EXHIBIT 99.10
EXCHANGE AGENT AGREEMENT
October __, 2000
Bankers Trust Company
BT Services Tennessee, Inc.
Reorganization Unit
P.O. Box 292737
Nashville, TN 37229-2737
Ladies and Gentlemen:
Morgan Stanley Aircraft Finance, a Delaware statutory business trust
("MSAF"), proposes to make an offer (the "Exchange Offer"), upon the terms and
subject to the conditions set forth in a prospectus dated October __, 2000 (the
"Prospectus"), and the accompanying letter of transmittal (the "Letter of
Transmittal"), to exchange Notes due March 15, 2025 (the "New Notes") of MSAF,
for up to all outstanding Old Notes due March 15, 2025 (the "Old Notes"), of
MSAF. The Old Notes and the New Notes are collectively referred to herein as
the "Notes".
MSAF 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 MSAF on or about October
__, 2000. 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 5:00 p.m., New York City time, on
November __, 2000 or on such later date or time to which MSAF may extend the
Exchange Offer (the "Expiration Date"). Subject to the terms and conditions set
forth in the Prospectus, MSAF 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.
MSAF 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. MSAF 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.
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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 Signatory Trustees of MSAF (such
approval, if given orally, to be confirmed in writing) or any other party
designated by a Signatory Trustee in writing, you are authorized to waive any
irregularities in connection with any tender of Old Notes pursuant to the
Exchange Offer.
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.
Notwithstanding the provisions of this paragraph 5, Old Notes which the
Administrative Agent shall approve as having been properly and validly tendered
shall be considered to be properly and validly tendered (such approval, if
given orally, shall be confirmed in writing).
6. You shall advise MSAF 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, MSAF 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 MSAF, will exchange
such Old Notes for New Notes and cause such Old Notes to be canceled in
accordance with instructions from MSAF. Delivery of New Notes will be made on
behalf of MSAF 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. MSAF shall not be required to accept for exchange any Old Notes
tendered. Unless notice by MSAF not to exchange any Old Notes tendered shall be
given (and confirmed in writing) by MSAF to you, such Old Notes properly
tendered shall be accepted.
11. If, pursuant to the Exchange Offer, MSAF 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.
Ex-99.10-2
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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 MSAF 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 MSAF;
(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 reasonable indemnity;
(d) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due 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;
(e) may rely on and shall be protected in acting upon written or oral
instructions from any officer of MSAF or the Administrative Agent on
behalf of MSAF;
(f) 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
(g) 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 take such action as may from time to time be requested by
MSAF 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 MSAF, 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. MSAF 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 Cabot Aircraft Services Limited, Attention: Kieran
O'Keefe (the "Administrative Agent") or such other person as any Signatory
Trustee of MSAF 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 Signatory Trustees of MSAF may request, daily
(and more frequently during the week immediately preceding the Expiration Date
and if otherwise requested)
Ex-99.10-3
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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 received. In addition, you
will also inform, and cooperate in making available to, MSAF 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 MSAF may 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 MSAF 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 MSAF 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, MSAF agrees to pay
to the Exchange Agent a fee in the amount of $15,000, payable upon consummation
of the Exchange Offer, as set forth in Schedule A hereto.
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. MSAF covenants and agrees to indemnify and hold you 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, 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 MSAF
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 MSAF be liable under this indemnity with respect
to any claim against you unless MSAF 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. MSAF
shall be entitled to participate at its own expense in the defense of any such
claim or other action, and, if MSAF so elects, MSAF shall assume the defense of
any suit brought to enforce any such claim. In the event that MSAF shall assume
the defense of any such suit, MSAF shall not be liable for the fees and
expenses of any additional counsel thereafter retained by you so long as MSAF
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.
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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.
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 MSAF:
Morgan Stanley Aircraft Finance
c/o Cabot Aircraft Services Limited
3006 Lake Drive
Citywest Business Campus
Dublin 24
Ireland
Facsimile: +353 1 466-0591
Attention: Kieran O'Keefe
If to the Exchange Agent:
BT Services Tennessee, Inc.
Reorganization Unit
P.O. Box 292737
Nashville, TN 37229-2737
Facsimile: (615) 835-3701
Attention: Corporate Trust and Agency Group
29. 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
Administrative Agent any certificates for securities of the MSAF, funds or
property then held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date hereof.
Ex-99.10-5
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Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
MORGAN STANLEY AIRCRAFT FINANCE
By:____________________________________
Name:
Title: Signatory Trustee
Accepted as the date
first above written:
BANKERS TRUST COMPANY, as Exchange Agent
By:____________________________________
Name:
Title:
Ex-99.10-6
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SCHEDULE A
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Bankers Trust Company
Corporate Trust and Agency Group
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SCHEDULE OF FEES
I. Exchange Agent Acceptance Fees: $15,000.00
Covers review of the Exchange Agent Agreement, the Letter of Transmittal
and other related documentation; establishment of accounts and systems link
with depositories; operational and administrative charges and time spent in
connection with the review, receipt and processing of Letters of Transmittal,
and Agent's Messages.
Note: The fees set forth in this schedule are subject to review of
documentation. The fees are also subject to change should circumstances
warrant. Out-of-pocket expenses and disbursements, including counsel fees,
incurred in the performance of our duties will be added to the billed fees.
Fees for any services not covered in this or related schedules will be based
upon our appraisal of the services rendered.
We may place orders to buy/sell financial instruments with outside
broker-dealers that we select, as well as with BT or its affiliates. These
transactions (for which normal and customary spreads or other compensation may
be earned by such broker-dealers, including BT or its affiliates, in addition
to the charges quoted above) will be executed on a riskless principal basis
solely for your account(s) and without recourse to us or our affiliates. If you
choose to invest in any mutual fund, BT and/or our affiliates may earn
investment management fees and other service fees/expenses associated with
these funds as disclosed in the mutual fund prospectus provided to you, in
addition to the charges quoted above. Likewise, BT has entered into agreements
with certain mutual funds or their agents to provide shareholder services to
those funds. For providing these shareholder services, BT is paid a fee by
these mutual funds that calculated on an annual basis does not exceed 25 basis
points of the amount of your investment in these mutual funds. In addition, if
you choose to use other services provided by BT or its affiliates, Corporate
Trust or other BT affiliates may be allocated a portion of the fees earned. We
will provide periodic account statements describing transactions executed for
your account(s). Trade confirms will be available upon your request at no
additional charge. If a transaction should fail to close for reasons beyond our
control, we reserve the right to charge our acceptance fee plus reimbursement
for legal fees incurred.
Shares of mutual funds are not deposits or obligations of, or guaranteed
by, Bankers Trust Company or any of its affiliates and are not insured by the
Federal Deposit Insurance Corporation or any other agency of the U.S.
Government. Investments in the mutual funds involve the possible loss of
principal. Please read the prospectus carefully before investing.
Ex-99.10-7
