1
EXHIBIT 99.11
, 20
Bankers Trust Company
Four Albany Street, 9th Floor
Mail Stop 5091
New York, New York 10006
RE: EXCHANGE AGENT AGREEMENT
Ladies and Gentlemen:
AerCo Limited, a Jersey, Channel Islands corporation ("AerCo"),
proposes to make an offer (the "Exchange Offer"), upon the terms and subject to
the conditions set forth in a prospectus dated o (the "Prospectus"), and the
accompanying letter of transmittal (the "Letter of Transmittal"), to exchange
Notes due July 15, 2025 (the "New Notes") of AerCo for up to all outstanding Old
Notes due July 15, 2025 (the "Old Notes") of AerCo.
AerCo hereby appoints Bankers Trust Company to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to Bankers Trust Company.
The Exchange Offer is expected to be commenced by AerCo on or about .
The Letter of Transmittal accompanying the Prospectus (or in the case of book
entry securities, the ATOP system) is to be used by the holders of the Old Notes
to accept the Exchange Offer and contains instructions with respect to the
delivery of certificates for Old Notes tendered in connection therewith.
The Exchange Offer shall expire at 5:00pm, New York City time, on
or on such later date or time to which AerCo may extend the Exchange Offer (the
"Expiration Date"). Subject to the terms and conditions set forth in the
Prospectus, AerCo expressly reserves the right to extend the Exchange Offer at
any time and from time to time by giving oral (confirmed in writing) or written
notice to you before 9:00 A.M., New York City time, on the business day
following the previously scheduled Expiration Date.
2
AerCo expressly reserves the right to amend or modify the terms of, or
withdraw or terminate the Exchange Offer and not to accept for exchange any Old
Notes at any time for any reason. AerCo will give oral (confirmed in writing) or
written notice of any amendment, modification, withdrawal, termination or
nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following Instructions:
1. You will perform such duties and only such duties as are set forth
in (i) the section of the Prospectus captioned "The Exchange Offer", (ii) the
Letter of Transmittal and Notice of Guaranteed Delivery to be distributed to
holders of Old Notes (together, "Other Exchange Materials"), and (iii) this
Agreement, and all other actions reasonably necessary in connection therewith;
provided, however, that in no way will your general duty to act in good faith be
discharged by the foregoing.
2. You will establish an account with respect to the Old Notes at The
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of
the Exchange Offer within two business days after the date of the Prospectus,
and any financial institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry delivery of the Old Notes by causing the
Book- Entry Transfer Facility to transfer such Old Notes into your account in
accordance with the Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Notes (or confirmation of book-entry transfer into your
account at the Book-Entry Transfer Facility) and any other documents delivered
or mailed to you by or for holders of the Old Notes to ascertain whether: (i)
the Letters of Transmittal and any such other documents are duly executed and
properly completed in accordance with instructions set forth therein and (ii)
the Old Notes have otherwise been properly and validly tendered. In each case
where the Letter of Transmittal or any other document has been improperly
completed or executed or any of the certificates for Old Notes are not in proper
form for transfer or some other irregularity in connection with the acceptance
of such securities in the Exchange Offer exists, you will endeavor promptly to
inform the presenters of the need for fulfillment of all requirements and to
take any other action as may be necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of any of the Board of Directors of AerCo (such
approval, if given orally, to be confirmed in writing) or any other party
designated by a Director in writing, you are authorized to waive any
irregularities in connection with any tender of Old Notes pursuant to the
Exchange Offer.
2
3
5. Tenders of Old Notes may be made only as set forth in the Other
Exchange Materials and in the section of the Prospectus captioned "The Exchange
Offer--Procedures for Tendering Old Notes", and Old Notes shall be considered
properly and validly tendered to you only when tendered in accordance with the
procedures set forth therein.
6. You shall advise AerCo of any Old Notes received subsequent to the
Expiration Date and accept its instructions with respect thereto.
7. You shall accept tenders in accordance with the terms, conditions
and procedures set forth in the Prospectus and Other Exchange Materials.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, AerCo will notify you (such notice if given orally, to be
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Old Notes properly and validly tendered, and you, on behalf of AerCo, will
exchange such Old Notes for New Notes and cause such Old Notes to be canceled in
accordance with instructions from AerCo. Delivery of New Notes will be made on
behalf of AerCo by you in an aggregate principal amount of New Notes equal to
the aggregate principal amount of Old Notes validly tendered; provided, however,
that in all cases, Old Notes tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of certificates for such Old Notes
(or confirmation of book-entry transfer into your account at the Book-Entry
Transfer Facility), a properly completed and duly executed Letter of Transmittal
(or facsimile thereof) with any required signature guarantees and any other
required documents.
9. Tenders pursuant to the Exchange Offer may be withdrawn at any
time prior to the Expiration Date.
10. AerCo shall not be required to accept for exchange any Old Notes
tendered. Notice of any decision by AerCo not to exchange any Old Notes tendered
shall be given (and confirmed in writing) by AerCo to you.
11. If, pursuant to the Exchange Offer, AerCo does not accept for
exchange all or part of the Old Notes tendered for any reason, you shall as soon
as practicable after the expiration or termination of the Exchange Offer return
those certificates for unaccepted Old Notes (or effect an appropriate book-entry
transfer), together with any related required documents and the Letters of
Transmittal relating thereto that are in your possession, to the persons who
deposited them with you.
3
4
12. All certificates for reissued Old Notes, unaccepted Old Notes or
for New Notes shall be forwarded by (a) first-class certified mail, return
receipt requested, under a blanket surety bond protecting you and AerCo from
loss or liability arising out of the non-receipt or non-delivery of such
certificates or (b) by registered mail insured separately for the replacement
value of each of such certificates.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those set
forth in (i) the section of the Prospectus captioned "The Exchange
Offer," (ii) the Other Exchange Materials, and (iii) this Agreement,
and all other actions reasonably necessary in connection therewith or
as may be subsequently agreed to in writing by you and AerCo;
(b) will be regarded as making no representations and having
no responsibilities as to the validity, sufficiency, value or
genuineness of any of the certificates or the Old Notes represented
thereby deposited with you pursuant to the Exchange Offer, and will not
be required to and will make no representation as to the validity,
value or genuineness of the Exchange Offer;
(c) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or
liability, unless you shall have been furnished with indemnity
reasonably satisfactory to you;
(d) may reasonably conclusively rely on and shall be fully
protected in acting in reliance upon any certificate, instrument,
opinion, notice, letter, telegram or other document or security
delivered to you and reasonably believed by you to be genuine and to
have been signed by the proper party or parties;
(e) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its
due
4
5
execution and validity and effectiveness of its provisions, but
also as to the truth and accuracy of any information contained therein,
which you shall reasonably believe to be genuine or to have been signed
or represented by a proper person or persons;
(f) may conclusively rely on and shall be fully protected in
acting upon written or oral instructions from any officer of AerCo;
(g) may consult with your counsel with respect to any
questions relating to your duties and responsibilities and the advice
or opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by you hereunder in good faith and in accordance with the advice
or opinion of such counsel; and
(h) shall not advise any person tendering Old Notes pursuant
to the Exchange Offer as to the wisdom of making such tender or as to
the market value or decline or appreciation in market value of any Old
Notes.
15. You shall at AerCo's expense take such action as may from time to
time be requested by AerCo or its counsel (and such other action as you may
reasonably deem appropriate) to furnish copies of the Prospectus, the Other
Exchange Offer Materials or such other forms as may be approved from time to
time by AerCo, to all persons requesting such documents and to accept and comply
with telephone requests for information relating to the Exchange Offer; provided
that such information shall relate only to the procedures for accepting (or
withdrawing from) the Exchange Offer. AerCo will furnish you with copies of such
documents at your request. All other requests for information relating to the
Exchange Offer shall be directed to AerFi Administrative Services Limited c/o
AerFi Group plc, Aviation House, Shannon, Co. Clare, Ireland Attention: Company
Secretary, Tel: +353 61 360000, Fax: +353 61 360113 (the "Administrative Agent")
or such other person as any Director of AerCo shall designate.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to the Administrative Agent and to such
other person or persons as any of the Board of Directors of AerCo may request,
daily (and more frequently during the week immediately preceding the Expiration
Date and if otherwise requested) up to and including the Expiration Date, as to
the number of Old Notes which have been tendered pursuant to the Exchange Offer
and the items received by you pursuant to this Agreement, separately reporting
and giving cumulative totals as to items properly received and items improperly
5
6
received. In addition, you will also inform, and cooperate in making available
to, AerCo or any such other person or persons upon oral request made from time
to time prior to the Expiration Date of such other information as it or he or
she reasonably requests. Such cooperation shall include, without limitation, the
granting by you to the Administrative Agent and such person as AerCo may
reasonably request of access to those persons on your staff who are responsible
for receiving tenders in order to ensure that immediately prior to the
Expiration Date AerCo shall have received information in sufficient detail to
enable it to decide whether to extend the Exchange Offer. You shall prepare a
final list of all persons whose tenders were accepted, the aggregate principal
amount of the Old Notes tendered, the aggregate principal amount of the Old
Notes accepted and deliver said list to the Administrative Agent.
17. The Other Exchange Offer Materials shall be stamped by you as to
the date and the time of receipt thereof and shall be preserved by you for a
period of time at least equal to the period of time you preserve other records
pertaining to the transfer of securities. You shall dispose of unused Letters of
Transmittal and other surplus materials by returning them to the Administrative
Agent.
18. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any, borrowed by
AerCo or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to compensation as previously agreed upon by you and AerCo.
20. You hereby acknowledge receipt of the Prospectus and the Other
Exchange Materials and further acknowledge that you have examined each of them.
Any inconsistency between this Agreement, on the one hand, and the Prospectus
and the Other Exchange Materials (as they may be amended from time to time), on
the other hand, shall be resolved in favor of the Prospectus and the Other
Exchange Materials, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent, which, in case of inconsistency, shall
be controlled by this Agreement.
21. AerCo covenants and agrees to indemnify and hold you and your
officials, directors, employees and agents completely harmless in your capacity
as Exchange Agent hereunder against any loss, liability, cost or expense,
including attorneys' fees and expenses, arising out of or in connection with
any act, omission, delay or refusal made by you in reliance upon any signature,
6
7
endorsement, assignment, certificate, order, request, notice, instruction or
other instrument or document reasonably believed by you to be valid, genuine and
sufficient and in accepting any tender or effecting any transfer of Old Notes
reasonably believed by you in good faith to accept any tenders or effect any
transfer of Old Notes, provided, however, that AerCo shall not be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of your gross negligence or willful misconduct. In no case
shall AerCo be liable under this indemnity with respect to any claim against you
unless AerCo shall be notified by you, by letter or by facsimile confirmed by
letter, of the written assertion of a claim against you or of any other action
commenced against you, promptly after you shall have received any such written
assertion or notice of commencement of action; provided, however, that failure
to so notify AerCo shall not relieve AerCo of its obligations hereunder except
as to such liability that is a direct result of the Exchange Agent's failure to
notify AerCo. AerCo shall be entitled to participate at its own expense in the
defense of any such claim or other action, and, if AerCo so elects, AerCo shall
assume the defense of any suit brought to enforce any such claim (provided that
no conflict of interests under applicable law exists). In the event that AerCo
shall assume the defense of any such suit, AerCo shall not be liable for the
fees and expenses of any additional counsel thereafter retained by you so long
as AerCo shall retain counsel satisfactory to you to defend such suit.
22. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the internal laws of the
State of New York.
23. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
24. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
25. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
7
8
26. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to AerCo:
AerCo Limited
c/o AerFi Administrative Services Limited
Aviation House
Shannon
C. Clare
Ireland
Facsimile: +353 61 360113/220
Attention: Company Secretary
and
22 Greenville Street
St. Helier
Jersey, JE4 8PX
Channel Islands
Facsimile: +353 61 706 298
Attention: Mourant & Co. Secretaries Limited, Company Secretary
If to the Exchange Agent:
Bankers Trust Company
Four Albany Street
Mail Stop 5041
New York, New York 10006
Facsimile: (212) 669-0772
Attention: Reorganization Unit
27. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 19, 21, 22 and 25 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the
8
9
Administrative Agent any certificates for securities of AerCo, funds or
property then held by you as Exchange Agent under this Agreement.
28. This Agreement shall be binding and effective as of the date
hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
AERCO LIMITED
By: --------------------------------
Name:
Title:
Accepted as the date first above written:
BANKERS TRUST COMPANY, as Exchange Agent
By: ------------------------------------
Name:
Title:
9