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EXECUTION COPY
AMENDED AND RESTATED LOAN AGREEMENT
dated as of
March 15, 2000
between
MORGAN STANLEY AIRCRAFT FINANCE
and
MORGAN STANLEY DEAN WITTER & CO.
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TABLE OF CONTENTS
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PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.....................................................1
ARTICLE 2
LOANS
SECTION 2.01. Loans ..........................................................4
SECTION 2.02. Borrowings......................................................4
SECTION 2.03. Termination of Commitment and Maturity of Loans.................5
SECTION 2.04. Interest........................................................5
SECTION 2.05. Repayment of Interest and Loans.................................5
SECTION 2.06. MSAF Facility Covenant..........................................6
SECTION 2.07. General Provisions as to Payments...............................6
SECTION 2.08. Note ..........................................................6
ARTICLE 3
MISCELLANEOUS
SECTION 3.01. Notices.........................................................6
SECTION 3.02. Amendments and Waivers..........................................7
SECTION 3.03. No Bankruptcy Petition..........................................8
SECTION 3.04. Successors and Assigns..........................................8
SECTION 3.05. Governing Law; Submission to Jurisdiction.......................8
SECTION 3.06. Counterparts; Effectiveness; Third Party Beneficiaries..........8
SECTION 3.07. WAIVER OF JURY TRIAL............................................9
SECTION 3.08. Entire Agreement................................................9
SECTION 3.09. Captions........................................................9
EXHIBIT A - Form of Note.....................................................A-1
AMENDED AND RESTATED LOAN AGREEMENT dated as of March 15, 2000
between MORGAN STANLEY AIRCRAFT FINANCE, a Delaware statutory business trust
("MSAF") and MORGAN STANLEY DEAN WITTER & CO., a Delaware corporation ( "MSDW").
WHEREAS, MSDW has agreed to make loans to MSAF;
NOW, THEREFORE, the parties agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used in this
Agreement, have the following meanings:
"Agreement" means this Loan Agreement, as amended and in effect from
time to time.
"Business Day" means any day on which United States dollar deposits
may be traded on the London inter-bank market and commercial banks and foreign
exchange markets are open in New York, New York and London, England.
"Commitment" means MSDW's obligation to make Loans to MSAF at any
time, up to a maximum of the Commitment Amount at such time.
"Commitment Amount" means, at any time, the sum of (A) $30,000,000
less (B) the aggregate amount of outstanding Loans at such time.
"Drawing" means any borrowing that MSAF makes under the MSAF
Facilities in order to make a payment of principal of or interest on MSAF's
securitization debt.
"ILFC Agreement" means the Amended and Restated Custody and Loan
Agreement dated as of August 6, 1999 among MSAF, the other MSAF Lessors (as
defined therein) and International Lease Finance Corporation.
"Indenture" means the indenture dated as of March 3, 1998 between
MSAF and Bankers Trust Company, pursuant to which the securitization debt of
MSAF is issued.
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"Indenture Default" means any time following the delivery of "Default
Notice" (as defined in the indenture) under the Indenture or during the
continuance of an "Acceleration Default" (as defined in the Indenture).
"Intercreditor Agreement" means the Intercreditor Agreement dated as
of March 3, 1998 among MSDW, International Lease Finance Corporation and the
other MSAF Facility Providers (as defined therein).
"Loan" means any loan made by MSDW to MSAF pursuant to Section
2.01(a) of this Agreement.
"MSDW" has the meaning specified in the preamble to this Agreement.
"MSDW Drawing Share" means on the occasion of any Drawing, the amount
which is equal to the product of (x) the applicable Total MSAF Facilities
Drawing Amount multiplied by (y) the fraction which is the quotient of (A) the
Commitment Amount immediately before such Drawing divided by (B) the aggregate
amounts committed and available for drawing under the MSAF Facilities
immediately before such Drawing.
"MSDW Repayment Share" means, on each Payment Date, the amount which
is equal to the product of (x) the applicable Total MSAF Facilities Repayment
Amount multiplied by (y) the fraction which is the quotient of (A) outstanding
Loans immediately before the applicable repayment divided by (B) the aggregate
amounts outstanding and required to be repaid under the MSAF Facilities
immediately before such repayment.
"MSAF" has the meaning specified in the preamble to this Agreement.
"MSAF Facility" means (i) this Agreement, (ii) the ILFC Agreement and
(iii) any other credit or liquidity enhancement facility provided to MSAF that
ranks pari passu with this Agreement and the ILFC Agreement.
"MSAF Facility Provider" means the provider of any MSAF Facility.
"Note" means the promissory note of MSAF payable to the order of MSDW
substantially in the form of Exhibit A, evidencing MSAF's obligation to repay
the Loans.
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"Notice of Additional Borrowing" has the meaning specified in Section
2.02(c).
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Repayment" has the meaning specified in Section 2.05(a).
"Payment Date" means the 15th day of each month (or, if such day is
not a Business Day, the next succeeding Business Day).
"Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality of such government or political subdivision.
"Subsidiary" means, as to any Person, any corporation or other entity
of which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person.
"Termination Date" means the earlier of the date (i) of the repayment
or defeasance (but not refinancing) of all of MSAF's securitization debt and
(ii) of the sale at any time by MSAF and its Subsidiaries of all aircraft owned
by MSAF and its Subsidiaries at such time.
"Total MSAF Facilities Drawing Amount" means, at the time of each
Drawing, the total amount to be drawn by MSAF under the MSAF Facilities in order
to make a payment of principal of or interest on MSAF's securitization debt on
the next Payment Date.
"Total MSAF Facilities Repayment Amount" means, on each Payment Date,
the total amount available to MSAF for the repayment of amounts outstanding
under the MSAF Facilities, after the payment of all amounts required to be paid
on such Payment Date pursuant to Section 3.08(a)(x) or, during an Indenture
Default, Section 3.08(b)(vi) of the Indenture.
"United States" means the United States of America.
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ARTICLE 2
LOANS
SECTION 2.01. Loans. (a) MSDW agrees, on the terms and conditions set
forth in this Agreement, to make Loans to MSAF from time to time during the term
of this Agreement to enable MSAF to make a payment of principal of or interest
on MSAF's securitization debt; provided that the amount of any such Loan shall
not exceed the Commitment Amount in effect immediately before such Loan is made.
(b) MSAF may borrow under this Section 2.01, repay Loans as provided
in Section 2.05 and reborrow under this Section 2.01, at any time during the
term of this Agreement.
SECTION 2.02. Borrowings. (a) Not later than 8:30 P.M. (New York City
time) on the Business Day before the date of any Loan that MSAF wishes MSDW
to make, MSAF shall give MSDW notice (a "Notice of Borrowing"), specifying:
(i) the applicable Total MSAF Facilities Drawing Amount;
(ii) the amount of such Loan, which shall be equal to the related MSDW
Drawing Share; and
(iii) the date (which shall be a Business Day) of such Loan.
(b) Not later than 5:30 P.M. (New York City time) on the date of any
Loan specified in a Notice of Borrowing, MSDW shall make available the amount of
such Loan to MSAF, in lawful money of the United States in Federal or other
funds immediately available in New York City.
(c) If, for any reason, on the date of any Loan MSAF does not receive
the full applicable Total Drawing Amount under the MSAF Facilities, not later
than 8:30 P.M. (New York City time) on the date of such Loan, MSAF may give MSDW
notice of an additional Loan (a "Notice of Additional Borrowing"), specifying:
(i) the shortfall in such Total MSAF Facilities Drawing Amount; and
(ii) the amount of such additional Loan, which may be any amount up to
the Commitment Amount; and
(iii) the date (which shall be the next Business Day) of such
additional Loan.
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(d) Not later than 5:30 P.M. (New York City time) on the date of any
additional Loan specified in a Notice of Additional Borrowing, MSDW shall make
available the amount of the applicable additional Loan to MSAF, in lawful money
of the United States in Federal or other funds immediately available in New York
City.
SECTION 2.03. Termination of Commitment and Maturity of Loans. On the
Termination Date, the Commitment shall terminate and on the next Payment Date,
unless repaid earlier pursuant to Section 2.05, each Loan shall mature, and its
principal amount shall, to the extent that there are amounts available to MSAF
on such Payment Date after the payment of all amounts required to be paid on
such Payment Date pursuant to Section 3.08(a)(x) or, during an Indenture
Default, Section 3.08(b)(vi) of the Indenture, be due and payable (together with
any and all interest accrued thereon).
SECTION 2.04. Interest. Each Loan shall bear interest on its
outstanding principal amount, for each day from the date such Loan is made until
it is repaid, at a rate of 3% per annum, on the basis of a 360-day year
consisting of twelve 30- day months.
SECTION 2.05. Repayment of Interest and Loans. (a) On each Payment
Date, to the extent that there are amounts available to MSAF on such Payment
Date after the payment of all amounts required to be paid on such Payment Date
pursuant to Section 3.08(a)(x) or, during an Indenture Default, Section
3.08(b)(vi) of the Indenture, MSAF shall repay interest on and principal of
outstanding Loans in accordance with Section 3.08(a)(xi) or, during an Indenture
Default, Section 3.08(b)(vii) of the Indenture. Not later than 12:30 P.M. (New
York City time) on the second Business Day before each Payment Date on which
MSAF intends to repay any interest on or principal of Loans, MSAF shall give
MSDW notice (a "Notice of Repayment"), specifying:
(i) the Total MSAF Facilities Repayment Amount that it intends to
repay on such Payment Date; and
(ii) the MSDW Repayment Share.
(b) On each Payment Date following a Notice of Repayment, MSAF shall
pay to MSDW the MSDW Repayment Share specified in such Notice of Repayment,
which shall be applied to repay:
(i) first, all interest then accrued in accordance with Section 2.04;
and
(ii) second, the principal amount of any Loans then outstanding.
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SECTION 2.06. MSAF Facility Covenant. MSAF covenants with MSDW that
it shall not at any time enter into any MSAF Facility unless the applicable MSAF
Facility Provider simultaneously becomes a party to the Intercreditor Agreement.
SECTION 2.07. General Provisions as to Payments. MSAF shall make each
payment pursuant to Section 2.05 at the times specified in Section 3.06(d) of
the Indenture and at such place as MSDW shall specify by notice to MSAF.
SECTION 2.08. Note. (a) MSAF's obligation to repay any Loans shall be
evidenced by the Note.
(b) MSDW shall record the date and amount of each Loan and the date
and amount of each payment of principal made by MSAF with respect to each such
Loan by endorsing on the schedule forming a part of the Note appropriate
notations to evidence such information with respect to each such Loan then
outstanding; provided that MSDW's failure to make (or any error in making) any
such endorsement shall not affect MSAF's obligations under this Agreement or
under the Note. MSDW is hereby irrevocably authorized by MSAF so to endorse the
Note and to attach to and make a part of the Note a continuation of such
schedule as and when required.
ARTICLE 3
MISCELLANEOUS
SECTION 3.01. Notices. Any notice, request or information required or
permissible under this Agreement will be in writing and in English. Notices will
be delivered in person or sent by fax, letter (mailed airmail, certified and
return receipt requested), or by expedited delivery addressed to the parties as
set forth below in this Section 3.01. In the case of a fax, notice will be
deemed received upon the date set forth on the confirmation of receipt produced
by the sender's fax machine immediately after the fax is sent. In the case of a
mailed letter, notice will be deemed received on the tenth day after mailing. In
the case of a notice sent by expedited delivery, notice will be deemed received
on the date of delivery set forth in the records of the Person which
accomplished the delivery. If any notice is sent by more than one of the above
listed methods, notice will be deemed received on the earliest possible date in
accordance with the above provisions. Notices will be addressed as follows:
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if to MSAF, to:
Morgan Stanley Aircraft Finance
c/o Cabot Aircraft Services Limited
Regus House
Harcourt Centre
Harcourt Road
Dublin 2
Ireland
Attention: Mr. Kieran O'Keefe
Fax: 353-1-402-9496
with a copy to:
Morgan Stanley & Co. International Limited
25 Cabot Square
Canary Wharf
London E14 4QA
England, United Kingdom
Attention: Mr. Scott Peterson
Fax: 44-171-425 4328
if to Morgan Stanley, to:
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
United States of America
Attention: Ms. Dian Packard
Fax: 1-212-762-7337
or to such other address as either party shall from time to time designate in
writing to the other party.
SECTION 3.02. Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(b) No failure or delay by either party in exercising any right,
power or privilege under this Agreement shall operate as a waiver of such right,
power or privilege nor shall any single or partial exercise of such right, power
or privilege
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preclude any other or further exercise of such right, power or privilege or the
exercise of any other right, power or privilege. The rights and remedies
provided in this Agreement shall be cumulative and not exclusive of any rights
or remedies provided by law.
SECTION 3.03. No Bankruptcy Petition. MSDW agrees that it shall not
take any steps for the purposes of procuring the appointment of any
administrative receiver or the making of any administrative order or for
instituting any bankruptcy, reorganization, arrangement, insolvency, winding-up,
liquidation, composition or any like proceedings under the laws of any
jurisdiction in respect of MSAF or in respect of any of MSAF's liabilities, as a
result of any claim or interest of MSDW under this Agreement.
SECTION 3.04. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties to this
Agreement and their respective successors and assigns; provided that neither
party may assign, delegate or otherwise transfer any of its rights and
obligations under this Agreement without the consent of the other party.
SECTION 3.05. Governing Law; Submission to Jurisdiction. (a) This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
(b) The parties to this Agreement agree that any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated by
this Agreement may be brought in the United States District Court for the
Southern District of New York or any other New York State court sitting in New
York City, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or in the future have to the laying of the
venue of any such suit, action or proceeding in any such court or that any such
suit, action or proceeding which is brought in any such court has been brought
in an inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 3.01 shall
be deemed effective service of process on such party.
SECTION 3.06. Counterparts; Effectiveness; Third Party Beneficiaries.
(a) This Agreement may be signed in any number of counterparts, each of which
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shall be an original, with the same effect as if the signatures to each such
counterpart were upon the same instrument.
(b) This Agreement shall become effective when (i) each party has
received a counterpart of this Agreement signed by the other party or facsimile
or other satisfactory confirmation that the other party has signed a counterpart
of this Agreement and (ii) MSDW has received the duly executed Note.
(c) No provision of this Agreement is intended to confer upon any
Person other than the parties to this Agreement any rights or remedies under
this Agreement.
SECTION 3.07. WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
SECTION 3.08. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
SECTION 3.09. Captions. The captions used in this Agreement are
included for convenience of reference only and shall be ignored in the
construction or interpretation of this Agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be duly executed by its authorized representative or officer, as applicable, as
of the day and year first above written.
MORGAN STANLEY AIRCRAFT
FINANCE
By: /s/ Brian J. Gill
-------------------------
Name:
Title:
MORGAN STANLEY DEAN WITTER &
CO.
By: /s/ Alexander Frank
-------------------------
Name:
Title:
EXHIBIT A
FORM OF NOTE
Wilmington, Delaware
March 15, 2000
For value received, MORGAN STANLEY AIRCRAFT FINANCE, a Delaware
statutory business trust ("MSAF"), promises to pay to the order of MORGAN
STANLEY DEAN WITTER & CO., a Delaware corporation ("MSDW"), the unpaid principal
amount of each Loan made by MSDW to MSAF pursuant to the Loan Agreement referred
to below, as provided in the Loan Agreement. MSAF promises to pay interest on
the unpaid principal amount of each such Loan on the dates and at the rate
provided for in the Loan Agreement. All such payments of principal and interest
shall be made in lawful money of the United States in Federal or other
immediately available funds at MSDW's address specified in or pursuant to
Section 3.01 of the Loan Agreement.
All Loans made by MSDW and all repayments of the principal thereof
shall be recorded by MSDW by endorsing appropriate notations to evidence such
information with respect to each such Loan then outstanding on the schedule
forming a part of this Note, or on a continuation of such schedule attached to
and made a part of this Note; provided that the failure of MSDW to make (or any
error in making) any such endorsement shall not affect MSAF's obligations under
this Note or the Loan Agreement.
This note is the Note referred to in the Amended and Restated Loan
Agreement dated as of March 15, 2000 between MSAF and MSDW (as amended and in
effect from time to time, the "Loan Agreement"). MSAF's obligations under this
Note are subordinated to various other obligations of MSAF, as set forth in the
Indenture. Capitalized terms used and not defined in this Note have the meanings
specified in the Loan Agreement.
MORGAN STANLEY AIRCRAFT
FINANCE
By:
-------------------------
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
________________________________________________________________________________
Amount of
Amount of Principal
Date Loan Repaid Notation Made By
________________________________________________________________________________
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