EXECUTION COPY
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FOURTH AMENDED AND RESTATED TRUST AGREEMENT
OF
MORGAN STANLEY AIRCRAFT FINANCE
Dated as of March 15, 2000
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TABLE OF CONTENTS
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PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.....................................................2
ARTICLE 2
CREATION OF MSAF
SECTION 2.01. Organizational Matters..........................................3
SECTION 2.02. Acceptance of Trust and Duties; Controlling Trustees;
Signatory Trustees............................................4
SECTION 2.03. Objects.........................................................5
SECTION 2.04. Prohibition and Limitation of Actions by MSAF and the
Trustees......................................................6
SECTION 2.05. Independent Business...........................................10
SECTION 2.06. Duration of MSAF...............................................11
SECTION 2.07. Trust for benefit of holders of MSAF debt securities...........11
ARTICLE 3
TRUSTEES
SECTION 3.01. Number and Status..............................................12
SECTION 3.02. Delaware Trustee...............................................12
SECTION 3.03. Controlling Trustees...........................................12
SECTION 3.04. Independent Trustees...........................................13
SECTION 3.05. Quorum.........................................................13
SECTION 3.06. Meetings.......................................................13
SECTION 3.07. Notice.........................................................14
SECTION 3.08. Voting Following the Appointment of Independent Trustees.......14
SECTION 3.09. Resolutions....................................................15
SECTION 3.10. Committees.....................................................15
SECTION 3.11. Vacancies......................................................15
SECTION 3.12. Effect of Vacancies............................................16
SECTION 3.13. Transactions with Trustees.....................................16
SECTION 3.14. Interests of Trustees..........................................16
SECTION 3.15. Disclosure of Interests........................................17
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SECTION 3.16. Contract with Trustee..........................................17
SECTION 3.17. Validity of Acts...............................................17
SECTION 3.18. Minute Book....................................................18
SECTION 3.19. Fees and Remuneration..........................................18
SECTION 3.20. Trustees May Rely..............................................18
SECTION 3.21. Trustees Act Solely as Trustees................................18
SECTION 3.22. No Expenses for the Trustees...................................19
SECTION 3.23. No Representations or Warranties as to Certain Matters.........19
ARTICLE 4
INDEMNIFICATION OF TRUSTEES
SECTION 4.01. Liability and Indemnity........................................19
SECTION 4.02. Agents.........................................................20
SECTION 4.03. Insurance......................................................20
SECTION 4.04. Non-exclusive Rights...........................................20
SECTION 4.05. Survival.......................................................20
ARTICLE 5
TERMINATION OF MSAF
SECTION 5.01. Termination of MSAF............................................21
ARTICLE 6
AMENDMENTS
SECTION 6.01. Amendments.....................................................21
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Notices........................................................22
SECTION 7.02. Governing Law..................................................23
SECTION 7.03. Jurisdiction...................................................23
SECTION 7.04. Counterparts...................................................23
SECTION 7.05. Agreement......................................................24
SECTION 7.06. Table of Contents; Headings....................................24
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FOURTH AMENDED AND RESTATED TRUST AGREEMENT (this "Trust Agreement"),
dated as of March 15, 2000, among MSDW Aircraft Holdings, a Delaware business
trust, as depositor (the "Depositor"), Wilmington Trust Company, a Delaware
banking corporation, which is acting hereunder not in its individual capacity
but solely as owner trustee (the "Delaware Trustee"), Karl Essig, Scott
Peterson, Maurice Mason and Alexander Frank (the "Controlling Trustees") and
Juan O'Callahan and Alexander Bancroft (the "Independent Trustees" and, together
with the Controlling Trustees, and the Delaware Trustee, the "Trustees"). This
Trust Agreement amends and restates in its entirety the third amended and
restated trust agreement (the "Third Amended and Restated Trust Agreement")
entered into among MS Financing Inc., as the depositor ("MSFI"), the Delaware
Trustee, Karl Essig, Maurice Mason and Alexander Frank, as Controlling Trustees
and Scott Peterson, as the Alternate Controlling Trustee, and Juan O'Callahan
and Alexander Bancroft, as the Independent Trustees, dated as of March 3, 1998.
RECITALS
WHEREAS, pursuant to the original trust agreement entered into among
the MSFI, the Delaware Trustee and Scott Peterson, Ellen Brunsberg and Maurice
Mason, as controlling trustees, dated as of October 30, 1997, the First Amended
and Restated Trust Agreement, the Second Amended and Restated Trust Agreement,
the Third Amended and Restated Trust Agreement and a Certificate of Trust filed
with the Secretary of State of Delaware on October 31, 1997, MSFI created a
business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del.C. ss.
3801 et seq. (the "Business Trust Act") named "Morgan Stanley Aircraft Finance"
("MSAF") by assigning and transferring to MSAF $1. (such $1., together with any
and all property owned directly or indirectly from time to time by MSAF, "Trust
Property");
WHEREAS, MSAF was created to acquire, directly or indirectly through
intermediaries, aircraft and related assets from time to time and to issue and
sell debt securities to finance and refinance such acquisitions;
WHEREAS, MSFI has transferred the beneficial interest in MSAF to the
Depositor and the parties hereto desire to amend and restate the Third Amended
and Restated Trust Agreement in its entirety and replace MSFI as the depositor;
WHEREAS, Scott Peterson wishes to resign as an alternate controlling
trustee for Karl Essig and accept appointment as Controlling Trustee and to
perform his obligations hereunder;
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WHEREAS, Scott Peterson wishes to resign as an alternate signatory
trustee for Karl Essig and accept appointment as Signatory Trustee and to
perform his obligations hereunder;
NOW, THEREFORE, it being the intention of the parties hereto to
continue MSAF as a business trust under the Business Trust Act and that this
Trust Agreement constitute the governing instrument of such business trust, the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
the following meanings. Capitalized terms used but not defined herein have the
meaning assigned to such terms in the Indenture.
"Affiliate" means as to any Person, any other Person that, directly
or indirectly through one or more intermediaries, controls or is controlled by
or is under common control with such Person; provided, however that neither MSAF
nor any of its subsidiaries shall be considered to be Affiliates of the
Depositor or its Affiliates.
"Asset Purchase Agreement" has the meaning assigned to such term in
Section 2.03 herein.
"control" (including, with its correlative meanings, "controlled by"
and "under common control with") means possession, direct or indirect, of the
power to direct or cause the direction of management or policies of a Person,
whether through the ownership of securities or partnership or other ownership
interests, by contract or otherwise).
"Indenture" means the Indenture dated as of March 3, 1998, as
supplemented as of March 15, 2000 between MSAF and Bankers Trust Company, a New
York banking corporation, as trustee.
"Independent Trustee" means a Trustee who is not at the time of his
appointment or at any time during his service as Trustee, and has not been for
the twenty-four months prior to his appointment as Trustee, an employee,
officer, director, creditor or supplier of Morgan Stanley, Dean Witter & Co.,
MSAF, or any Affiliate of any such person, except with the approval of the
Rating Agencies.
"Person" means an individual, corporation, partnership, limited
liability company, association, statutory business trust, common law trust, or
other entity or
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organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Rating Agencies" means Moody's Investors Service, Inc., Standard &
Poor's Rating Group and Duff & Phelps Credit Rating Co. and any other nationally
recognized statistical rating organizations that from time to time are
contracted to rate debt securities issued by MSAF.
"Signatory Trustees" has the meaning assigned to such term in Section
2.02 herein.
ARTICLE 2
CREATION OF MSAF
SECTION 2.01. Organizational Matters.
(a) The name of the trust continued hereby is "Morgan Stanley
Aircraft Finance". To the extent practicable, the Trustees shall conduct MSAF's
activities, execute all documents and cause MSAF to sue or be sued under the
foregoing name, which name (and the word "Trust" wherever used in this Trust
Agreement, except where the context otherwise requires) shall refer to the
business trust created hereby, or the Trustees acting on behalf of the Trust as
trustees, and not individually, and shall not refer to the officers, agents,
employees or beneficial owners of MSAF. Under circumstances in which the
Trustees determine that the use of the name "Morgan Stanley Aircraft Finance" is
not practicable or desirable, they may change the name and use any other
designation or name for the Trust.
(b) The principal office of MSAF, and such additional offices as the
Controlling Trustees may determine to establish, shall be located at such place
or places inside or outside the State of Delaware as the Controlling Trustees
may designate from time to time.
(c) MSAF is a "business trust", the Trustees are the "trustees" and
the Depositor is the sole "beneficial" owner", within the meaning of the
Business Trust Act. MSAF shall not be deemed to be a general partnership,
limited partnership, joint venture, joint shares company or a corporation (but
nothing herein shall preclude MSAF from being treated for tax purposes as a
trust under the United States Internal Revenue Code of 1986, as amended).
(d) Legal title to all Trust Property shall be vested in MSAF as a
separate legal entity, except that the Controlling Trustees may cause legal
title to any Trust
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Property to be held by or in the name of any other Person as nominee. The right,
title and interest of the Trustees in and to the Trust Property shall
automatically vest in successor and additional Trustees upon their qualification
and acceptance of election or appointment as Trustees, and they shall thereupon
have all the rights and obligations of Trustees, whether or not conveyancing
documents have been executed and delivered. Written evidence of the
qualification and acceptance of election or appointment of successor and
additional Trustees may be filed with the records of MSAF and in such other
offices, agencies or places as the Controlling Trustees may deem necessary or
desirable. No beneficial owner of MSAF shall be deemed to have a severable
ownership interest in any individual asset of MSAF or any right of partition or
possession thereof.
(e) The Trustees hereby declare that they shall hold the Trust
Property upon the terms hereinafter set forth in this Trust Agreement.
SECTION 2.02. Acceptance of Trust and Duties; Controlling Trustees;
Signatory Trustees.
(a) Each of the Trustees accepts the trust created hereby and agrees
to perform its duties in accordance with all of the terms and conditions
contained in this Trust Agreement. In performing its duties hereunder, no
Trustee shall have any duty or liability with respect to the administration of
MSAF, except for its own bad faith, wilful misconduct or knowing violation of
law, and no implied duties shall be read into this Trust Agreement against any
Trustee. The Trustees shall not be liable for the acts or omissions of the
Depositor nor shall the Delaware Trustee be liable for any act or omission by it
in good faith in accordance with directions of the Signatory Trustees or for any
act or omission of the Controlling Trustees or the Independent Trustees.
(b) The Controlling Trustees shall manage the property and affairs
of MSAF and specifically, for so long as any debt securities of MSAF remain
outstanding, for the benefit of the holders of such debt securities such that no
action shall be taken with respect to the Trust Property or the proceeds thereof
which contravenes or conflicts with any provision of the indenture or other
instrument governing such debt securities. The sole purpose of the Delaware
Trustee in entering into this Trust Agreement is to satisfy the requirements of
Section 3807(a) of the Business Trust Act. It is understood and agreed by the
parties hereto that the Delaware Trustee shall have none of the duties or
liabilities of the Controlling Trustees. The duties of the Delaware Trustee
shall be limited to (i) accepting legal process served on MSAF in the State of
Delaware and (ii) the execution of any certificates required to be filed with
the Delaware Secretary of State which the Delaware Trustee is required to
execute under Section 3811 of the Business Trust Act. To the extent that, at law
or in equity, the Delaware Trustee has duties
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(including fiduciary duties) and liabilities relating thereto to MSAF or the
Depositor, it is hereby understood and agreed by the parties hereto that such
duties and liabilities are replaced by the duties and liabilities of the
Delaware Trustee expressly set forth in this Trust Agreement.
(c) Subject to Sections 3.05, 3.08 and 6.01, each of Karl Essig,
Scott Peterson and Alexander Frank (the "Signatory Trustees") is hereby
authorized and directed to enter into the agreements approved by the Controlling
Trustees, such approval to be evidenced by the signature of any one of such
Signatory Trustees on any such agreement. The Delaware Trustee is further
authorized and directed to enter into such other documents and take such other
action as either Signatory Trustee shall specifically direct in written
instructions delivered to the Delaware Trustee; provided, however, that the
Delaware Trustee shall not be required to take any action if the Delaware
Trustee shall determine, or shall be advised by counsel, that such action is
likely to result in personal liability or is contrary to applicable law or any
agreement to which the Delaware Trustee is a party.
SECTION 2.03. Objects. MSAF is formed for the following objects only:
(a) to act as the depositor of MSA I, MSA II, MSA III, MSA IV, MSA V,
MSA VI and MSA VII, each a Delaware business trust;
(b) to enter into such agreements as the Controlling Trustees see fit
in order to engage in the transactions contemplated hereby, including the Asset
Purchase Agreement dated as of November 10, 1997 between MSAF and International
Lease Finance Corporation (the "Asset Purchase Agreement");
(c) to acquire aircraft and related assets (including the capital
stock of one corporation) pursuant to the Asset Purchase Agreement;
(d) to purchase or otherwise acquire, directly or indirectly through
intermediaries, additional aircraft and related assets from time to time and
own, hold, convert, maintain, modify, manage, operate, lease, re-lease and sell
or otherwise dispose of aircraft assets and enter into all contracts and engage
in all related activities incidental thereto, including from time to time,
accepting, exchanging, holding or permitting any of its subsidiaries to accept,
exchange or hold promissory notes, contingent payment obligations or equity
interests of lessees or their affiliates issued in connection with the
bankruptcy, reorganization or other similar process, or in settlement of
delinquent obligations or obligations anticipated to be delinquent, of such
lessees or their respective Affiliates in the ordinary course of business;
(e) to provide loans to or guarantee or otherwise support the
obligations and liabilities of any of its subsidiaries on such terms and in such
manner as the
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Controlling Trustees see fit and (whether or not MSAF or any of its subsidiaries
shall derive a benefit therefrom) so long as such loans, guarantees, or other
supports are provided for the purposes set forth in paragraphs 2.03(a), (b), (c)
or (d) hereof; provided that no such loan, guarantee or other support of the
obligations or liabilities of any of its subsidiaries shall be granted if it
would materially adversely affect the holders of any debt securities of MSAF;
(f) to finance and refinance the activities described in paragraphs
2.03(a), (b), (c) or (d) above through the offer, sale and issuance of any
securities of MSAF upon such terms and conditions as the Controlling Trustees
see fit, for cash or in payment or in partial payment for any property purchased
or otherwise acquired by MSAF or any of its subsidiaries and to grant a security
interest or other form of mortgage or charge in the Trust Property or proceeds
of the Trust Property whether now or hereinafter acquired;
(g) to engage in currency and interest rate exchange transactions for
the purposes of avoiding, reducing, minimizing, hedging against or otherwise
managing the risk of any loss, cost, expense or liability arising, or which may
arise, directly or indirectly, from any change or changes in any interest rate
or currency exchange rate or in the price or value of any of MSAF's or any of
its subsidiaries' property or assets, within limits determined by the
Controlling Trustees from time to time and submitted to the Rating Agencies,
including but not limited to dealings, whether involving purchases, sales or
otherwise, in foreign currency, spot and forward interest rate exchange rate
contracts, forward interest rate agreements, caps, floors and collars, futures,
options, swaps and any other currency, interest rate and other similar hedging
arrangements and such other instruments as are similar to, or derivatives of,
any of the foregoing;
(h) to establish, promote and aid in promoting, constituting, forming
or organizing companies, trusts, syndicates, partnerships or other entities of
all kinds in any part of the world for the purposes set forth in paragraph
2.03(a), (b), (c) or (d) hereof and to acquire, hold and dispose of shares,
securities and other interests in, or causing the dissolution of any existing
subsidiary;
(i) to take out, acquire, surrender and assign policies of insurance
and assurances with any insurance company or companies which MSAF or any of its
subsidiaries may think fit and to pay the premiums thereon; and
(j) to do all such things as may be deemed incidental or conducive to
the attainment of the above objects or any of them.
SECTION 2.04. Prohibition and Limitation of Actions by MSAF and the
Trustees.
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(a) Prohibited activity. MSAF shall not, and the Trustees shall not
cause MSAF to engage in any activity other than as required or authorized by
Section 2.03 in particular, or any other provision of this Trust Agreement. Any
party to this Trust Agreement and, for so long as any debt securities of MSAF
remain outstanding, any holders of such debt securities, may bring a proceeding
to set aside and enjoin the performance of any act or acts by MSAF that are not
required or authorized by Section 2.03 in particular or any other provision of
this Trust Agreement.
(b) Limitation on activities of new subsidiaries. The organizational
documents of any direct or indirect subsidiaries of MSAF formed or acquired on
or after the date hereof shall contain express objects clauses identical in all
material respects to those contained in the organizational documents of the
existing subsidiaries of MSAF.
(c) Limitation on employees. MSAF shall not, and MSAF shall not
permit any of its subsidiaries to, employ or maintain any employees other than
as required by any provisions of local law; provided that the trustees and
directors of MSAF and each of its subsidiaries shall not be deemed to be
employees for purposes of this Section 2.04(c).
(d) Limitation on Indebtedness. MSAF shall not, and MSAF shall not
permit any of its subsidiaries to, incur, create, issue, assume, guarantee or
otherwise become liable for or with respect to, or become responsible for, the
payment of, contingently or otherwise, whether present or future (in any such
case, to "incur"), Indebtedness.
For the purposes of this Trust Agreement, "Indebtedness" means, with
respect to any Person at any date of determination (without duplication), (i)
all indebtedness of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person in respect of letters of credit or other similar
instruments (including reimbursement obligations with respect thereto), (iv) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, which purchase price is due more than six months after the
date of purchasing such property or service or taking delivery and title thereto
or the completion of such services, and payment deferrals arranged primarily as
a method of raising finance or financing the acquisition of such property or
service, (v) all obligations of such Person under a lease of (or other agreement
conveying the right to use) any property (whether real, personal or mixed) that
is required to be classified and accounted for as a capital lease obligation
under U.S. GAAP, (vi) all Indebtedness (as defined in clauses (i) through (v) of
this paragraph) of other Persons secured by a lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person,
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and (vii) all Indebtedness (as defined in clauses (i) through (v) of this
paragraph) of other Persons guaranteed by such Person.
Notwithstanding the foregoing, MSAF and any of its subsidiaries may
incur each and all of the following:
(i) Indebtedness in respect of any Initial Notes issued on the
Initial Closing Date;
(ii) Indebtedness in respect of any Refinancing Notes or other
Indebtedness described in the proviso to Section 5.02(c)(iii) of the
Indenture; provided that (A) such Refinancing Notes or other
Indebtedness receive ratings from the Rating Agencies at the close of
such Refinancing or repurchase equal to or higher than those of the
subclass being refinanced or repurchased (determined at the date of
incurrence), (B) taking into account such Refinancing or repurchase,
MSAF receives Rating Agency Confirmation prior to such Refinancing or
repurchase with respect to each subclass of MSAF Group Notes
Outstanding at such time and (C) the net proceeds of any such
Refinancing or other Indebtedness shall be used only to repay the
Outstanding Principal Balance of the subclass of Notes being so
refinanced or repurchased (plus any Redemption Premium and transaction
expenses relating thereto);
(iii) Indebtedness in respect of guarantees by MSAF or any of its
subsidiaries of any other MSAF Group Member (other than the Guarantee
described in (v) below), provided that no such Indebtedness shall be
incurred if it would materially adversely affect the Noteholders;
(iv) Indebtedness in respect of any Issuer Additional Notes the
proceeds of which are applied to finance a Permitted Additional
Aircraft Acquisition; provided that (A) MSAF receives Rating Agency
Confirmation prior to the incurrence of such Indebtedness with respect
to all of the MSAF Group Notes Outstanding at such time and (B) the
net proceeds of such Indebtedness shall be used only to finance such
Permitted Additional Aircraft Acquisition and (C) such Issuer
Additional Notes will be cross-collateralized with all Outstanding
Notes by the Collateral under the Security Trust Agreement;
(v) Indebtedness in respect of the Guarantee set forth in Article
XII of the Indenture; provided that (A) the Indebtedness guaranteed
thereby is incurred by a Guarantor that has guaranteed the Notes, (B)
the Indebtedness being guaranteed would be permitted pursuant to
clause (ii) or (iv) if such Indebtedness were incurred directly by the
Issuer and (C) the Indebtedness
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being guaranteed was issued by the Guarantor under an indenture the
terms of which (including the covenants and other obligations of the
Guarantor thereunder) are substantially identical to those of the
Indenture;
(vi) obligations to each Seller under each Acquisition Agreement
and any related lease assignment and assumption agreements and the
documents related thereto;
(vii) Indebtedness under any agreements between MSAF or any of
its subsidiaries and any other MSAF Group Members (each, an
"Intercompany Loan"); provided that such Indebtedness shall be
evidenced by promissory notes and written notification shall have been
given to each Rating Agency of the incurrence of such Indebtedness;
and
(viii) Indebtedness of MSAF Group under any Credit Facility.
For the purposes of this Trust Agreement, "guarantee" means any
obligation, contingent or otherwise, of any Person directly or indirectly
guaranteeing any Indebtedness or other obligation of any other Person and,
without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of such Indebtedness or
other obligation of such other Person or (ii) entered into for purposes of
assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided that the term "guarantee" shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "guarantee" when used as a verb has a corresponding meaning.
(e) Limitation on Consolidation, Merger and Transfer of Assets. MSAF
shall not, and MSAF shall not permit any of its subsidiaries to, consolidate
with, merge with or into, or sell, convey, transfer, lease or otherwise dispose
of its property and assets (as an entirety or substantially an entirety in one
transaction or in a series of related transactions) to, any other Person, or
permit any other Person to merge with or into MSAF or any of its subsidiaries,
unless (i) the resulting entity is a special purpose entity, the organizational
document of which is substantially similar to this Trust Agreement or the
equivalent organizational document of such MSAF subsidiary, as the case may be,
and, after such consolidation, merger, sale, conveyance, transfer, lease or
other disposition, payments from such resulting entity to the Noteholders do not
give rise to any withholding tax payments less favorable to the Noteholders than
the amount of any withholding tax payments which would have been required had
such event not occured, (ii) in the case of any consolidation, merger or
transfer by MSAF, the surviving successor or transferee entity shall expressly
assume all of the obligations of MSAF under the Indenture, the Notes and
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each other Related Document to which MSAF is then a party, (iii) the Controlling
Trustees shall have obtained a Rating Agency Confirmation with respect to such
merger, sale, conveyance, transfer, lease or disposition, (iv) immediately after
giving effect to such transaction, no Event of Default shall have occurred and
be continuing and (v) MSAF delivers to the trustee under the Indenture an
Officer's Certificate and an opinion of counsel, in each case stating that such
consolidation, merger or transfer and such supplemental indenture comply with
the above criteria and, if applicable, Section 5.02(g) of the Indenture and that
all conditions precedent provided for in the Indenture relating to such
transaction have been complied with; provided that this covenant shall not apply
to any such consolidation, merger, sale, conveyance, transfer, lease or
disposition (a) within and among MSAF and any of its subsidiaries and any other
MSAF Group Member if such consolidation, merger, sale, conveyance, transfer,
lease or disposition, as the case may be, would not materially adversely affect
the Noteholders, (b) complying with the terms of Section 5.02(g) of the
Indenture or (c) effected as part of a single transaction providing for the
redemption or defeasance of MSAF Group Notes in accordance with Section 3.10 or
Article XI, respectively, of the Indenture.
SECTION 2.05. Independent Business. MSAF will conduct its activities,
and will procure that each of its subsidiaries will conduct its business such
that it is a separate and readily identifiable business from, and independent
of, the Depositor and any of its Affiliates (it being understood that the
Depositor and its Affiliates may publish financial statements that consolidate
those of MSAF and any of its Affiliates, if to do so is required by any
applicable law or accounting principles from time to time in effect and MSAF's
subsidiaries may file consolidated tax returns with the Depositor and its
Affiliates for tax purposes) and:
(a) it will observe, and will cause its subsidiaries to observe, all
formalities necessary to remain legal entities separate and distinct from the
Depositor and any of its Affiliates;
(b) it will maintain, and will cause its subsidiaries to maintain,
each of their respective assets and liabilities separate and distinct from those
of the Depositor and any of its Affiliates;
(c) it will maintain, and will cause its subsidiaries to maintain,
records, books, accounts, and minutes separate from those of the Depositor and
any of its Affiliates;
(d) it will pay its obligations, and will cause its subsidiaries to
pay each of their respective obligations in the ordinary course of business as
legal entities separate from the Depositor and any of its Affiliates;
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(e) it will keep, and will cause its subsidiaries to keep, each of
their respective funds separate and distinct from any funds of the Depositor and
any of its Affiliates, and will receive, deposit, withdraw and disburse such
funds separately from any funds of the Depositor and any of its Affiliates;
(f) it will conduct its activities, and will cause each of its
respective subsidiaries to conduct their respective businesses in their own
name, and not in the name of the Depositor or any of its Affiliates;
(g) it will not agree, and will cause its subsidiaries not to agree,
to pay or become liable for any debt of the Depositor or any of its Affiliates;
(h) it will not hold out, and will cause its subsidiaries not to hold
out, that any of them is a division of the Depositor or any of its Affiliates or
that the Depositor or any of its Affiliates is a division of any of them;
(i) it will not induce, and will cause its subsidiaries not to
induce, any third party to rely on the creditworthiness of the Depositor or any
of its Affiliates in order that such third party will be induced to contract
with it; and
(j) it will not enter into, and will cause its subsidiaries not to
enter into, any transaction between any of them and the Depositor or any of its
Affiliates that are more favorable to the Depositor and its Affiliates than
transactions that MSAF and its subsidiaries would have been able to enter into
at such time on an arm's-length basis with a non-affiliated third party, other
than any agreements in effect on the date hereof or any transactions permitted
pursuant to the Indenture.
SECTION 2.06. Duration of MSAF. MSAF, unless terminated pursuant to
the provisions of Article 5, shall have a perpetual existence.
SECTION 2.07. Trust for benefit of holders of MSAF debt securities.
(a) This Trust Agreement has been entered into, and MSAF has been
created, in part to induce the holders from time to time of MSAF's debt
securities to purchase such debt securities. The Depositor and the Controlling
Trustees agree that the holders of MSAF's debt securities from time to time are
third party beneficiaries hereof, and shall be entitled to enforce the terms of
this Trust Agreement to the same extent as if they were parties hereto, subject,
however, to the provisions of the documents governing such debt securities.
(b) The Depositor and each other beneficial owner of MSAF hereby
expressly acknowledges and agrees that (i) its right, if any, to receive
dividends or other distributions of Trust Property is subordinate to the rights
of the holders from
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time to time of MSAF's debt securities and (ii) it may not withdraw from MSAF or
obtain possession of, or otherwise exercise legal or equitable remedies with
respect to, the Trust Property prior to the payment in full of the principal and
interest of, and any other amount owing with respect to, MSAF's debt securities
from time to time outstanding.
(c) Neither the bankruptcy, insolvency or other incapacity of the
Depositor or any other beneficial owner of MSAF, nor any transfer, by operation
of law or otherwise, by it of any interest in MSAF or the Trust Property, shall
(i) operate to terminate this Trust Agreement or MSAF, (ii) entitle the
Depositor's or such other beneficial owner's legal representatives or
transferees to claim an accounting or to take any action in any court for a
partition of the Trust Property or winding up of MSAF or (iii) otherwise affect
the rights, duties and liabilities of the parties hereto.
ARTICLE 3
TRUSTEES
SECTION 3.01. Number and Status. The number of Trustees shall be
determined by the Controlling Trustees and shall consist of at least seven (at
least two of which shall be Independent Trustees). At all times, one of the
Trustees shall be the Delaware Trustee or any successor or permitted assigns.
SECTION 3.02. Delaware Trustee. (a) The Delaware Trustee shall be:
Wilmington Trust Company
(b) As required under the Business Trust Act, the Delaware Trustee is
and any successor or permitted assigns shall be:
(i) a natural Person who is a resident of the state of Delaware;
or
(ii) if not a natural Person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the
requirements of applicable law.
(c) The Delaware Trustee may resign upon 30 days prior written notice
to MSAF, such resignation to be effective upon the appointment of a successor
Delaware Trustee. If no successor has been appointed within such 30 day period,
the Delaware Trustee may, at the expense of MSAF, petition a court to appoint a
successor Delaware trustee.
SECTION 3.03. Controlling Trustees. The Controlling Trustees shall
be:
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Karl Essig
Scott Peterson
Maurice Mason
Alexander Frank
SECTION 3.04. Independent Trustees. (a) The Independent Trustees
shall be:
Juan O'Callahan
Alexander Bancroft
(b) The Controlling Trustees shall have the power at any time and
from time to time to elect any person to be an Independent Trustee in order to
ensure that the provisions of this Trust Agreement as to the number of
Independent Trustees required to be in office are fulfilled. Any Independent
Trustee so appointed shall hold office until he resigns or is disqualified in
accordance with Section 3.11 hereof.
SECTION 3.05. Quorum. A meeting of the Controlling Trustees at which
a quorum is present shall be competent to exercise all powers and discretion for
the time being exercisable by the Controlling Trustees. The quorum necessary for
the transaction of the business of the Controlling Trustees shall be a majority
of the Controlling Trustees except that the quorum necessary for the transaction
of any business specified in Section 3.08(a), Section 3.08(b) or unless the
proviso of Section 3.08(c) applies, Section 3.08(c) shall be all Controlling
Trustees and all Independent Trustees. A Controlling Trustee, notwithstanding
his interest, may be counted in the quorum present at any meeting at which he is
appointed to hold office or place of profit under MSAF, or at which the terms of
his appointment are arranged, but he may not vote on his own appointment or the
terms thereof.
SECTION 3.06. Meetings. (a) The Controlling Trustees may meet
together for the dispatch of business, adjourn and otherwise regulate their
meetings as they think fit. Subject to Sections 3.05, 3.08 and 6.01, questions
arising at any meeting shall be determined by a majority of the Controlling
Trustees present at such meeting or, if less than three, all of the Controlling
Trustees. A Controlling Trustee may, at any time, summon a meeting of the
Controlling Trustees by giving to each Controlling Trustee not less than
twenty-four hours' notice of the meeting; provided, that any meeting may be
convened at shorter notice and in such manner as all Controlling Trustees shall
approve; provided further, that, notwithstanding the provisions of Section 7.01
hereof, unless otherwise resolved by the Controlling Trustees, notices of
Controlling Trustees' meetings need not be in writing.
(b) If a Trustee is by any means in communication with one or more
other Trustees so that each Trustee participating in the communication can hear
what is
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said by any other of them, each Trustee so participating in the communication is
deemed to be present at a meeting with the other Trustees so participating,
notwithstanding that all the Trustees so participating are not present together
in the same place.
SECTION 3.07. Notice. Any notice to be given to or by any Person
pursuant to this Trust Agreement shall be in writing, save as provided in
Section 3.06 hereof. Any Trustee present in person at any meeting of Trustees
shall, for all purposes, be deemed to have received due notice of such meeting
and, where requisite, of the purposes for which such meeting was convened. Any
notice or document served on a Trustee shall, notwithstanding that such Trustee
be then incompetent, disabled, dead or bankrupt and whether or not MSAF has
notice of his incompetency, disability, death or bankruptcy, be deemed to have
been duly served on such Trustee. Notwithstanding any of the provisions of this
Trust Agreement, any notice to be given by MSAF to a Trustee may be given in any
manner agreed in advance by any such Trustee.
SECTION 3.08. Voting Following the Appointment of Independent
Trustees. The Controlling Trustees shall possess and be entitled in their
discretion to exercise all rights and power to vote with respect to any lawful
action to be taken by the Controlling Trustees, except as otherwise provided
herein. For so long as any amount is outstanding or payable under any debt
securities of MSAF, the Trustees shall not have the power to take any action in
their capacities as Trustees that would cause MSAF or any of its subsidiaries to
be in violation of the terms governing any such debt securities. Each
Controlling Trustee shall have the power to vote an equal portion of all of the
voting rights of MSAF.
A unanimous vote of the Controlling Trustees and the Independent
Trustees shall be required to:
(a) cause MSAF or any subsidiary of MSAF to take any action with
respect to the institution of any proceeding by MSAF or any subsidiary of MSAF
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee, or other
similar official for it or any substantial part of its property, or seeking
termination of MSAF's existence other than pursuant to Section 5.01 or the
existence of any subsidiary of MSAF;
(b) in the case of any such proceeding instituted against MSAF or any
subsidiary of MSAF (but not instituted by it), cause MSAF or any subsidiary of
MSAF to take any action to authorize or consent to such proceedings (including,
without limitation, the entry of an order for relief against, or the appointment
of a
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receiver, trustee, custodian or other similar official for MSAF or any
subsidiary of MSAF, or any substantial part of its property, or that of any
subsidiary); and
(c) cause MSAF or any subsidiary of MSAF to take any action with
respect to any merger, consolidation, amalgamation, or reorganization of MSAF or
any subsidiary of MSAF, with or into any other person or entity, or any
conveyance, transfer or other disposal of (whether in one transaction or a
series of transactions) all or substantially all of the assets of MSAF or any
subsidiary of MSAF; provided, however, that such unanimous approval is not
required so long as the organizational documents of the resulting person or
entity provide for the unanimous approval of the Independent Trustees for the
events contemplated by this Section 3.08 and Section 6.01 hereof.
(d) sell, transfer, or otherwise dispose of, directly or indirectly,
any aircraft pursuant to Section 5.02(g)(v) of the Indenture whereby the net
present value of the cash Net Sale Proceeds is less than the Note Target Price.
SECTION 3.09. Resolutions. A resolution in writing signed by all of
the Controlling Trustees or by all of the members of a committee appointed
pursuant to Section 3.10 hereof or by all of the Controlling Trustees and
Independent Trustees pursuant to Section 3.08 hereof (as the case may be) shall
be valid and effectual as if it had been passed at a meeting of the Controlling
Trustees or of the relevant committee or of the Controlling Trustees and
Independent Trustees duly convened and held. Such resolution may consist of two
or more documents in like form each signed by one or more of the Controlling
Trustees, Independent Trustees or members of the relevant committee (as the case
may be).
SECTION 3.10. Committees. Except as otherwise provided in Section
3.08, the Controlling Trustees may delegate any of their powers to committees
consisting of any one or more of such Controlling Trustees or such other persons
as they think fit. Any committee so formed shall in the exercise of the powers
so delegated conform to any regulations that may be imposed on it by the
Controlling Trustees. The meetings and proceedings of any such committee
consisting of one or more persons shall be governed by the provisions of this
Trust Agreement regulating the meetings and proceedings of the Controlling
Trustees, so far as the same are applicable and are not superseded by any
regulations made by the Trustees under this Trust Agreement.
SECTION 3.11. Vacancies. The office of a Trustee shall be vacated if:
(a) he resigns his office by 30 days prior written notice to MSAF,
such resignation to be effective in the case of a Controlling Trustee or an
Independent
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Trustee at the time set forth in such notice and, in the case of the Delaware
Trustee upon the appointment of a successor Delaware Trustee;
(b) in the case of an Independent Trustee, he ceases to be qualified
as an Independent Trustee within the meaning of that term contained in this
Trust Agreement;
(c) he dies or is unable or refuses to act;
(d) he is removed by a majority vote of the Controlling Trustees;
provided, that in the case of the removal of a Controlling Trustee, the
Controlling Trustee subject to the removal action shall not be required or
entitled to vote; or
(e) in the case of the Delaware Trustee, or any successor or
permitted assigns acting as the Delaware Trustee, the failure of the Delaware
Trustee or such successor or assigns to meet the requirements of Section 3807(a)
of the Business Trust Act.
SECTION 3.12. Effect of Vacancies. (a) Neither the death,
resignation, retirement, removal, bankruptcy, dissolution, liquidation,
incompetence or incapacity of a Trustee, including without limitation the
failure of the Delaware Trustee to meet the requirements of Section 3807(a) of
the Business Trust Act, shall operate to terminate this Trust Agreement or MSAF.
(b) If there is at any time a vacancy in the position of a Trustee,
it is understood that the Depositor may not exercise the voting power of the
vacant Trustee position and that said voting power will accordingly remain
suspended during such vacancy; and
(c) In the event there is a vacancy the majority vote of the
remaining Controlling Trustees shall fill the vacancy.
SECTION 3.13. Transactions with Trustees. A Trustee may hold any
other office or place of profit under MSAF (other than the office of auditor) in
conjunction with his office of Trustee and may act in a professional capacity to
MSAF on such terms as to tenure of office, remuneration and otherwise as the
Controlling Trustees may determine.
SECTION 3.14. Interests of Trustees. Subject to applicable Delaware
law, and provided that he has disclosed to the Controlling Trustees the nature
and extent of any of his material interests, a Trustee notwithstanding his
office:
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(a) may be a party to, or otherwise interested in, any transaction or
arrangement with MSAF or in which MSAF is otherwise interested;
(b) other than, in the case of an Independent Trustee, to the extent
limited by the definition thereof, may be a director or other officer of, or
employed by, or a party to any transaction or arrangement with, or otherwise
interested in, any body corporate promoted by MSAF or in which MSAF is otherwise
interested or which engages in transactions similar to those engaged in by MSAF
and might present a conflict of interest for such Trustee in discharging his
duties; and
(c) shall not, by reason of his office, be accountable to MSAF or the
Depositor for any benefit which he derives from any such office or employment or
from any such transaction or arrangement or from any interest in such body
corporate and no such transaction or arrangement shall be liable to be avoided
on the ground of any such interest or benefit.
SECTION 3.15. Disclosure of Interests. For the purposes of Section
3.16:
(a) a general notice given to the Controlling Trustees that a
Trustee is to be regarded as having an interest of the nature and extent
specified in the notice in any transaction or arrangement in which a specified
Person or class of persons is interested shall be deemed to be a disclosure that
the Trustee has an interest in any such transaction of the nature and extent so
specified; and
(b) an interest of which a Trustee has no knowledge and of which it
is unreasonable to expect him to have knowledge shall not be treated as an
interest of that Trustee.
SECTION 3.16. Contract with Trustee. A Controlling Trustee,
notwithstanding his interest, may be counted in the quorum present at any
meeting at which any contract or arrangement in which he is interested is
considered and, subject to the provisions of Sections 3.13 and 3.14 hereof, he
may vote in respect of any such contract or arrangement.
SECTION 3.17. Validity of Acts. All acts done bona fide by any
meeting of Trustees or of a committee appointed by the Controlling Trustees or
by any Person acting as a Trustee shall, notwithstanding that it is afterwards
discovered that there was some defect in the appointment of any such Trustee or
committee or Person acting as aforesaid, or that they or any of them were
disqualified or had vacated office or were not entitled to vote, be as valid as
if every such Person had been duly appointed and was qualified and had continued
to be a Trustee or a member of a committee appointed by the Trustees and had
been entitled to vote.
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SECTION 3.18. Minute Book. The Controlling Trustees shall cause all
resolutions in writing passed in accordance with Section 3.09 hereof and minutes
of proceedings at all meetings of the Trustees and of committees appointed by
the Controlling Trustees to be entered in books kept for the purpose. Any
minutes of a meeting shall be evidence of the proceedings.
SECTION 3.19. Fees and Remuneration. The Trustees shall be paid out
of the funds of MSAF their reasonable traveling and other expenses (including
reasonable fees and expenses of counsel and other experts) properly and
necessarily expended by them in attending meetings of the Trustees or otherwise
in the affairs of MSAF. The Independent Trustees shall each be paid by way of
remuneration for their services a sum of $50,000 per annum which shall be deemed
to accrue from day to day. The Delaware Trustee shall be paid such fee(s) as
shall be agreed upon in a separate fee agreement to be entered into by the
Delaware Trustee and MSAF.
SECTION 3.20. Trustees May Rely. No Trustee shall incur any liability
to anyone in acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or paper
reasonably and in good faith believed by it to be genuine and signed by the
proper party or parties thereto. The Trustees may accept a copy of a resolution
of the board of directors of any corporate entity, certified by the secretary,
an assistant secretary or any other officer of the said entity, as duly adopted
and in full force and effect, as conclusive evidence that such resolution has
been adopted by said board and is in full force and effect. As to any fact or
matter, the manner of ascertainment of which is not specifically described
herein, the Trustees may for all purposes hereof rely on a certificate, signed
by or on behalf of the party executing such certificate, as to such fact or
matter, and such certificate shall constitute full protection of the Trustees
for any action taken or omitted to be taken by them in good faith in reliance
thereon. The Trustees may (a) exercise their powers and perform their duties by
or through such attorneys and agents as they shall appoint with due care, and
they shall not be liable for the acts or omissions of such attorneys and agents
and (b) consult with counsel, accountants and other experts, and the Trustees
shall be entitled to rely upon the advice of counsel, accountants and other
experts selected by them with due care and shall be protected by the advice of
such counsel in anything done or omitted to be done in accordance with such
advice. In particular, no provision of this Trust Agreement shall be deemed to
impose any duty on any Trustee to take any action if such Trustee shall have
been advised by counsel that such action would expose it to personal liability
or is contrary to the terms hereof, or is contrary to law.
SECTION 3.21. Trustees Act Solely as Trustees. In accepting and
performing the trusts created hereby, each Trustee acts solely as trustee
hereunder and not in any individual capacity, and all persons having any claims
against any Trustee by reason of the transactions contemplated hereby shall not
have any recourse to such Trustee
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in its individual capacity and shall look only to the property of MSAF for
payment or satisfaction thereof.
SECTION 3.22. No Expenses for the Trustees. No Trustee shall have any
obligation by virtue of this Trust Agreement to spend any of its own funds, or
to take any action which could, in the discretion of such Trustee, result in any
cost or expense being incurred by the Trustee, other than in connection with its
own obligations hereunder.
SECTION 3.23. No Representations or Warranties as to Certain Matters.
NONE OF THE TRUSTEES, EITHER IN ITS CAPACITY AS TRUSTEE OR IN ITS INDIVIDUAL
CAPACITY, MAKES OR SHALL BE DEEMED TO HAVE MADE (A) ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, AIRWORTHINESS, VALUE, CONDITION,
WORKMANSHIP, DESIGN, COMPLIANCE WITH SPECIFICATIONS, CONSTRUCTION, OPERATION,
MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE OF THE AIRCRAFT
OWNED BY MSAF, AS TO THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT
DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR
COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT,
OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO THOSE AIRCRAFT OR ANY PART THEREOF.
ARTICLE 4
INDEMNIFICATION OF TRUSTEES
SECTION 4.01. Liability and Indemnity. (a) The Trustees shall not be
liable to MSAF or the Depositor for monetary damages for breach of fiduciary
duty as a Trustee except as a result of its own bad faith, wilful misconduct or
knowing violation of law.
(b) Each Trustee (and the officers, directors, employees, heirs,
executors or administrators of such Trustee) who was or is a party or is
threatened to be made a party to, or is involved in any threatened, pending or
completed action or suit by or in the right of MSAF to procure a judgment in its
favor by reason of the fact that such Person is or was a Trustee of MSAF or is
or was serving at the request of MSAF as a trustee, director or officer of
another trust, corporation, partnership, joint venture or other enterprise,
shall be indemnified and held harmless by MSAF except as a result of its own bad
faith, wilful misconduct or knowing violation of law.
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(c) MSAF does hereby assume liability for and agree to indemnify,
reimburse and hold harmless each of the Trustees from any and all losses,
liabilities or expenses that may be imposed on, incurred by or asserted against
any of them arising out of, in connection with or related to their performance
under this Trust Agreement except as a result of its own bad faith, wilful
misconduct or knowing violation of law.
(d) The right to indemnification conferred in this Article 4 shall
also include the right to be paid by MSAF the expenses incurred in connection
with any such proceeding in advance of its final disposition to the fullest
extent authorized by Delaware law. The right to indemnification conferred in
this Article 4 shall be a contract right.
SECTION 4.02. Agents. MSAF may, by action of its Controlling
Trustees, provide indemnification to such of the agents of MSAF to such extent
and to such effect as the Controlling Trustees shall determine to be appropriate
and authorized by Delaware law.
SECTION 4.03. Insurance. MSAF shall have power to purchase and
maintain insurance on behalf of any Person who is or was a Trustee or agent of
MSAF, or is or was serving at the request of MSAF as a trustee, director,
officer, employee or agent of another trust, corporation, partnership, joint
venture or other enterprise against any expense, liability or loss incurred by
such Person in any such capacity or arising out of his status as such, whether
or not MSAF would have the power to indemnify him against such liability under
Delaware law.
SECTION 4.04. Non-exclusive Rights. The rights and authority
conferred in this Article 4 shall not be exclusive of any other right which any
Person may otherwise have or hereafter acquire.
SECTION 4.05. Survival. Neither the amendment nor repeal of this
Trust Agreement, nor, to the fullest extent permitted by Delaware law, any
adoption or modification of law, shall eliminate or reduce the effect of this
Article 4 in respect of any acts or omissions occurring prior to such amendment,
repeal, adoption or modification.
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ARTICLE 5
TERMINATION OF MSAF
SECTION 5.01. Termination of MSAF. (a) MSAF shall dissolve only: (i)
upon satisfaction in full by MSAF of all debt securities issued by MSAF in
accordance with their respective terms and (ii) with the consent of all of the
Controlling Trustees.
(b) As soon as is practicable after the occurrence of the events
referred to in Section 5.01(a) above, the Controlling Trustees shall, after
paying or making provision for the payment of all obligations of MSAF in
accordance with applicable law, file a certificate of cancellation with the
Secretary of State of the State of Delaware, and thereupon MSAF shall terminate.
(c) The provisions of Article 4 shall survive termination of MSAF.
ARTICLE 6
AMENDMENTS
SECTION 6.01. Amendments. (a) This Trust Agreement may only be
amended by a written instrument approved and executed by:
(i) a majority of the Controlling Trustees; and
(ii) if the amendment affects the rights, powers, duties or
obligations of the Delaware Trustee, the Delaware Trustee;
provided, however, that if the amendment affects (A) the rights,
powers, duties or obligations, including but not limited to, the events
contemplated by Section 3.08 hereof, of the Independent Trustees, (B) any
organizational documents of any subsidiaries of MSAF, to the extent such
amendment would affect the rights, powers or duties of the independent trustees
or directors of such subsidiary comparable to those in Sections 3.08 and 6.01
hereof or (C) any of the provisions of Sections 2.02(b), 2.07 or 6.01, such
amendment may only be affected by a written instrument approved and executed by
all of the Controlling Trustees and Independent Trustees.
(b) At such time after MSAF has issued any debt securities that
remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any holder of such debt securities, as determined
by the Controlling Trustees, may be effected only with such additional
requirements as may be set forth in the terms of the indenture or other
instrument governing such debt securities.
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(c) Notice of each amendment to this Trust Agreement shall be given
to each of the Rating Agencies.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Notices. All notices, consents, directions, approvals,
instructions, requests and other communications required or permitted by such
agreement to be given to any Person shall be in writing, and any such notice
shall become effective ten days after being deposited in the mails, certified or
registered, return receipt requested, with appropriate postage prepaid for first
class mail, or if delivered by hand or courier service or in the form of a
facsimile, when received (and, in the case of a facsimile, receipt of such
facsimile is confirmed to the sender), and shall be directed to the address or
facsimile number of such Person set forth below:
If to the Delaware Trustee:
Wilmington Trust Company
Attention: Corporate Trust Administration
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890
Fax:(302) 651-8882
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If to the Depositor, to:
MSDW Aircraft Holdings
c/o Morgan Stanley & Co. International Limited
25 Cabot Square
Canary Wharf
London E14 4QA
Attention: Mr. Scott Peterson
Fax: + 44-171-415 4328
With a copy to:
Davis Polk & Wardwell
99 Gresham Street
London EC2V 7NG
Attention: Mr. Keith Kearney
Fax: + 44-207-418 1400
From time to time any party to such agreement may designate a new
address or number for purposes of notice thereunder by notice to each of the
other parties thereto.
SECTION 7.02. Governing Law. This Trust Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware.
SECTION 7.03. Jurisdiction. The Depositor hereby submits to the
jurisdiction of the Courts of Delaware or the United States Federal Courts
sitting therein, in any action or proceeding brought to enforce or otherwise
arising out of or relating to this Trust Agreement. The Depositor consents to
the service of any and all process in any such action or proceeding by the
mailing of copies of such process to the Depositor by registered or certified
mail at its address designated in Section 7.01. In addition, the Depositor
hereby irrevocably waives to the fullest extent permitted by law any objection
which it may now or hereafter have to the laying of venue in any such action or
proceeding in the Courts of the State of Delaware or the United States Federal
Courts sitting therein, and hereby further irrevocably waives any claim that any
such forum is an inconvenient forum.
SECTION 7.04. Counterparts. This Trust Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
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SECTION 7.05. Agreement. The terms of this Trust Agreement shall be
binding upon and inure to the benefit of and shall be enforceable by the
Depositor and the Trustees and their respective successors and assigns.
SECTION 7.06. Table of Contents; Headings. The table of contents and
headings of the various articles, sections and other subdivisions of this Trust
Agreement are for convenience of reference only and shall not modify, define or
limit any of the terms or provisions of such agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Trust
Agreement or caused this Trust Agreement to be duly executed by their respective
officers hereunto duly authorized, as of the day and year first above written.
WILMINGTON TRUST COMPANY, as
Delaware Trustee
By: /s/ Anita E. Dallago
--------------------------
Name: Anita E. Dallago
Title: Administrative Account Manager
MSDW AIRCRAFT HOLDINGS, as the
Depositor
By: /s/ Scott Peterson
--------------------------
Name: Scott Peterson
Title: Signatory Trustee
/s/ Karl Essig
------------------------------------------
KARL ESSIG, as Controlling Trustee
/s/ Scott Peterson
------------------------------------------
SCOTT PETERSON, as Controlling Trustee
/s/ Alexander Frank
------------------------------------------
ALEXANDER FRANK, as Controlling Trustee
/s/ Maurice Mason
------------------------------------------
MAURICE MASON, as Controlling Trustee
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/s/ Juan O'Callahan
------------------------------------------
JUAN O'CALLAHAN, as Independent Trustee
/s/ Alexander Bancroft
------------------------------------------
ALEXANDER BANCROFT, as Independent Trustee
ACKNOWLEDGED AND AGREED:
MS FINANCING INC.
By: /s/ Debra M. Aaron
----------------------
Name: Debra M. Aaron
Title: Vice President
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MORGAN STANLEY AIRCRAFT FINANCE
CERTIFICATE OF BENEFICIAL OWNERSHIP
Certificate Number 2
This certifies that MDSW AIRCRAFT HOLDINGS is the owner of a 100%
beneficial interest in Morgan Stanley Aircraft Finance a statutory business
trust organized under the laws of the state of Delaware (the "Trust").
This certificate and the beneficial interest represented hereby are
issued under and shall be held subject to all of the provisions of the Amended
and Restated Trust Agreement of the Trust, as amended from time to time, which
the holder by acceptance hereof accepts.
IN WITNESS WHEREOF, a Signatory Trustee of the Trust has executed
this certificate as of March 15, 2000
MORGAN STANLEY AIRCRAFT FINANCE
By:
----------------------------
Name: Brian J. Gill
Title: Authorized Signatory
