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Exhibit 10.7
CONFORMED COPY
REFERENCE AGENCY AGREEMENT
Dated as of March 3, 1998
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REFERENCE AGENCY AGREEMENT
REFERENCE AGENCY AGREEMENT, dated as of March 3, 1998 among Morgan Stanley
Aircraft Finance, a business trust organized under the laws of Delaware (the
"Issuer") pursuant to the Third Amended and Restated Trust Agreement dated as
of February 27, 1998 (the "Trust Agreement"), among Wilmington Trust Company, a
Delaware banking corporation, as Delaware trustee, MS Financing Inc., a
Delaware corporation, as depositor, the Controlling Trustees and the
Independent Trustees named therein; Bankers Trust Company, a New York banking
corporation ("Bankers Trust"), not in its individual capacity but solely in its
capacities as Trustee (the "Trustee") under the Indenture, dated as of the date
hereof (the "Indenture"), among the Issuer and Bankers Trust, as Trustee;
Bankers Trust, in its capacity as reference agent (the "Reference Agent"); and
Cabot Aircraft Services Limited, in its capacity as administrative agent (the
"Administrative Agent") pursuant to the Administrative Agency Agreement, dated
as of the date hereof, among the Issuer, the Security Trustee, the
Administrative Agent and the subsidiaries of the Issuer as specified therein.
W I T N E S S E T H:
WHEREAS, on the date hereof, pursuant to the terms of the Indenture, the
Issuer is issuing and selling five separate subclasses of notes: the Subclass
A-1 Notes, the Subclass A-2 Notes, the Subclass B-1 Notes, the Subclass C-1
Notes and the Subclass D-1 Notes (such notes of the Issuer being, collectively,
the "Initial Notes");
WHEREAS, from time to time, the Issuer may issue additional subclasses of
notes (the "Issuer Additional Notes" and, together with the Initial Notes, the
"Notes");
WHEREAS, the Subclass A-1 Notes, the Subclass A-2 Notes and the Subclass
B-1 Notes are, and certain subclasses of Issuer Additional Notes may be,
entitled to receive interest at floating rates, which will be determined in
accordance with Section 6 hereof (all such subclasses of Notes, collectively,
the "Floating Rate Notes");
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
SECTION 1.01. Definitions. Unless otherwise defined herein, all
capitalized terms used but not defined herein have the meanings assigned to
such terms in the Indenture.
SECTION 1.02. Construction and Usage. The conventions of construction
and usage set forth in the Indenture are incorporated by reference herein.
SECTION 2. Appointment of Reference Agent. The Issuer hereby appoints
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Bankers Trust as the Reference Agent, and Bankers Trust hereby accepts such
appointment and agrees to perform the duties and obligations of Reference Agent
set forth in Section 6.
SECTION 3. Status of Reference Agent. Any acts taken by the Reference
Agent under this Agreement or in connection with any Floating Rate Note,
including the calculation of any interest rate for such Floating Rate Note,
shall be deemed to have been taken by the Reference Agent solely in its
capacity as an agent acting on behalf of the Issuer and shall not create or
imply any obligation to, or any agency, fiduciary or trust relationship with,
any of the owners or holders of the Floating Rate Notes.
SECTION 4. Reference Agent Fees and Expenses. In consideration of the
Reference Agent's performance of the services provided for under this
Agreement, the Issuer shall pay to the Reference Agent an annual fee set forth
under a separate agreement between the Issuer and Bankers Trust. In addition,
the Issuer shall reimburse the Reference Agent for all reasonable out-of-pocket
expenses, disbursements and advances (including reasonable legal fees and
expenses) incurred or made by the Reference Agent from time to time in
connection with the services rendered by it under this Agreement, except any
expenses, disbursements, or advances attributable to its negligence or wilful
misconduct.
SECTION 5. Rights and Liabilities of Reference Agent. In the absence of
negligence or wilful misconduct on the part of the Reference Agent, its
directors, officers, employees and agents, such persons may conclusively rely,
as to the truth of the statements expressed in, and shall be fully protected
and shall incur no liability for, or in respect of, any action taken, omitted
to be taken, or suffered to be taken by it, in reliance upon, any written
order, instruction, notice, request, direction, statement, certificate,
consent, report, affidavit or other instrument, paper, document or
communication, reasonably believed by it in good faith to be genuine, from the
Issuer or the Administrative Agent on behalf of the Issuer and conforming to
the requirements of this Agreement. Any written order, instruction, notice,
request, direction, statement, certificate, consent, report, affidavit or other
instrument, paper, document or communication from the Issuer or the
Administrative Agent or given by it and sent, delivered or directed to the
Reference Agent under, pursuant to, or as permitted by, any provision of this
Agreement shall be sufficient for purposes of this Agreement if such written
order, instruction, notice, request, direction, statement, certificate,
consent, report, affidavit or other instrument, paper, document or
communication is in writing and signed by any Signatory Trustee of the Issuer
or by the Administrative Agent, as the case may be. The Reference Agent may
consult with counsel satisfactory to it and the advice (to be confirmed in
writing) or opinion of such counsel shall constitute full and complete
authorization and protection of the Reference Agent with respect to any action
taken, omitted to be taken, or suffered to be taken by it hereunder in good
faith and in accordance with and in reliance upon the advice to be confirmed in
writing or opinion of such counsel. The Reference Agent shall not be liable
for any error resulting from use of or reliance on a source or publication
required to be used under Section 6 to the extent such use of or reliance on
such source or publication is contemplated by Section 6. No party shall be
liable for any default resulting from force
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majeure.
SECTION 6. Duties of Reference Agent. (a) The duties and obligations of
the Reference Agent shall be determined solely by the express provisions of
this Agreement and no implied covenants or obligations shall be read into this
Agreement against the Reference Agent. Subject to their duty to act without
negligence, neither the Reference Agent nor its directors, officers, employees
and agents guarantee the correctness or completeness of any data or other
information furnished hereunder.
(b) For the purpose of calculating the rate of interest payable on any
subclass of Floating Rate Notes, the Reference Agent shall determine LIBOR (a)
for the period beginning on (and including) the relevant Closing Date and
ending on (but excluding) the first Payment Date (the "initial Interest Accrual
Period"), on the date that is two Business Days before such Closing Date, and
(b) for each Interest Accrual Period following the initial Interest Accrual
Period, on the relevant Reference Date, in each case on the basis of a 360-day
year and the actual number of days elapsed in such Interest Accrual Period.
The Reference Agent shall determine LIBOR in accordance with the following
provisions:
(i) On each Reference Date, the Reference Agent will determine LIBOR
as the per annum offered rate for deposits in U.S. dollars for a period
of one month that appears on the display designated as page 3750 on the
Telerate Monitor (or such other page or service as may replace it for the
purpose of displaying LIBOR of major banks for U.S. dollar deposits) at
approximately 11:00 a.m. (London time).
(ii) If the offered LIBOR rate so appearing is replaced by the
corresponding rates of more than one bank, then paragraph (i) above shall
be applied, with any necessary consequential changes, to the arithmetic
mean of the rates (being at least two) which so appear, as determined by
the Reference Agent. If for any other reason such offered rate does not
so appear or if the relevant page is unavailable, the Reference Agent
will request that each of the banks whose offered rates would have been
used for the purposes of the relevant page if the event leading to the
application of this sentence had not happened or any duly appointed
substitute reference bank acting in each case through its principal
London office (the "Reference Banks"), to provide the Reference Agent
with its offered quotation to prime banks for dollar deposits in London
for the next Interest Accrual Period concerned as at 11:00 a.m. (London
time) on the applicable Reference Date. The floating rate of interest
for such Interest Accrual Period for each subclass of Floating Rate Notes
shall be the aggregate of the arithmetic mean of such quotations (or of
such of them, being at least two, as are so provided), as determined by
the Reference Agent, plus the applicable interest rate spread over LIBOR
as set forth in the Indenture, plus Step-Up Interest, if applicable.
(iii) If, on any Reference Date, only one or none of the Reference
Banks provides such quotation, the floating rate of interest for the next
Interest Accrual Period for each subclass of Floating Rate Notes shall be
the rate per annum which
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the Reference Agent determines to be the aggregate of the arithmetic mean
of the U.S. dollar lending rates which New York City banks selected by the
Reference Agent are quoting on the relevant Reference Date to leading
European banks for loans in London for the next Interest Accrual Period,
plus the applicable interest rate spread over LIBOR as set forth in the
Indenture, plus, if applicable, any Step-up Interest, except that, if the
banks so selected by the Reference Agent are not quoting as mentioned
above, the applicable rate of interest shall be the floating rate of
interest in effect for the last preceding Interest Accrual Period for such
subclass of Floating Rate Notes.
(c) As soon as practicable after 11:00 A.M. London time on each Reference
Date, the Reference Agent will calculate the interest rate for each subclass of
Floating Rate Notes and calculate the amount of interest payable on the
relevant Payment Date in respect of each subclass of Floating Rate Notes. The
interest amount for each subclass of Floating Rate Notes shall be calculated by
the Reference Agent by multiplying the rate of interest for such subclass for
the relevant Interest Accrual Period by the estimated Outstanding Principal
Balance of such subclass of Floating Rate Notes on the first day of such
Interest Accrual Period and by multiplying the product by the actual number of
days in such Interest Accrual Period divided by 360 and rounding the resulting
amount to the nearest cent (with half a cent being rounded upward). The
Reference Agent's determination of LIBOR, the interest rate and the interest
amount for each subclass of Floating Rate Notes (in the absence of negligence,
wilful default, bad faith or manifest error) shall be conclusive and binding
upon all parties.
(d) As promptly as is practicable after the determination thereof, the
Reference Agent shall give notice of the applicable LIBOR, the Payment Date,
the interest rate for each subclass of Floating Rate Notes for the relevant
Interest Accrual Period and the amount of interest on each subclass of Floating
Rate Notes to the Issuer, the Listing Agent, the Luxembourg Stock Exchange, the
Trustee and the Administrative Agent.
(e) If the Reference Agent does not determine the interest rate for any
subclass of Floating Rate Notes or calculate the amount of interest on any
subclass of Floating Rate Notes for any Interest Accrual Period in accordance
with the provisions of Section 6(b) hereof by the end of the relevant Reference
Date, the Administrative Agent will determine such rate of interest or
calculate such interest amount in accordance with the provisions described
above, and each such determination or calculation shall be deemed to have been
made by the Reference Agent.
SECTION 7. Amendment of the Floating Rate Notes. The Issuer shall
deliver to the Reference Agent, at least ten Business Days prior to the
effective date of any amendment of the payment terms of the Floating Rate
Notes, written notice of such amendment describing the terms of such amendment
in reasonable detail, and a certification by the Issuer that such amendment is
in compliance with the terms of the Indenture.
SECTION 8. Ownership of Notes. The Reference Agent, its officers,
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directors, employees and shareholders may become the owners of or acquire any
interest in any Notes, with the same rights that it or they would have if it
were not the Reference Agent, and may engage or be interested in any financial
or other transaction with the Issuer as freely as if it were not the Reference
Agent.
SECTION 9. Term; Termination, Resignation or Removal of Reference Agent.
(a) This Agreement shall have a noncancellable term commencing on March 3,
1998 and expiring on March 15, 2023. During such term, this Agreement shall
not be terminable by any party hereto except as expressly provided in Section
9(b).
(b) The Reference Agent may at any time resign by giving written notice to
the Issuer, the Trustee and the Administrative Agent, specifying therein the
date on which its desired resignation shall become effective; provided that
such notice shall be given no less than 30 days prior to said effective date
unless the Reference Agent, the Issuer, the Trustee and the Administrative
Agent otherwise agree in writing. The Issuer may remove the Reference Agent at
any time by giving written notice to the Reference Agent and to the holders of
the Floating Rate Notes and specifying the effective date of such removal,
which shall be at least 30 days after the date of notice; provided, however,
that no resignation by or removal of the Reference Agent shall become effective
prior to the date of appointment by the Issuer, as provided in Section 10, of a
successor reference agent and the acceptance of such appointment by such
successor reference agent; and provided, further, that in the event that an
instrument of acceptance by a successor reference agent shall not have been
delivered pursuant to Section 10 within 90 days after the giving of such notice
of resignation or removal, the Reference Agent may petition any court of
competent jurisdiction for the appointment of a successor reference agent with
respect to the Floating Rate Notes. The provisions of Sections 5, 11 and 14
hereof shall remain in effect following termination of this Agreement or the
earlier resignation or removal of the Reference Agent.
SECTION 10. Appointment of Successor Reference Agent. In the event of
the resignation by or removal of the Reference Agent pursuant to Section 9, the
Issuer shall promptly appoint a successor reference agent. Any successor
reference agent appointed by the Issuer following resignation by or removal of
the Reference Agent pursuant to the provisions of Section 9 shall execute and
deliver to the original Reference Agent, the Issuer, the Trustee and the
Administrative Agent an instrument accepting such appointment. Thereupon, such
successor reference agent shall, without any further act, deed or conveyance,
become vested with all the authority, rights, powers, immunities, duties and
obligations of the Reference Agent and with like effect as if originally named
as Reference Agent hereunder, and the original Reference Agent shall thereupon
be obligated to transfer and deliver such relevant records or copies thereof
maintained by the Reference Agent in connection with the performance of its
obligations hereunder. The Issuer shall notify the Rating Agencies of any
resignation by or removal of the Reference Agent under Section 9 and of the
appointment of and acceptance by any successor Reference Agent pursuant to this
Section 10.
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SECTION 11. Indemnification. The Issuer shall indemnify and hold
harmless the Reference Agent, its directors, officers, employees and agents
from and against any and all actions, claims, damages, liabilities, judgments,
losses, costs, charges and expenses (including reasonable legal fees and
expenses) relating to or arising out of actions or omissions from actions in
any capacity hereunder, except actions, claims, damages, liabilities,
judgments, losses, costs, charges and expenses caused by the negligence or
wilful misconduct of the Reference Agent, its directors, officers, employees or
agents. The Reference Agent shall be indemnified and held harmless by the
Issuer for any error resulting from use of or reliance on a source or
publication required to be used under Section 6. The Reference Agent shall be
indemnified and held harmless by the Issuer for, or in respect of, any actions
taken, omitted to be taken or suffered to be taken in good faith by the
Reference Agent in reliance upon (a) advice to be confirmed in writing or
opinion of counsel or (b) a written instruction from the Issuer or the
Administrative Agent.
SECTION 12. Merger, Consolidation or Sale of Business by Reference Agent.
Any corporation into which the Reference Agent may be merged or consolidated
or any corporation resulting from any merger or consolidation to which the
Reference Agent may be a party, or any corporation to which the Reference Agent
may sell or otherwise transfer all or substantially all of its assets and
corporation trust business, shall, to the extent permitted by applicable law,
become the Reference Agent under this Agreement without the execution or filing
of any paper or any further act by the parties hereto. The Reference Agent
shall give notice in writing to the Issuer, the Trustee and the Administrative
Agent of any such merger, consolidation or sale.
SECTION 13. Restrictions on Exercise of Certain Rights. The Reference
Agent hereby agrees with the Issuer that it shall not take any steps for the
purpose of procuring the appointment of an administrative receiver or the
making of an administrative order or for instituting any bankruptcy,
reorganization, arrangement, insolvency, winding up, liquidation, composition
or any like proceedings under the laws of Delaware or any other jurisdiction in
respect of the Issuer or in respect of any of its properties or liabilities.
SECTION 14. Miscellaneous. (a) If there should develop any conflict
between the Reference Agent and any other Person relating to the rights or
obligations of the Reference Agent in connection with calculation of the
interest rate on any subclass of Floating Rate Notes, the terms of this
Agreement shall govern such rights and obligations.
(b) The Reference Agent agrees to cooperate with the Issuer and its
agents, including the Administrative Agent, and their respective trustees or
directors and officers, including by providing such information as may
reasonably be requested to permit the Issuer or such authorized agents to
monitor the Reference Agent's compliance with its obligations under this
Agreement.
(c) No party to this Agreement shall assign or delegate or otherwise
subcontract this Agreement or all or any part of its rights or obligations
hereunder to any Person without the prior written consent of the Issuer.
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(d) THIS AGREEMENT 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.
(e) This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been entered into on the 3rd day of
March, 1998.
MORGAN STANLEY AIRCRAFT FINANCE
By /s/ C. Scott Peterson
Name: C. Scott Peterson
Title: Alternate Signatory Trustee
BANKERS TRUST COMPANY, not in its
individual capacity, but solely as
Trustee and Reference Agent
By /s/ Patricia M.F. Russo
Name: Patricia M.F. Russo
Title: Vice President
SIGNED AND SEALED AND DELIVERED
for and on behalf of
CABOT AIRCRAFT SERVICES LIMITED,
as Administrative Agent
By /s/ Kieran O'Keefe
Its duly authorized attorney in fact in the
presence of: /s/ Bernadette Martin