aggregate amount distributable
to all Holders of Subclass B-2 Notes on such Payment Date.
All amounts payable in respect of this Subclass B-2 Note shall be payable
in U.S. dollars in immediately available funds in the manner provided in the
Indenture to the Holder hereof on the Record Date relating to such payment. The
final payment with respect to this Subclass B-2 Note, however, shall be made
only upon presentation and surrender of this Note by the Noteholder or its
agent at the Corporate Trust Office or agency of the Trustee or Paying Agent
specified in the notice given by the Trustee or Paying Agent with respect to
such final payment. At such time, if any, as this Subclass B-2 Note is issued
in the form of one or more Definitive Notes, payments on a Payment Date shall
be made by check mailed to each Noteholder of such a Definitive Note on the
applicable Record Date at its address appearing on the Register maintained with
respect to Subclass B-2 Notes. Alternatively, upon application in writing to
the Trustee, not later than the applicable Record Date, by a Noteholder of one
or more Definitive Notes of Subclass B-2 having an aggregate principal amount
of not less than $1,000,000, any such payments shall be made by wire transfer
to an account designated by such Noteholder at a financial institution in New
York, New York. The final payment with respect to any such Definitive Note,
however, shall be made only upon presentation and surrender of such Definitive
Note by the Noteholder or its agent at the Corporate Trust Office or agency of
the Trustee or Paying Agent specified in the notice of such final payment given
by the Trustee or Paying Agent. Any reduction in the principal amount of this
Subclass B-2 Note (or any one or more predecessor Subclass B-2 Notes) effected
by any payments made on any Payment Date shall be binding upon all future
Holders of this Subclass B-2 Note and of any Subclass B-2 Note issued upon the
registration of transfer of, in exchange or in lieu of or upon the refinancing
of this Subclass B-2 Note, whether or not noted hereon.
The Holder of this Subclass B-2 Note agrees, by acceptance hereof, to pay
over to the Administrative Agent any money (including principal, Premium and
interest) paid to it in respect of this Subclass B-2 Note in the event that the
Administrative Agent, acting in good faith, determines subsequently that such
monies were not paid in accordance with the priority of
B-2-4
payment provisions of the Indenture or as a result of any other mistake of fact
or law on the part of the Administrative Agent in making such payment.
This Subclass B-2 Note is issuable only in registered form. A Holder may
transfer this Note only by written application to the Registrar stating the
name of the proposed transferee and otherwise complying with the terms of the
Indenture. No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Holder only upon, final acceptance and registration
of the transfer by the Registrar in the Register. When this Subclass B-2 Note
is presented to the Registrar with a request to register the transfer or to
exchange it for an equal principal amount of Subclass B-2 Notes of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions are met
(including, in the case of a transfer, that such Note is duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and Registrar duly executed by the Holder thereof or by an attorney who
is authorized in writing to act on behalf of the Holder). No service charge
shall be made for any registration of transfer or exchange of this Subclass B-2
Note, but the party requesting such new Note or Notes may be required to pay a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith.
Prior to the registration of transfer of this Subclass B-2 Note, the
Issuer and the Trustee may deem and treat the Person in whose name this
Subclass B-2 Note (as of the day of determination or as of such other date as
may be specified in the Indenture) is registered as the absolute owner and
Holder hereof for the purpose of receiving payment of all amounts payable with
respect to this Subclass B-2 Note and for all other purposes, and neither the
Issuer nor the Trustee shall be affected by notice to the contrary.
The Indenture permits the amendment or modification of the Indenture and
the Subclass B-2 Notes by the Issuer with the consent of the Holders of a
majority of the Outstanding Principal Balance of all Notes on the date of any
vote of such Holders (voting as a single class); provided that, without the
consent of each Swap Provider and each Holder of any Notes affected thereby, no
such amendment may (i) modify the provisions of the Indenture and the Notes
setting forth the frequency or the currency of payment of, the maturity of, or
the method of calculation of the amount of, any interest, principal and
Premium, if any, payable in respect of such subclass of Notes, (ii) reduce the
percentage of the aggregate Outstanding Principal Balance of any subclass of
Notes required to approve any amendment or waiver of Section 9.01 of the
Indenture or (iii) alter the manner or priority of payment of any subclass of
Notes (each, a "Basic Terms Modification"). Any such amendment or modification
shall be binding on every Holder hereof, whether or not notation thereof is
made upon this Subclass B-2 Note. The Indenture also permits the Trustee to
agree, without the consent of any Noteholder, (a) to any modification (other
than a Basic Terms Modification) of, or the waiver or authorization of any
breach or prospective breach of, any provision of any Related Document or of
the relevant Notes to correct a manifest error or an error which is of a
formal, minor or technical nature or (b) to modify the provisions of the
Indenture or the Administrative Agency Agreement relating to the timing of
movement of Rental Payments or other monies received or Expenses incurred among
the Accounts by the Administrative Agent.
B-2-5
The subordination provisions contained in Section 3.08, Section 3.09 and
Article X of the Indenture may not be amended or modified without the consent
of each Swap Provider, each provider of a Credit Facility, each Noteholder of
the subclass affected thereby and each Noteholder of any subclass of Notes
ranking senior thereto. In no event shall the provisions set forth in Section
3.08 of the Indenture relating to the priority of the Expenses, Swap Payments
and payments under all Credit Facilities be amended or modified.
The Indenture also contains provisions permitting the Holders of Notes
representing a majority of the Outstanding Principal Balance of the Senior
Class of Notes, on behalf of the Holders of all of the Subclass B-2 Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver shall be conclusive and binding upon all present and future
Holders of this Subclass B-2 Note and of any Subclass B-2 Note issued upon the
registration of transfer of, in exchange or in lieu of or upon the refinancing
of this Subclass B-2 Note, whether or not notation of such consent or waiver is
made upon this Subclass B-2 Note.
The term "Issuer" as used in this Subclass B-2 Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Trustee and the Holders of
Subclass B-2 Notes under the Indenture.
The Subclass B-2 Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Subclass B-2 Note shall in all respects be governed by, and construed
in accordance with, the laws of the State of New York, including all matters of
construction, validity and performance.
Unless the certificate of authentication hereon has been executed by the
Trustee whose name appears below by manual or facsimile signature, this
Subclass B-2 Note shall not be entitled to any benefit under the Indenture, or
be valid or obligatory for any purpose.
B-2-6
IN WITNESS WHEREOF, the Issuer has caused this Subclass B-2 Note to be
signed manually or by facsimile by its Signatory Trustee.
Date:______________ MORGAN STANLEY AIRCRAFT FINANCE
By:______________________________
Name:
Title: Signatory Trustee
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subclass B-2 Notes due March 15, 2025 designated above
and referred to in the within-mentioned Indenture.
Date:______________ BANKERS TRUST COMPANY, not in its
individual capacity but solely
as Trustee
By:_______________________________
Authorized Signatory
B-2-7
[FORM OF] TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ---------------------------------- ------------------
- -------------------------------------------------------------------------------
(Please print or typewrite name and address including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _________________________________________________attorney to
transfer said Note on the books of the Issuer with full power of substitution
in the premises.
Date: [Signature of Transferor]
------------------------------------ -------------------------------------
NOTE: The signature to this assignment
must correspond with the name as
written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
[THE FOLLOWING PROVISIONS TO BE
INCLUDED ON ALL NOTES OTHER THAN
EXCHANGE NOTES AND PERMANENT
REGULATION S GLOBAL NOTES]
In connection with any transfer of this Note occurring prior to the date
which is the earlier of (i) the date the Shelf Registration Statement is
declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms
B-2-8
that without utilizing any general solicitation or general advertising that:
[Check One]
---------
[ ] (a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933 provided by Rule
144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.13 of the Indenture shall have
been satisfied.
Date:_________________________ ___________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
the within-mentioned instrument in
every particular, without
alteration or any change
whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933 and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:_________________________ _______________________________________________
NOTICE: To be executed by an executive officer
EXHIBIT C-2
FORM OF SUBCLASS C-2 FIXED RATE NOTE
MORGAN STANLEY AIRCRAFT FINANCE
9.60% SUBCLASS C-2 NOTE, due March 15, 2025
No. ____ [CUSIP][ISIN][CCN]
$_______
MORGAN STANLEY AIRCRAFT FINANCE, a business trust organized under the laws
of the State of Delaware (herein referred to as the "Issuer"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of ________________________________ DOLLARS ($________) on March
15, 2025 (the "Final Maturity Date") and to pay interest monthly in arrears on
the Outstanding Principal Balance hereof at the rate of 9.60% per annum (the
"Stated Interest Rate") from the date hereof until the Outstanding Principal
Balance hereof is paid or duly provided for, payable on each Payment Date.
Interest on this Subclass C-2 Note for each Interest Accrual Period shall be
calculated on the basis of a 360-day year and one-twelfth of an annual interest
payment and, in the case of a payment other than on an Interest Payment Date,
on the basis of a 360- day year consisting of twelve 30-day months.
This Subclass C-2 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its "Subclass C-2 Notes, due March 15, 2025", issued
under the Trust Indenture dated as of March 3, 1998 and supplemented by an
Indenture Supplement dated as of March 15, 2000 (as amended or supplemented
from time to time, the "Indenture"), between the Issuer and Bankers Trust
Company, as indenture trustee (the "Trustee"). All capitalized terms used in
this Subclass C-2 Note and not defined herein shall have the respective
meanings assigned to such terms in the Indenture. Reference is made to the
Indenture and all indentures supplemental thereto for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Subclass C-2 Noteholders. This Subclass C-2 Note is subject to
all terms of the Indenture.
The Issuer will redeem the Outstanding Principal Balance of this Subclass
C-2 Note prior to the Final Maturity Date on the Payment Dates and in the
amounts specified in the Indenture, subject to the availability of the
Available Collections Amount therefor after making payments entitled to
priority under Section 3.08 of the Indenture.
The Issuer may redeem all or part of the Outstanding Principal Balance of
this Subclass C-2 Note prior to the Final Maturity Date on the Payment Dates,
in the amounts and under the circumstances specified in the Indenture.
C-2-2
Other than in the case of a redemption for taxation reasons specified in
the Indenture, upon any redemption of any amount of the Outstanding Principal
Balance of this Subclass C-2 Note equal to the higher of (i) the discounted
value of the Scheduled Principal Payment Amounts and interest of this Subclass
C-2 Note from the Redemption Date to and including the Expected Final Payment
Date discounted at a rate equal to the Treasury Yield plus 0.5% and (ii) the
Outstanding Principal Balance thereof.
Any amount of Premium or interest on this Subclass C-2 Note that is not
paid when due shall, to the fullest extent permitted by applicable law, bear
interest at an interest rate per annum equal to the Stated Interest Rate from
the date when due until such amount is paid or duly provided for, payable on
the next succeeding Payment Date, subject to the availability of the Available
Collections Amount therefor after making payments entitled to priority under
Section 3.08 of the Indenture.
If an exchange offer (the "Exchange Offer") registered under the
Securities Act is not consummated or a shelf registration statement (the "Shelf
Registration Statement") under the Securities Act with respect to resales of
the Notes is not declared effective by the Commission on or before December 10,
2000 in accordance with the terms of the Registration Rights Agreement dated as
of March 15, 2000 between the Issuer and Morgan Stanley & Co. International
Limited, thereafter an additional incremental interest amount will accrue on
each subclass of Notes, at an annual rate of 0.50%. Such additional incremental
interest amounts on the Notes will be payable in cash on each Payment Date
until the Exchange Offer is consummated or the Shelf Registration Statement is
declared effective. The Holder of this Note is entitled to the benefits of such
Registration Rights Agreement.
The indebtedness evidenced by the Subclass C-2 Notes is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Claims (as defined in the
Indenture), and this Subclass C-2 Note is issued subject to such provisions.
Each Holder of this Subclass C-2 Note, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to effectuate
the subordination as provided in the Indenture and (c) appoints the Trustee his
attorney-in-fact for such purpose.
The maturity of this Subclass C-2 Note is subject to acceleration upon the
occurrence and during the continuance of the Events of Default specified in the
Indenture. The Subclass C-2 Noteholders shall not be permitted to deliver a
Default Notice or to exercise any remedy in respect of any such Event of
Default until all interest and principal on the Class A Notes and the Class B
Notes have been paid in full.
This Subclass C-2 Note is and will be secured, on a subordinated basis, by
the collateral pledged as security therefor as provided in the Security Trust
Agreement.
Subject to and in accordance with the terms of the Indenture, there will
be distributed monthly on each Payment Date commencing on April 15, 2000, to
the Person in
C-2-3
whose name this Subclass C-2 Note is registered at the close of business on the
Record Date with respect to such Payment Date, in the manner specified in
Section 3.08 of the Indenture, such Person's pro rata share (based on the
aggregate percentage of the Outstanding Principal Balance of the Subclass C-2
Notes held by such Person) of the aggregate amount distributable to all Holders
of Subclass C-2 Notes on such Payment Date.
All amounts payable in respect of this Subclass C-2 Note shall be payable
in U.S. dollars in immediately available funds in the manner provided in the
Indenture to the Holder hereof on the Record Date relating to such payment. The
final payment with respect to this Subclass C-2 Note, however, shall be made
only upon presentation and surrender of this Note by the Noteholder or its
agent at the Corporate Trust Office or agency of the Trustee or Paying Agent
specified in the notice given by the Trustee or Paying Agent with respect to
such final payment. At such time, if any, as this Subclass C-2 Note is issued
in the form of one or more Definitive Notes, payments on a Payment Date shall
be made by check mailed to each Noteholder of such a Definitive Note on the
applicable Record Date at its address appearing on the Register maintained with
respect to Subclass C-2 Notes. Alternatively, upon application in writing to
the Trustee, not later than the applicable Record Date, by a Noteholder of one
or more Definitive Notes of Subclass C-2 having an aggregate principal amount
of not less than $1,000,000, any such payments shall be made by wire transfer
to an account designated by such Noteholder at a financial institution in New
York, New York. The final payment with respect to any such Definitive Note,
however, shall be made only upon presentation and surrender of such Definitive
Note by the Noteholder or its agent at the Corporate Trust Office or agency of
the Trustee or Paying Agent specified in the notice of such final payment given
by the Trustee or Paying Agent. Any reduction in the principal amount of this
Subclass C-2 Note (or any one or more predecessor Subclass C-2 Notes) effected
by any payments made on any Payment Date shall be binding upon all future
Holders of this Subclass C-2 Note and of any Subclass C-2 Note issued upon the
registration of transfer of, in exchange or in lieu of or upon the refinancing
of this Subclass C-2 Note, whether or not noted hereon.
The Holder of this Subclass C-2 Note agrees, by acceptance hereof, to pay
over to the Administrative Agent any money (including principal, Premium and
interest) paid to it in respect of this Subclass C-2 Note in the event that the
Administrative Agent, acting in good faith, determines subsequently that such
monies were not paid in accordance with the priority of payment provisions of
the Indenture or as a result of any other mistake of fact or law on the part of
the Administrative Agent in making such payment.
This Subclass C-2 Note is issuable only in registered form. A Holder may
transfer this Note only by written application to the Registrar stating the
name of the proposed transferee and otherwise complying with the terms of the
Indenture. No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Holder only upon, final acceptance and registration
of the transfer by the Registrar in the Register. When this Subclass C-2 Note
is presented to the Registrar with a request to register the transfer or to
exchange it for an equal principal amount of Subclass C-2 Notes of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions
C-2-4
are met (including, in the case of a transfer, that such Note is duly endorsed
or accompanied by a written instrument of transfer in form satisfactory to the
Trustee and Registrar duly executed by the Holder thereof or by an attorney who
is authorized in writing to act on behalf of the Holder). No service charge
shall be made for any registration of transfer or exchange of this Subclass C-2
Note, but the party requesting such new Note or Notes may be required to pay a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith.
Prior to the registration of transfer of this Subclass C-2 Note, the
Issuer and the Trustee may deem and treat the Person in whose name this
Subclass C-2 Note (as of the day of determination or as of such other date as
may be specified in the Indenture) is registered as the absolute owner and
Holder hereof for the purpose of receiving payment of all amounts payable with
respect to this Subclass C-2 Note and for all other purposes, and neither the
Issuer nor the Trustee shall be affected by notice to the contrary.
The Indenture permits the amendment or modification of the Indenture and
the Subclass C-2 Notes by the Issuer with the consent of the Holders of a
majority of the Outstanding Principal Balance of all Notes on the date of any
vote of such Holders (voting as a single class); provided that, without the
consent of each Swap Provider and each Holder of any Notes affected thereby, no
such amendment may (i) modify the provisions of the Indenture and the Notes
setting forth the frequency or the currency of payment of, the maturity of, or
the method of calculation of the amount of, any interest, principal and
Premium, if any, payable in respect of such subclass of Notes, (ii) reduce the
percentage of the aggregate Outstanding Principal Balance of any subclass of
Notes required to approve any amendment or waiver of Section 9.01 of the
Indenture or (iii) alter the manner or priority of payment of any subclass of
Notes (each, a "Basic Terms Modification"). Any such amendment or modification
shall be binding on every Holder hereof, whether or not notation thereof is
made upon this Subclass C-2 Note. The Indenture also permits the Trustee to
agree, without the consent of any Noteholder, (a) to any modification (other
than a Basic Terms Modification) of, or the waiver or authorization of any
breach or prospective breach of, any provision of any Related Document or of
the relevant Notes to correct a manifest error or an error which is of a
formal, minor or technical nature or (b) to modify the provisions of the
Indenture or the Administrative Agency Agreement relating to the timing of
movement of Rental Payments or other monies received or Expenses incurred among
the Accounts by the Administrative Agent.
The subordination provisions contained in Section 3.08, Section 3.09 and
Article X of the Indenture may not be amended or modified without the consent
of each Swap Provider, each provider of a Credit Facility, each Noteholder of
the subclass affected thereby and each Noteholder of any subclass of Notes
ranking senior thereto. In no event shall the provisions set forth in Section
3.08 of the Indenture relating to the priority of the Expenses, Swap Payments
and payments under all Credit Facilities be amended or modified.
The Indenture also contains provisions permitting the Holders of Notes
representing a majority of the Outstanding Principal Balance of the Senior
Class of Notes, on behalf of the Holders of all of the Subclass C-2 Notes, to
waive compliance by the Issuer with
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certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver shall be
conclusive and binding upon all present and future Holders of this Subclass C-2
Note and of any Subclass C-2 Note issued upon the registration of transfer of,
in exchange or in lieu of or upon the refinancing of this Subclass C-2 Note,
whether or not notation of such consent or waiver is made upon this Subclass
C-2 Note.
The term "Issuer" as used in this Subclass C-2 Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Trustee and the Holders of
Subclass C-2 Notes under the Indenture.
The Subclass C-2 Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Subclass C-2 Note shall in all respects be governed by, and construed
in accordance with, the laws of the State of New York, including all matters of
construction, validity and performance.
Unless the certificate of authentication hereon has been executed by the
Trustee whose name appears below by manual or facsimile signature, this
Subclass C-2 Note shall not be entitled to any benefit under the Indenture, or
be valid or obligatory for any purpose.
C-2-6
IN WITNESS WHEREOF, the Issuer has caused this Subclass C-2 Note to be
signed manually or by facsimile by its Signatory Trustee.
Date:______________ MORGAN STANLEY AIRCRAFT FINANCE
By:______________________________
Name:
Title: Signatory Trustee
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subclass C-2 Notes due March 15, 2025 designated above
and referred to in the within-mentioned Indenture.
Date:______________ BANKERS TRUST COMPANY, not in its
individual capacity but solely
as Trustee
By:_______________________________
Authorized Signatory
C-2-7
[FORM OF] TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ---------------------------------- ------------------
- -------------------------------------------------------------------------------
(Please print or typewrite name and address including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _________________________________________________attorney to
transfer said Note on the books of the Issuer with full power of substitution
in the premises.
Date: [Signature of Transferor]
------------------------------------ -------------------------------------
NOTE: The signature to this assignment
must correspond with the name as
written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
[THE FOLLOWING PROVISIONS TO BE
INCLUDED ON ALL NOTES OTHER THAN
EXCHANGE NOTES AND PERMANENT
REGULATION S GLOBAL NOTES]
In connection with any transfer of this Note occurring prior to the date
which is the earlier of (i) the date the Shelf Registration Statement is
declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms
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that without utilizing any general solicitation or general advertising that:
[Check One]
---------
[ ] (a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933 provided by Rule
144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.13 of the Indenture shall have
been satisfied.
Date:_________________________ ___________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
the within-mentioned instrument in
every particular, without
alteration or any change
whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933 and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:_________________________ _______________________________________________
NOTICE: To be executed by an executive officer