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Exhibit 4.7
TRUST SUPPLEMENT NO. 13
TRUST SUPPLEMENT NO. 13, dated as of March 15, 2001 (the "Trust
Supplement"), among AIRPLANES LIMITED, a limited liability company organized
under the laws of Jersey, Channel Islands ("Airplanes Limited"), AIRPLANES U.S.
TRUST, a Delaware business trust formed pursuant to the Airplanes Trust
Agreement (as defined in the Pass Through Agreement (as defined below))
("Airplanes Trust" and, together with Airplanes Limited, the "Note Issuers"),
and BANKERS TRUST COMPANY, a New York banking corporation ("Bankers Trust"), not
in its individual capacity but solely as Pass Through Trustee hereunder (the
"Trustee"), to the Pass Through Trust Agreement dated as of March 28, 1996,
among the Note Issuers and the Trustee (the "Pass Through Agreement").
W I T N E S S E T H:
WHEREAS, the Pass Through Agreement, unlimited as to the aggregate
principal amount of Certificates (unless otherwise specified herein, capitalized
terms used herein without definition having the respective meanings specified
therefor in the Pass Through Agreement) which may be issued thereunder, has
heretofore been executed and delivered;
WHEREAS, pursuant to the terms and conditions of the Pass Through
Agreement, as supplemented by Supplement A dated as of March 16, 1998, this
Trust Supplement and any other supplement thereto (the "Agreement"), the Trustee
shall purchase those Notes issued by the Note Issuers of the same tenor and
designation as the Certificates issued hereunder and shall hold such Notes in
trust for the benefit of the Holders of the Certificates issued hereunder;
WHEREAS, the Trustee hereby declares the creation of this Trust (the
"Trust") for the benefit of the Holders of the Certificates issued hereunder,
and the initial Holders of the Certificates issued hereunder, as the
beneficiaries of the Trust created hereby, by their respective acceptances of
the Certificates issued hereunder, join in the creation of this Trust with the
Trustee;
WHEREAS, all of the conditions and requirements necessary to make this
Trust 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
Trust Supplement in the form and with the terms hereof have been in all respects
duly authorized; and
WHEREAS, this Trust Supplement is subject to the provisions of the
Trust Indenture Act of 1939, and shall, to the extent applicable, be governed by
such provisions.
NOW, THEREFORE, in consideration of the premises herein, it is agreed
among the Note Issuers and the Trustee as follows:
ARTICLE I
THE CERTIFICATES
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Section 1.01. The Certificates.
There is hereby created a subclass of Certificates to be issued under
the Agreement to be designated and known as "Subclass A-9 Pass Through
Certificates" (hereinafter referred to as the "Subclass A-9 Certificates"). Each
Subclass A-9 Certificate represents a Fractional Undivided Interest in the Trust
created hereby. The terms and conditions applicable to the Subclass A-9
Certificates are as follows:
(a) The aggregate principal amount of the Subclass A-9
Certificates that shall be authenticated under the Agreement (except
for Subclass A-9 Certificates authenticated and delivered pursuant to
Sections 3.03, 3.04 and 3.05 of the Pass Through Agreement) upon their
initial issuance is $750,000,000.
(b) The Subclass A-9 Certificates shall be in the form
attached hereto as Exhibit A. The Subclass A-9 Certificates shall be
Book-Entry Certificates and shall be subject to the conditions set
forth in the Letter of Representations between the Note Issuers and the
Clearing Agency attached hereto as Exhibit B.
(c) The proceeds of the sale of the Subclass A-9 Certificates
shall be used to purchase from the Note Issuers on the date hereof the
following Notes (the "Corresponding Notes") in the aggregate principal
amounts set forth below:
Notes Principal Amount Maturity
----- ---------------- --------
Airplanes Limited Subclass A-9 Notes $ 682,444,117.47 March 15, 2019
Airplanes Trust Subclass A-9 Notes $ 67,555,882.53 March 15, 2019
ARTICLE II
ACQUISITION OF THE NOTES; ISSUANCE OF CERTIFICATES
Section 2.01. Acquisition of Notes.
(a) The Note Issuers hereby convey, transfer, sell, set over and
otherwise assign to the Trust for the benefit of the Holders of the Subclass A-9
Certificates, the Corresponding Notes and all monies due and to become due
thereunder and all rights to collateral and proceeds thereof and all rights to
enforce the same.
(b) In connection with such transfer, not later than the date hereof,
each Note Issuer shall deposit the Corresponding Notes issued by it with the
Trustee on behalf of the Trust and cause such Notes to be registered in the name
of the Trustee in the register therefor maintained by such Note Issuer.
(c) The transfer of the Corresponding Notes accomplished hereby is
absolute, it being understood that the transfer is intended by the parties
hereto as a sale.
Section 2.02. Acceptance by Trustee.
The Trustee, by its execution and delivery of this Trust Supplement,
acknowledges its acceptance of all right, title and interest in and to the
Corresponding Notes
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to be acquired hereby and declares that the Trustee holds and will hold such
right, title and interest, together with all other property constituting the
Trust Property of the Trust, on behalf of the Trust for the benefit of all then
present and future Holders of the Subclass A-9 Certificates, upon the trusts set
forth in the Agreement. By its payment for and acceptance of each Subclass A-9
Certificate issued to it under the Agreement, each initial Certificateholder of
a Subclass A-9 Certificate, as a grantor of the Trust created hereby, shall
thereby join in the creation and declaration of the Trust.
Section 2.03. Limitation of Powers.
The Trust created hereby shall be constituted solely for the purpose of
making the investment in the Corresponding Notes provided for herein, and,
except as set forth herein or in this Trust Supplement or in the Agreement, the
Trustee shall not be authorized or empowered to acquire any other investments or
engage in any other activities and, in particular, the Trustee shall not be
authorized or empowered to do anything that would cause the Trust created hereby
to fail to qualify as a "grantor trust" for federal income tax purposes.
Section 2.04. Issuance of Certificates.
On the date hereof, the Trustee shall execute on behalf of the Trust,
authenticate and deliver, in fully registered form only, the Subclass A-9
Certificates upon the written order of the Note Issuers, in authorized
denominations and in the names specified by the Note Issuers. The Trustee shall
execute on behalf of the Trust, deliver and authenticate Subclass A-9
Certificates equalling the aggregate principal amount of the Corresponding Notes
to be purchased by the Trustee pursuant to this Trust Supplement, and evidencing
the entire ownership interest in the Trust created hereby. The Trustee shall
issue on behalf of the Trust and deliver such Certificates, in authorized
denominations and in such Fractional Undivided Interests, so as to result in the
receipt of consideration in an amount equal to the aggregate principal amount of
such Corresponding Notes and, concurrently therewith, the Trustee shall purchase
on behalf of the Trust, pursuant to the terms and conditions of the related
Trust Supplement, such Notes at a purchase price equal to the amount of such
consideration so received.
The Subclass A-9 Certificates offered and sold in reliance on Rule 144A
shall be issued initially in the form of one or more permanent global
certificates (each, a "Rule 144A Global Certificate"). The aggregate principal
amount of each Rule 144A Global Certificate may from time to time be increased
or decreased by adjustments made on the records of The Depository Trust Company,
as the Clearing Agency, in accordance with the instructions given by the Holder
thereof, as hereinafter provided.
The Subclass A-9 Certificates offered and sold in offshore transactions
in reliance on Regulation S shall be issued initially in the form of one or more
temporary global certificates (each, a "Temporary Regulation S Global
Certificate"). At any time following the applicable Regulation S Global
Certificate Exchange Date, upon receipt by the Trustee of a certificate
substantially in the form of Exhibit C hereto, one or more permanent global
certificates (each, a "Permanent Regulation S Global Certificate" and, together
with each Temporary Regulation S Global Certificate, the "Regulation S Global
Certificates," such Regulation S Global Certificates and the Rule 144A Global
Certificates being referred to herein as the "Global Certificates") shall be
deposited with The Depository Trust Company, as the Clearing Agency, and the
Registrar shall reflect on its books and records the date and a
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decrease in the principal amount of the Temporary Regulation S Global
Certificate in an amount equal to the principal amount of the beneficial
interest in such Temporary Regulation S Global Certificate transferred.
Section 2.05. Restrictive Legends. Unless and until a Subclass A-9
Certificate is exchanged for an Exchange Certificate in connection with an
effective registration under the Securities Act pursuant to the Registration
Rights Agreement, each Rule 144A Global Certificate and, until at least the 41st
day after the Closing Date and receipt by the Note Issuers and the Trustee of a
certificate substantially in the form of Exhibit D hereto, each Regulation S
Global Certificate shall bear the following legend on the face thereof:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR WITH ANY SECURITIES
REGULATORY AUTHORITY IN ANY JURISDICTION AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER OR BENEFICIAL OWNER OF THIS
CERTIFICATE (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS
NOT A U.S. PERSON AND IS ACQUIRING THIS CERTIFICATE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT,
(2) AGREES THAT IT WILL NOT, BEFORE TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE OF THIS CERTIFICATE AND THE LAST DATE THAT
AIRPLANES GROUP OR ANY OF ITS AFFILIATES OWNED THIS CERTIFICATE, RESELL
OR OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A) TO AIRPLANES GROUP OR
ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (D)
PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH
CASE (A) THROUGH (E) ABOVE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE IN THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION, AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
CERTIFICATE WITHIN THE TWO-YEAR TIME PERIOD REFERRED TO ABOVE, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE TRANSFER NOTICE
ATTACHED HERETO AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT. THE TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE
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TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN
VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Global Certificate, whether or not an Exchange Certificate, shall
also bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE
WITH THE RESTRICTIONS SET FORTH IN SECTION 2.07 OF THE TRUST
SUPPLEMENT.
Section 2.06. Exchange Offer. Upon the occurrence of an Exchange Offer
in accordance with the Registration Rights Agreement, the Trust shall, upon
cancellation by the Trustee of the Registrable Certificates surrendered for
exchange, issue, and the Trustee shall authenticate, one or more global Exchange
Certificates in the names specified by the Note Issuers and in an aggregate
principal amount equal to the principal amount of the Registrable Certificates
tendered for acceptance by persons that are not (x) broker-dealers, (y) persons
participating in the distribution of the Exchange Certificates or (z) persons
who are affiliates (as defined in Rule 144 under the Securities Act) of the
Trust and accepted for exchange in the Exchange Offer. Concurrently with the
issuance of such Exchange Certificates, the Trustee shall cause the aggregate
principal amount of the Exchange Certificates to be recorded and the aggregate
principal amount of the Subclass A-9 Certificates to be reduced accordingly and
shall direct the Registrar to make a corresponding recordation and reduction in
its books and records of the corresponding book-entry interests. Book-entry
interests corresponding to a Subclass A-9 Certificate so exchanged for an
Exchange Certificate shall be in turn exchanged for book-entry interests in such
Exchange Certificate.
Section 2.07. Special Transfer Provisions. Unless and until a Subclass
A-9 Certificate is exchanged for an Exchange Certificate under an effective
registration statement under the Securities Act pursuant to the Registration
Rights Agreement, the following provisions shall apply:
(a) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of an interest in a Rule
144A Global Certificate or a Definitive Certificate issued in exchange for an
interest in such Rule 144A Global Certificate to a QIB (excluding Non-U.S.
Persons):
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(i) If the Subclass A-9 Certificate to be transferred consists
of (x) Definitive Certificates, the Registrar shall register the
transfer if such transfer is being made by a proposed transferor who
has checked the box provided for on the form of such Certificate
stating, or has otherwise advised the Trustee and the Registrar in
writing, that the sale has been made in compliance with the provisions
of Rule 144A to a transferee who has signed the certification provided
for on the form of such Certificate stating, or has otherwise advised
the Trustee and the Registrar in writing, that it is purchasing such
Certificate for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account
are QIBs within the meaning of Rule 144A, are aware that the sale to it
is being made in reliance on Rule 144A and acknowledge that they have
received such information regarding Airplanes Limited and Airplanes
Trust as they have requested pursuant to Rule 144A or have determined
not to request such information and that they are aware that the
transferor is relying upon their foregoing representations in order to
claim the exemption from registration provided by Rule 144A or (y) an
interest in a Rule 144A Global Certificate, the transfer of such
interest may be effected only through the book-entry system maintained
by The Depository Trust Company.
(ii) If the proposed transferee is a Clearing Agency
Participant, and the Subclass A-9 Certificate to be transferred is a
Definitive Certificate, upon receipt by the Registrar of the documents
referred to in Clause (i) and instructions given in accordance with The
Depository Trust Company's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an
increase in the principal amount at maturity of the Rule 144A Global
Certificate in an amount equal to the principal amount at maturity of
the Definitive Certificate to be transferred, and the Trustee shall
cancel the Definitive Certificate so transferred.
(b) Transfers of Interests in a Temporary Regulation S Global
Certificate. The following provisions shall apply with respect to registration
of any proposed transfer of interests in a Temporary Regulation S Global
Certificate:
(i) The Registrar shall register the transfer of any interest
in a Temporary Regulation S Global Certificate (x) if the proposed
transferee is a Non-U.S. Person and the proposed transferor has
delivered to the Registrar a certificate substantially in the form of
Exhibit D hereto or (y) if the proposed transferee is a QIB and the
proposed transferor has checked the box provided for on the form of
Subclass A-9 Certificate stating, or has otherwise advised the Trustee
and the Registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of such Certificate stating, or
has otherwise advised the Trustee and the Registrar in writing, that it
is purchasing such Certificate for its own account or an account with
respect to which it exercises sole investment discretion and that it
and any such account are QIBs within the meaning of Rule 144A, are
aware that the sale to them is being made in reliance on Rule 144A and
acknowledge that they have received such information regarding the
Trust as they have requested pursuant to Rule 144A or have determined
not to request such information and that they are aware that the
transferor is relying upon their foregoing representations in order to
claim the exemption from registration provided by Rule 144A.
(ii) If the proposed transferee is a Clearing Agency
Participant that provides the documents referred to in clause (i)(y)
above, upon receipt by the
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Registrar of such documents and instructions given in accordance with
The Depository Trust Company's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Rule 144A Global Certificate,
in an amount equal to the principal amount of the Temporary Regulation
S Global Certificate to be transferred, and the Trustee shall decrease
the amount of the Temporary Regulation S Global Certificate.
(c) Transfers of interests in a Permanent Regulation S Global
Certificate or Definitive Certificates issued in exchange for an interest in a
Permanent Regulation S Global Certificate to U.S. Persons. The Registrar shall
register any transfer of interests in a Permanent Regulation S Global
Certificate or Definitive Certificates issued in exchange for an interest in a
Permanent Regulation S Global Certificate to U.S. Persons without requiring any
additional certification.
(d) Transfers to Non-U.S. Persons at any Time. The following provisions
shall apply with respect to any transfer of a Subclass A-9 Certificate to a
Non-U.S. Person:
(i) Prior to the applicable Regulation S Global Certificate
Exchange Date, the Registrar shall register any proposed transfer of a
Subclass A-9 Certificate to a Non-U.S. Person upon receipt of a
certificate substantially in the form of Exhibit D hereto from the
proposed transferor.
(ii) On and after the applicable Regulation S Global
Certificate Exchange Date, the Registrar shall register any proposed
transfer of a Subclass A-9 Certificate to any Non-U.S. Person if the
Subclass A-9 Certificate to be transferred is a Definitive Certificate
or an interest in a Rule 144A Global Certificate, upon receipt of a
certificate substantially in the form of Exhibit D from the proposed
transferor.
(iii) (a) If the proposed transferor is a Clearing Agency
Participant holding a beneficial interest in a Rule 144A Global
Certificate, upon receipt by the Registrar of (x) the documents, if
any, required by paragraph (ii) and (y) instructions in accordance with
The Depository Trust Company's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and a
decrease in the principal amount of a Rule 144A Global Certificate in
an amount equal to the principal amount of the beneficial interest in
such Rule 144A Global Certificate to be transferred, and (b) if the
proposed transferee is a Clearing Agency Participant, upon receipt by
the Registrar of instructions given in accordance with The Depository
Trust Company's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount of the Regulation S Global Certificate of the relevant
subclass in an amount equal to the principal amount of the beneficial
interest in such Rule 144A Global Certificate or any Definitive
Certificates issued in exchange for such interest in such Rule 144A
Global Certificate to be transferred, and the Trustee shall cancel the
Definitive Certificate, if any, so transferred or decrease the amount
of the Rule 144A Global Certificate.
(e) Private Placement Legend. Upon the transfer, exchange or
replacement of Subclass A-9 Certificates not bearing the Private Placement
Legend, the Registrar shall deliver Subclass A-9 Certificates that do not bear
the Private Placement Legend. Upon the transfer, exchange or replacement of
Subclass A-9 Certificates bearing the Private Placement Legend, the Registrar
shall deliver only Subclass A-9 Certificates that bear the Private Placement
Legend unless either (i) the Private Placement Legend is no longer
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required under Section 2.05 hereof or, (ii) in respect of a Definitive
Certificate, there is delivered to the Registrar an opinion of counsel
reasonably satisfactory to the Trustee to the effect that neither such legend
nor the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act.
(f) General. By its acceptance of any Subclass A-9 Certificate bearing
the Private Placement Legend, each Holder of such Certificate acknowledges the
restrictions on transfer of such Certificate set forth in this Trust Supplement
and in the Private Placement Legend and agrees that it will transfer such
Certificate only as provided in this Trust Supplement. The Registrar shall not
register a transfer of any Subclass A-9 Certificate unless such transfer
complies with the restrictions on transfer of such Certificate set forth in this
Trust Supplement. In connection with any transfer of Subclass A-9 Certificates,
each Holder agrees by its acceptance of such Certificates to furnish the Trustee
the certifications and legal opinions described herein to confirm that such
transfer is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act; provided that
the Trustee shall not be required to determine (but may rely on a determination
made by Airplanes Limited and Airplanes Trust with respect to) the sufficiency
of any such legal opinions.
The Trustee shall retain copies of all letters, notices and other
written communications received pursuant to this Section 2.07. Airplanes Limited
and Airplanes Trust shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Trustee.
Section 2.08. Definitions. For the purposes of this Article II, the
following terms shall have the meanings indicated below:
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
"Exchange Certificates" means Exchange Certificates as defined and
described in the Registration Rights Agreement.
"Exchange Offer" means the Exchange Offer as defined and described in
the Registration Rights Agreement.
"Non-U.S. Person" means a person who is not a U.S. person, as defined
in Regulation S.
"Private Placement Legend" means the legend initially set forth on the
Certificates in the form set forth in Section 2.05 hereof.
"Registrable Certificates" means Registrable Certificates as defined
and described in the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of March 15, 2001, between the Note Issuers, Morgan Stanley
& Co. Incorporated and Lehman Brothers Inc. and any other agreement entered into
between the Note Issuers and a purchaser of Certificates providing for the
registration of the transfer of such Certificates under the Securities Act.
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"Registration Statement" means the Registration Statement as defined
and described in the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Certificate Exchange Date" means the date of
exchange of any Temporary Regulation S Global Certificate for any Permanent
Regulation S Global Certificate, which shall be the forty-first day after March
15, 2001.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
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 Trust Supplement or the due
execution hereof by the Note Issuers, or for or in respect of the recitals and
statements contained herein, all of which recitals and statements are made
solely by the Note Issuers.
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 Agreement, and this Trust Supplement is executed
and accepted on behalf of the Trustee, subject to all the terms and conditions
set forth in the Agreement, 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. Pass Through Agreement Ratified.
Except and so far as herein expressly provided, all of the provisions,
terms and conditions of the Pass Through Agreement are in all respects ratified
and confirmed; and the Pass Through Agreement and this Trust Supplement shall be
taken, read and construed as one and the same instrument.
Section 4.02. GOVERNING LAW.
THIS TRUST SUPPLEMENT AND THE SUBCLASS A-9 CERTIFICATES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
Section 4.03. Execution in Counterparts.
This Trust 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.
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IN WITNESS WHEREOF, the Trustee and each Note Issuer have caused this
Trust Supplement to be duly executed as of the day and year first written above.
AIRPLANES LIMITED
By: /s/ Hugh Jenkins
-----------------------------------------
Name: Hugh Jenkins
Title: Director
AIRPLANES U.S. TRUST
By: /s/ Hugh Jenkins
-----------------------------------------
Name: Hugh Jenkins
Title: Controlling Trustee
BANKERS TRUST COMPANY, not in its individual
capacity but solely as Trustee
By: /s/ Peter Morse
-----------------------------------------
Name: Peter Morse
Title: Vice President
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EXHIBIT A
FORM OF SUBCLASS A-9 CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR WITH ANY SECURITIES REGULATORY
AUTHORITY IN ANY JURISDICTION AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER OR BENEFICIAL OWNER OF THIS CERTIFICATE (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS CERTIFICATE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT,
(2) AGREES THAT IT WILL NOT, BEFORE TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE OF THIS CERTIFICATE AND THE LAST DATE THAT AIRPLANES GROUP OR ANY OF
ITS AFFILIATES OWNED THIS CERTIFICATE, RESELL OR OTHERWISE TRANSFER THIS
CERTIFICATE EXCEPT (A) TO AIRPLANES GROUP OR ANY SUBSIDIARY THEREOF, (B) INSIDE
THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE (A) THROUGH
(E) ABOVE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE IN THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS CERTIFICATE WITHIN THE TWO-YEAR TIME PERIOD REFERRED TO ABOVE, THE HOLDER
MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE TRANSFER NOTICE ATTACHED HERETO
AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. THE TRUST AGREEMENT CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO BANKERS TRUST
COMPANY, A NEW YORK BANKING CORPORATION, OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN
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AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL CERTIFICATE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN SECTION 2.07 OF THE TRUST SUPPLEMENT.
AIRPLANES SUBCLASS A-9 PASS THROUGH TRUST
Airplanes Subclass A-9 Floating Rate Pass Through Certificate
Issuance Date: March 15, 2001
Final Maturity Date: March 15, 2019
Evidencing a fractional undivided interest in the
Airplanes Subclass A-9 Pass Through Trust
Certificate No. _____ CUSIP ____________
Up to $ ____________ ISIN _____________
CCN ______________
$_______ Fractional Undivided Interest representing
% of the Trust per $100,000 face amount
THIS CERTIFIES THAT ____________________, for value received, is the
registered owner of up to ____________________ DOLLARS ($__________) Fractional
Undivided Interest in the Airplanes Subclass A-9 Pass Through Trust (the
"Trust") created pursuant to the Airplanes Pass Through Trust Agreement dated as
of March 28, 1996, among Airplanes Limited, a limited liability company
organized under the laws of Jersey, Channel Islands ("Airplanes Limited"),
Airplanes U.S. Trust, a Delaware business trust ("Airplanes Trust" and, together
with Airplanes Limited, the "Note Issuers"), and Bankers Trust Company, a New
York banking corporation, as trustee (the "Trustee"), as supplemented by
Supplement A dated as of March 16, 1998 and the Trust Supplement No. 13 thereto,
dated as of March 15, 2001 (together, the "Agreement"), a summary of certain of
the pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Agreement.
This Certificate is one of the duly authorized Certificates designated
as "Airplanes Subclass A-9 Floating Rate Pass Through Certificates" (herein
referred to as the "Certificates"). This Certificate is issued under and is
subject to the terms, provisions, and conditions of the Agreement, to which
Agreement the Certificateholder of this Certificate, by virtue of the acceptance
hereof, assents and by which such Certificateholder is bound. The
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property of the Trust includes, among other things, certain Notes and all rights
of the Trustee, on behalf of the Trust, to receive payments under the Guarantees
(collectively, the "Trust Property").
This Certificate represents a Fractional Undivided Interest in the
Trust and the Trust Property, and the Holder hereof shall have no rights,
benefits or interest in respect of any assets or property other than the Trust
Property.
Subject to and in accordance with the terms of the Agreement, from
funds received by the Trustee and deposited in the Certificate Account pursuant
to the Agreement, there will be distributed monthly in arrears on each Payment
Date, commencing on April 16, 2001, to the Person in whose name this Certificate
is registered at the close of business on the Record Date with respect to such
Payment Date, in the manner specified in Sections 4.02(c) and (d) of the
Agreement, such Person's pro rata share (based on the aggregate Fractional
Undivided Interest in the Trust held by such Person) of the aggregate amount in
the Certificate Account. Subject to and in accordance with the terms of the
Agreement, in the event that any Special Payment on the Notes is received by the
Trustee, there shall be distributed as soon as the Trustee has confirmed receipt
of such Special Payment in the Special Payment Account, to the Person in whose
name this Certificate is registered at the close of business on the Record Date
immediately preceding such Special Payment, in the manner specified in Sections
4.02(c) and (d) of the Agreement, such Person's pro rata share (based on the
aggregate Fractional Undivided Interest in the Trust held by such Person) of the
aggregate amount of such Special Payment. The Trustee shall mail notice of each
Special Payment to the Person in whose name this Certificate is registered at
the close of business on the Record Date immediately preceding such Special
Payment.
Payments on this Certificate will be made by the Trustee by check
mailed to the Person entitled thereto (except as otherwise provided in the
Agreement), without the presentation or surrender of this Certificate or the
making of any notation hereon. Except as otherwise provided in the Agreement
and, notwithstanding the above, the final distribution on this Certificate will
be made after notice mailed by the Trustee of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency of the Trustee specified in such notice.
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Reference is hereby made to the further provisions of this Certificate
set forth in the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: _____________________ AIRPLANES SUBCLASS A-9 PASS
THROUGH TRUST
By: BANKERS TRUST COMPANY, not in its
individual capacity, but
solely as Trustee
By:_______________________________
Name:
Title:
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred
to in the within-mentioned Agreement.
Dated: ____________ BANKERS TRUST COMPANY, not in its
individual capacity, but solely as
Trustee
By:__________________________________
Name:
Title:
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[REVERSE OF CERTIFICATE]
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, either Note Issuer or the Trustee
or any Affiliate thereof. The Certificates are limited in right of payment, all
as more specifically set forth on the face hereof and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property to make such
payments in accordance with the terms of the Agreement. Each Holder of this
Certificate, by its acceptance hereof, agrees that it will look solely to the
income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby. A copy of the Agreement may
be examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the Note
Issuers and the rights of the Certificateholders under the Agreement at any time
by the Note Issuers and the Trustee with the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust. Any such consent by the
Certificateholder of this Certificate shall be conclusive and binding on such
Certificateholder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Register upon
surrender of this Certificate for registration of transfer at the offices or
agencies maintained by the Trustee in its capacity as Registrar, or by any
successor Registrar, in New York, New York, duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Registrar duly executed by the Certificateholder hereof or such
Certificateholder's attorney duly authorized in writing, and thereupon one or
more new Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in minimum denominations of $100,000 Fractional Undivided Interest and
integral multiples of $1,000 in excess thereof, except that one Certificate may
be in a denomination of less than $100,000. As provided in the Agreement and
subject to certain limitations therein set forth, the Certificates are
exchangeable for new Certificates of authorized denominations evidencing the
same aggregate Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
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No service charge will be made for any such registration of transfer or
exchange, but the Trustee shall require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Trustee, the Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
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[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 Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
_______________________________ attorney to transfer said Note on the books of
the Trustee 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 CERTIFICATES OTHER THAN
EXCHANGE CERTIFICATES AND PERMANENT
REGULATION S GLOBAL CERTIFICATES]
In connection with any transfer of this Certificate 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 that, without utilizing any
general solicitation or general advertising:
[Check One]
[ ] (a) this Certificate is being transferred in compliance with the
exemption from registration under the Securities Act 1933
provided by Rule 144A thereunder.
or
[ ] (b) this Certificate 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 Certificate
and the Trust Supplement.
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If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Certificate in 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 2.07 of the Trust Supplement 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
Certificate 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 Airplanes Limited
and Airplanes U.S. Trust 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.
Date:_____________ _______________________________________________
NOTICE: To be executed by an executive officer
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EXHIBIT B
LETTER OF REPRESENTATIONS
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EXHIBIT C
FORM OF CERTIFICATE
--------------, ------
Bankers Trust Company
Four Albany Street
New York, New York 10006
Attention: Corporate Trust and Agency Group
Airplanes Limited
22 Grenville Street
St. Helier
Jersey, JE4 8PX
Channel Islands
Airplanes U.S. Trust
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890-001
Re: Airplanes Pass Through Trust (the "Issuer") Subclass A-9
Certificates
Dear Sirs:
This letter relates to U.S. $ ____________ principal amount of Subclass
A-9 Certificates of the Issuer represented by a Subclass A-9 Certificate which
bears a legend (the "Legended Certificate") outlining restrictions upon transfer
of such Legended Certificate. Pursuant to Section 2.04 of the Trust Supplement
dated as of March 15, 2001 (the "Trust Supplement") relating to the Subclass A-9
Certificates, we hereby certify that we are (or we will hold such securities on
behalf of) a person outside the United States to whom the Subclass A-9
Certificates may be transferred in accordance with Rule 904 of Regulation S
promulgated under the U.S. Securities Act of 1933, as amended ("Regulation S").
Accordingly, you are hereby requested to exchange the legended certificate for
an unlegended certificate representing an identical principal amount of Subclass
A-9 Certificates, all in the manner provided for in the Trust Supplement.
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Each of you is entitled to rely upon this letter and is irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this letter have the meanings set forth in
Regulation S.
Very truly yours,
[Name of Holder]
By:
---------------------------------------
Name:
Title:
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EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED IN
CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S
---------------, ----
Bankers Trust Company
Four Albany Street
New York, New York 10006
Attention: Corporate Trust and Agency Group
Airplanes Limited
22 Grenville Street
St. Helier
Jersey, JE4 8PX
Channel Islands
Airplanes U.S. Trust
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890-001
Re: Airplanes Pass Through Trust (the "Issuer") Subclass A-9
Certificates
Dear Sirs:
In connection with our proposed sale of U.S.$___________ aggregate
principal amount of the Subclass A-9 Certificates, we confirm that such sale
will be effected pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended ("Regulation S") and, accordingly, we
represent that:
(1) the offer of the Subclass A-9 Certificates was not made to a person
in the United States;
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
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Each of you is entitled to rely upon this letter and is irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this letter have the meanings set forth in
Regulation S.
Very truly yours,
[Name of Transferor]
By:
---------------------------------------
Name:
Title:
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