TRUST AGREEMENT ____
Dated as of September 25, 1997
Between
METLIFE CAPITAL CREDIT L.P.
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION
One Embraer Model EMB-145 Aircraft
Bearing Manufacturer's Serial No. 145.___
and U.S. Registration No. N_____
with Two Xxxxxxx Model AE3007A Engines
Bearing Engine Manufacturer's
Serial Nos. _________ and _________
TABLE OF CONTENTS
PAGE
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Section 1. Definitions.............................................. 1
Section 2. Declaration Of Trust..................................... 1
Section 3. Authorization; Conditions Precedent...................... 1
3.1 Authorization............................................ 1
3.2 Conditions Precedent..................................... 2
3.3 Limitations on Control................................... 3
Section 4. Receipt, Distribution And Application Of Income From
The Trust Estate......................................... 4
4.1 Payments from Trust Estate Only.......................... 4
4.2 Distribution of Payments................................. 4
4.2.1 Payments to Mortgagee........................... 4
4.2.2 Payments to Owner Trustee, Other Parties........ 4
4.2.3 Certain Distributions to Owner Participant...... 5
4.2.4 Excluded Payments............................... 5
4.3 Method of Payments....................................... 5
Section 5. Duties Of Owner Trustee.................................. 5
5.1 Notice of Event of Default............................... 5
5.2 Action upon Instructions................................. 6
5.3 Limitations on Duties.................................... 6
5.4 No Duties except as Specified; No Action except
as Specified............................................. 7
5.4.1 No Duties except as Specified................... 7
5.4.2 No Action except as Specified................... 7
5.5 Satisfaction of Conditions Precedent..................... 7
5.6 Fixed Investment Trust................................... 7
Section 6. Owner Trustee............................................ 7
6.1 Acceptance of Trusts and Duties.......................... 7
6.2 Absence of Certain Duties................................ 8
6.3 No Representations or Warranties as to Certain Matters... 9
6.4 No Segregation of Monies; Interest....................... 9
6.5 Reliance upon Certificates, Counsel and Agents........... 9
6.6 Not Acting in Individual Capacity........................ 10
6.7 Fees; Compensation....................................... 10
6.8 Tax Returns.............................................. 11
Section 7. Indemnification Of First Security By Owner Participant... 11
TABLE OF CONTENTS
(Continued)
PAGE
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Section 8. Transfer Of Owner Participant's Interest.................. 12
8.1 Transfer of Interest...................................... 12
Section 9. Successor Owner Trustees; Co-Trustees..................... 12
9.1 Resignation of Owner Trustee; Appointment of Successor.... 12
9.1.1 Resignation or Removal........................... 12
9.1.2 Execution and Delivery of Documents, Etc......... 13
9.1.3 Qualifications................................... 14
9.1.4 Merger, Etc...................................... 14
9.2 Co-Trustees and Separate Trustees......................... 14
Section 10. Supplements And Amendments To Trust Agreement And Other
Documents................................................ 15
10.1 Supplements and Amendments and Delivery Thereof.......... 15
10.1.1 Supplements and Amendments...................... 15
10.1.2 Delivery of Amendments and Supplements to
Certain Parties................................. 16
10.2 Discretion as to Execution of Documents.................. 16
10.3 Absence of Requirements as to Form....................... 16
10.4 Distribution of Documents................................ 18
10.5 No Request Needed as to Lease Supplement and Trust
Indenture Supplement..................................... 17
Section 11. Miscellaneous............................................ 17
11.1 Termination of Trust Agreement........................... 17
11.2 Termination at Option of the Owner Participant........... 17
11.3 Owner Participant Has No Legal Title in Trust Estate..... 18
11.4 Assignment, Sale, etc. of Aircraft....................... 18
11.5 Trust Agreement for Benefit of Certain Parties Only...... 18
11.6 Citizenship of Owner Participant......................... 18
11.7 Notices.................................................. 18
11.8 Severability............................................. 18
11.9 Waivers, Etc............................................. 19
11.10 Counterparts............................................. 19
11.11 Binding Effect, Etc...................................... 19
11.12 Headings; References..................................... 19
11.13 Governing Law............................................ 19
TRUST AGREEMENT ____
This TRUST AGREEMENT ____, dated as of September 25, 1997, between
METLIFE CAPITAL CREDIT L.P., a Delaware limited partnership ("Owner
Participant"), and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association (in its individual capacity, "First Security" and otherwise not in
its individual capacity but solely as trustee hereunder, "Owner Trustee").
W I T N E S S E T H:
- - - - - - - - - -
Section 1. DEFINITIONS. Capitalized terms used but not defined herein
shall have the respective meanings set forth or incorporated by reference, and
shall be construed and interpreted in the manner described, in Annex A to the
Lease.
Section 2. DECLARATION OF TRUST. First Security hereby declares that
it will hold the Trust Estate as Owner Trustee upon the trusts hereinafter set
forth for the use and benefit of Owner Participant, subject, however, to the
provisions of and the Lien created by the Trust Indenture and to the provisions
of the Lease and the Participation Agreement.
Section 3. Authorization; Conditions Precedent
3.1 AUTHORIZATION. In respect of the Aircraft, Owner Participant
hereby authorizes and directs Owner Trustee to, and Owner Trustee agrees for the
benefit of Owner Participant that it will, on and after the Delivery Date,
subject (except with respect to Section 3.1(a)) to due compliance with the terms
of Section 3.2:
(a) execute and deliver the Participation Agreement, the Trust
Indenture, the Lease and the other Owner Trustee Agreements (in the
respective forms in which they are delivered from time to time by Owner
Participant to Owner Trustee);
(b) subject to the terms of this Trust Agreement, exercise (i) its
rights and perform its duties under the Participation Agreement, (ii) the
rights and perform the duties of Lessor under the Lease and (iii) its
rights and perform its duties under the Trust Indenture and the other Owner
Trustee Agreements;
(c) execute, issue and deliver to Mortgagee for authentication and
further delivery to the Subordination Agent the Equipment Notes in the
amount and as provided in Section 2 of the Participation Agreement;
(d) purchase the Aircraft pursuant to the Participation Agreement;
(e) accept from Existing Lessor the delivery of the Aircraft Xxxx of
Sale, the FAA Xxxx of Sale and the invoice with respect to such Aircraft;
(f) effect the registration of the Aircraft with the FAA in the name
of Owner Trustee by filing or causing to be filed with the FAA: (i) the FAA
Xxxx of Sale; (ii) an Aircraft Registration Application in the name of
Owner Trustee (including, without limitation, an affidavit from Owner
Trustee in compliance with the provisions of Section 47.7(c)(2) of the FAA
Regulations); and (iii) this Trust Agreement;
(g) execute and deliver the Financing Statements referred to in
Section 5.1.2 (xxiv) of the Participation Agreement, together with all
other agreements, documents and instruments referred to in Section 5 of the
Participation Agreement to which Owner Trustee is to be a party;
(h) make payment of Lessor's Cost for the Aircraft from the aggregate
amount of the Commitments for the Aircraft of Owner Participant and Loan
Participant, to the extent received by Owner Trustee, in the manner
provided in the Participation Agreement;
(i) execute and deliver Lease Supplement No. 1 covering the Aircraft;
(j) execute and deliver a Trust Indenture Supplement covering the
Aircraft; and
(k) execute and deliver all such other instruments, documents or
certificates and take all such other actions in accordance with the
direction of Owner Participant, as Owner Participant may deem necessary or
advisable in connection with the transactions contemplated by this Trust
Agreement and the other Operative Agreements.
3.2 CONDITIONS PRECEDENT. The rights and obligations of Owner Trustee
to take the actions required by Section 3.1 shall be subject to the following
conditions precedent:
(a) Owner Trustee shall have received the notice described in Section
5.1.1 of the Participation Agreement, when and as required thereby, or
shall have been deemed to have waived such notice in accordance with
Section 5.1.1 of the Participation Agreement;
(b) Each Participant shall have made the full amount of its Commitment
specified in Section 2.1 of the Participation Agreement available to Owner
Trustee, in immediately available funds, in accordance with Sections 2 and
4 of the Participation Agreement; and
(c) Owner Participant shall have notified Owner Trustee that the terms
and conditions of Section 5 of the Participation Agreement, insofar as they
relate to conditions precedent to performance by Owner Participant of its
obligations thereunder, have been either fulfilled to the satisfaction of,
or waived by, Owner Participant. Owner Participant shall, by instructing
Owner Trustee to release the full amount of its Commitment then held by
Owner Trustee as provided in Section 2 of the Participation Agreement, be
deemed to have found satisfactory to it, or waived, all such conditions
precedent.
3.3 LIMITATIONS ON CONTROL.
(a) Notwithstanding any other provision of this Trust Agreement, but
subject to paragraph (b) of this Section 3.3, the Owner Participant will
have no rights or powers to direct, influence or control the Owner Trustee
in the performance of the Owner Trustee's duties under this Trust Agreement
in connection with matters involving the ownership and operation of the
Aircraft by the Owner Trustee. In all matters involving the ownership and
operation of the Aircraft by the Owner Trustee, the Owner Trustee shall
have absolute and complete discretion in connection therewith and shall be
free of any kind of influence or control whatsoever by the Owner
Participant, and the Owner Trustee shall exercise its duties under this
Trust Agreement in connection with matters involving the ownership and
operation of the Aircraft by the Owner Trustee as it, in its discretion,
shall deem necessary to protect the interests of the United States,
notwithstanding any countervailing interest of any foreign power which, or
whose citizens may have a direct or indirect interest in the Owner
Participant and any such action by the Owner Trustee shall not be
considered malfeasance or in breach of any obligation which the Owner
Trustee might otherwise have to the Owner Participant; PROVIDED, HOWEVER,
that subject to the foregoing limitations, the Owner Trustee shall exercise
its discretion in all matters involving the ownership and operation of the
Aircraft by the Owner Trustee with due regard for the interests of the
Owner Participant. In exercising any of its rights and duties under this
Trust Agreement in connection with matters which may arise not relating to
the ownership and operation of the Aircraft, the Owner Trustee shall be
permitted to seek the advice of the Owner Participant before taking, or
refraining from taking, any action with respect thereto. The Owner Trustee
shall notify the Owner Participant of its exercise of rights and duties
under this Trust Agreement in connection with matters involving the
ownership and operation of the Aircraft by the Owner Trustee.
(b) Subject to the requirements of the preceding paragraph (a), the
Owner Trustee agrees that it will not, without the prior written consent of
the Owner Participant, (i) sell, mortgage, pledge or otherwise dispose of
the Aircraft or other assets held in the Trust Estate relating thereto
except as otherwise expressly provided for herein, or (ii) amend the Lease,
any Permitted Sublease or other Operative Agreements or give any consents
thereunder.
(c) The purpose of this Section 3.3 is to give the Owner Trustee the
power to manage and control the Aircraft with respect to matters involving
the ownership and operation of the Aircraft by the Owner Trustee in the
event that the Owner Trustee becomes the owner of the Aircraft or is deemed
to be the owner of the Aircraft pursuant to Law so as to assure that (i)
the Aircraft shall be controlled with respect to such matters by a Citizen
of the United States, (ii) the Owner Participant shall have no power to
influence or control the exercise of the Owner Trustee's authority with
respect to such matters and (iii) the Owner Trustee shall be able to give
the affidavit required by Section 47.7(c)(2)(iii) of the Federal Aviation
Regulations, 14 C.F.R. 47.7(c)(2)(iii). This Section 3.3 shall be construed
in furtherance of the foregoing purpose.
Section 4. Receipt, Distribution And Application Of Income From The
Trust Estate
4.1 PAYMENTS FROM TRUST ESTATE ONLY. Except as provided in Section 7,
all payments to be made by Owner Trustee under this Trust Agreement shall be
made only from (a) in the case of funds made available in accordance with
Section 4 of the Participation Agreement, the Commitments (except as otherwise
provided in Section 14 of the Participation Agreement) and (b) in the case of
all other payments, the income from and proceeds of the Trust Estate to the
extent that Owner Trustee shall have received sufficient income or proceeds from
the Trust Estate to make such payments. Owner Participant agrees that it will
look solely (y) in the case of funds made available in accordance with Section 4
of the Participation Agreement, to the Commitments and any income therefrom
(except as otherwise provided in Section 14 of the Participation Agreement) and
(z) in the case of all other payments, to the income from and proceeds of the
Trust Estate to the extent available for distribution to Owner Participant as
provided in this Trust Agreement. Except as provided in Section 7, Owner
Participant agrees that First Security is neither personally liable to Owner
Participant for any amounts payable nor subject to any other liability under
this Trust Agreement.
4.2 Distribution of Payments.
4.2.1 PAYMENTS TO MORTGAGEE. Until the Trust Indenture shall have
been discharged pursuant to Section 10.01 thereof, all Rent, insurance
proceeds and requisition or other payments of any kind included in the
Trust Estate (other than Excluded Payments) payable to Owner Trustee shall
be payable directly to Mortgagee (and, if any of the same are received by
Owner Trustee, shall upon receipt be paid over to Mortgagee without
deduction, set-off or adjustment of any kind) for distribution in
accordance with the provisions of Article III of the Trust Indenture;
PROVIDED, that any payments received by Owner Trustee from (a) Airframe
Manufacturer with respect to Owner Trustee's fees and disbursements or (b)
Owner Participant pursuant to Section 7 shall not be paid over to Mortgagee
but shall be retained by Owner Trustee and applied toward the purpose for
which such payments were made.
4.2.2 PAYMENTS TO OWNER TRUSTEE, OTHER PARTIES. After the Trust
Indenture shall have been discharged pursuant to Section 10.01 thereof, any
payment of the type referred to in Section 4.2.1 (other than Excluded
Payments) received by Owner Trustee, any payment received from Mortgagee
(other than Excluded Payments) and any other amount received as part of the
Trust Estate and for the application or distribution of which no provision
is made in this Trust Agreement shall be distributed forthwith upon receipt
by Owner Trustee in the following order of priority: FIRST, so much of such
payment as shall be required to reimburse Owner Trustee for any expenses
not otherwise reimbursed as to which Owner Trustee is entitled to be so
reimbursed pursuant to the provisions hereof shall be retained by Owner
Trustee; SECOND, the amount set forth in Schedule 1 hereto, if any, on a
Payment Date shall be paid to Owner Participant; THIRD, the amount set
forth in Schedule 2 hereto shall be paid to Equity Guarantor; and FOURTH,
the balance, if any, shall be paid to Owner Participant.
4.2.3 CERTAIN DISTRIBUTIONS TO OWNER PARTICIPANT. All amounts
from time to time distributable by Mortgagee to Owner Participant pursuant
to the Trust Indenture shall, if paid to Owner Trustee, be distributed by
Owner Trustee to Owner Participant in accordance with the provisions of
Article III of the Trust Indenture; PROVIDED, that any payments received by
Owner Trustee from (a) Lessee with respect to Owner Trustee's fees and
disbursements or (b) Owner Participant pursuant to Section 7 shall not be
paid over to Owner Participant but shall be retained by Owner Trustee and
applied toward the purpose for which such payments were made.
4.2.4 EXCLUDED PAYMENTS. Any Excluded Payments received by Owner
Trustee shall be paid by Owner Trustee to the Person to whom such Excluded
Payments are payable under the provisions of the Participation Agreement,
the Tax Indemnity Agreement or the Lease.
4.3 METHOD OF PAYMENTS. Owner Trustee shall make distributions or
cause distributions to be made to Owner Participant pursuant to this Section 4
by transferring the amount to be distributed by wire transfer in immediately
available funds on the day received (or on the next succeeding Business Day if
the funds to be so distributed shall not have been received by Owner Trustee by
12:00 noon, New York City time, and which funds Owner Trustee shall not have
been reasonably able to distribute to Owner Participant on the day received) to
Owner Participant's account set forth in Schedule 1 to the Participation
Agreement or to such other account or accounts of Owner Participant as Owner
Participant may designate from time to time in writing to Owner Trustee;
PROVIDED, that Owner Trustee shall use reasonable efforts to invest overnight,
in investments that would be permitted under Section 4.4 of the Lease, all funds
received by it at or later than 12:00 noon, New York City time, and which funds
Owner Trustee shall not have been reasonably able to distribute to Owner
Participant on the day received).
Section 5.Duties Of Owner Trustee.
5.1 NOTICE OF EVENT OF DEFAULT
(a) If Owner Trustee shall have knowledge of a Lease Default or a
Lease Event of Default or an Indenture Default or an Indenture Event of
Default, Owner Trustee shall give to Owner Participant, Mortgagee, Lessee
and Equity Guarantor prompt telephonic or telex notice thereof followed by
prompt confirmation thereof by certified mail, postage prepaid, PROVIDED,
that (i) in the case of an event which with the passage of time would
constitute an Indenture Event of Default of the type referred to in
paragraph (c) or (e) of Section 4.02 of the Trust Indenture, such notice
shall in no event be furnished later than ten days after Owner Trustee
shall first have knowledge of such event and (ii) in the case of a
misrepresentation by Owner Trustee which with the passage of time would
constitute an Indenture Event of Default of the type referred to in
paragraph (d) of Section 4.02 of the Trust Indenture, such notice shall in
no event be furnished later than ten days after Owner Trustee shall first
have knowledge of such event.
(b) Subject to the terms of Section 5.3, Owner Trustee shall take such
action or shall refrain from taking such action, not inconsistent with the
provisions of the Trust Indenture, with respect to such Lease Default,
Lease Event of Default, Indenture Default or Indenture Event of Default or
other event as Owner Trustee shall be directed in writing by Owner
Participant. For all purposes of this Trust Agreement, the Lease and the
other Operative Agreements, in the absence of Actual Knowledge of Owner
Trustee, Owner Trustee shall not be deemed to have knowledge of a Lease
Default, Lease Event of Default, Indenture Default or Indenture Event of
Default unless notified in writing by Mortgagee, Owner Participant or
Lessee.
5.2 ACTION UPON INSTRUCTIONS. Subject to the terms of Sections 5.1 and
5.3, upon the written instructions at any time and from time to time of Owner
Participant, Owner Trustee will take such of the following actions, not
inconsistent with the provisions of the Lease and the Trust Indenture, as may be
specified in such instructions: (a) give such notice or direction or exercise
such right, remedy or power under this Trust Agreement or any of the other Owner
Trustee Agreements or in respect of all or any part of the Trust Estate, or take
such other action, as shall be specified in such instructions (including
entering into such agreements and instruments as shall be necessary under
Section 10); (b) take such action to preserve or protect the Trust Estate
(including the discharge of Liens) as may be specified in such instructions; (c)
approve as satisfactory to it all matters required by the terms of the Lease or
the other Operative Agreements to be satisfactory to Owner Trustee, it being
understood that without written instructions of Owner Participant, Owner Trustee
shall not approve any such matter as satisfactory to it; (d) subject to the
rights of Lessee under the Operative Agreements, after the expiration or earlier
termination of the Lease, convey all of Owner Trustee's right, title and
interest in and to the Aircraft for such amount, on such terms and to such
purchaser or purchasers as shall be designated in such instructions, or retain,
lease or otherwise dispose of, or from time to time take such other action with
respect to, the Aircraft on such terms as shall be designated in such
instructions; and (e) take or refrain from taking such other action or actions
as may be specified in such instructions.
5.3 LIMITATIONS ON DUTIES. Owner Trustee shall not be required to take
any action under Section 5.1 (other than the giving of the notices referred to
therein) or 5.2 if Owner Trustee shall reasonably believe such action is not
adequately indemnified by Owner Participant under Section 7, unless Lessee or
Owner Participant agrees to furnish such additional indemnity as shall
reasonably be required, in manner and form satisfactory to Owner Trustee, and,
in addition to the extent not otherwise paid pursuant to the provisions of the
Lease or of the Participation Agreement, to pay the reasonable compensation of
Owner Trustee for the services performed or to be performed by it pursuant to
such direction and any reasonable fees and disbursements of counsel or agents
employed by Owner Trustee in connection therewith. Owner Trustee shall not be
required to take any action under Section 5.1 or 5.2 (other than the giving of
the notices referred to therein) if Owner Trustee shall have been advised by
counsel that such action is contrary to the terms of any of the Owner Trustee
Agreements or is otherwise contrary to Law and Owner Trustee has delivered to
Owner Participant written notice of the basis for its refusal to act.
5.4 No Duties except as Specified; No Action except as Specified.
5.4.1 NO DUTIES EXCEPT AS SPECIFIED. Owner Trustee shall not have
any duty or obligation to manage, control, use, sell, dispose of or
otherwise deal with the Aircraft or any other part of the Trust Estate or
to otherwise take or refrain from taking any action under, or in connection
with, any of the Owner Trustee Agreements, except as expressly required by
the terms of any of the Owner Trustee Agreements, or (to the extent not
inconsistent with the provisions of the Trust Indenture) as expressly
provided by the terms hereof or in a written instruction from Owner
Participant received pursuant to the terms of Section 5.1 or 5.2, and no
implied duties or obligations shall be read into this Trust Agreement
against Owner Trustee. First Security agrees that it will, in its
individual capacity and at its own cost or expense (but without any right
of indemnity in respect of any such cost or expense hereunder or under the
Participation Agreement), promptly take such action as may be necessary to
duly discharge and satisfy in full all Lessor Liens attributable to it in
its individual capacity which it is required to discharge pursuant to
Section 7.3.1 of the Participation Agreement and otherwise comply with the
terms of said Section binding upon it.
5.4.2 NO ACTION EXCEPT AS SPECIFIED. Owner Trustee shall have no
power, right or authority to, and agrees that it will not, manage, control,
use, sell, dispose of or otherwise deal with the Aircraft or any other part
of the Trust Estate except (a) as expressly required by the terms of any of
the Owner Trustee Agreements, (b) as expressly provided by the terms hereof
or (c) as expressly provided in written instructions from Owner Participant
pursuant to Section 5.1 or 5.2.
5.5 SATISFACTION OF CONDITIONS PRECEDENT. Anything in this Trust
Agreement to the contrary notwithstanding, Owner Trustee shall, subject to the
satisfaction of special counsel for Owner Trustee of the occurrence of all the
applicable conditions precedent specified in Section 3.2, comply with the
provisions of Section 3.1.
5.6 FIXED INVESTMENT TRUST. Notwithstanding anything in this Trust
Agreement to the contrary, Owner Trustee shall not be authorized and shall have
no power to "vary the investment" of Owner Participant within the meaning of
Treasury Regulations Section 301.7701-4(c)(1), it being understood that Owner
Trustee shall have the power and authority to fulfill its obligations under
Section 4.3 hereof, Section 4.3.3 of the Participation Agreement and Section 4.4
of the Lease.
Section 6. Owner Trustee.
6.1 ACCEPTANCE OF TRUSTS AND DUTIES. First Security accepts the trusts
hereby created and agrees to perform the same as Owner Trustee but only upon the
terms hereof and the Trust Indenture applicable to it. Owner Trustee also agrees
to receive and disburse all monies received by it constituting part of the Trust
Estate pursuant to the terms hereof. First Security shall not be answerable or
accountable under any circumstances, except for (a) its own willful misconduct
or gross negligence (including, without limitation, in connection with any
activities of Owner Trustee in violation of Section 5.4.2), (b) its failure (in
its individual capacity) to perform its obligations under Section 5.4.1, (c) its
or Owner Trustee's failure to use ordinary care to receive or disburse funds or
to comply with the first sentence of Section 6.8, (d) liabilities that may
result from the inaccuracy of any representation or breach of warranty of it in
its individual capacity (or from the failure by it in its individual capacity to
perform any covenant) in this Trust Agreement, the Trust Indenture, the Lease or
the Participation Agreement or elsewhere in any of the other Operative
Agreements, (e) taxes, fees or other charges on, based on or measured by any
fees, commissions or compensation received by First Security in connection with
the transactions contemplated by this Trust Agreement and the other Operative
Agreements to which it (in its individual capacity or as Owner Trustee) is a
party, (f) its or Owner Trustee's failure to use ordinary care in receiving or
disbursing funds or in connection with its obligation to invest funds pursuant
to Section 4 of the Participation Agreement, Section 4.4 of the Lease or Section
4.3 hereof, (g) any liability on the part of Owner Trustee arising out of its
negligence or willful or negligent misconduct in connection with its obligations
under Section 5.1 (other than the first sentence thereof), 6.8 or 9.2 hereof or
Section 4.01 of the Trust Indenture. First Security shall have no obligation to
advance its individual funds for any purpose, and Owner Trustee shall have no
obligation to distribute to Owner Participant, Lessee or any third party any
amounts to be paid to Owner Trustee until such amounts are collected by Owner
Trustee.
6.2 ABSENCE OF CERTAIN DUTIES.
(a) Except in accordance with written instructions furnished pursuant
to Section 5.1 or 5.2 and except as provided in, and without limiting the
generality of, Sections 3.1 and 5.4.1 and the last sentence of Section
9.1.2, and subject to Section 4.01 of the Trust Indenture, neither Owner
Trustee nor First Security shall have any duty (i) to see to any recording
or filing of any Operative Agreement or of any supplement to any thereof or
to see to the maintenance of any such recording or filing or any other
filing of reports with the FAA or other governmental agencies, except that
of First Security to comply with the FAA reporting requirements set forth
in 14 C.F.R. ss. 47.45 and 14 C.F.R. ss. 47.51, and Owner Trustee shall, to
the extent that information for that purpose is timely supplied by Lessee
pursuant to any of the Operative Agreements, complete and timely submit
(and furnish Owner Participant with a copy of) any and all reports relating
to the Aircraft that may from time to time be required by the FAA or any
government or governmental authority having jurisdiction, (ii) to see to
any insurance on the Aircraft or to effect or maintain any such insurance,
whether or not Lessee shall be in default with respect thereto, other than
to forward to Owner Participant copies of all reports and other written
information which Owner Trustee receives from Lessee pursuant to Section 11
of the Lease, (iii) except as provided in Section 7.3.1 or 7.3.2 of the
Participation Agreement, Section 4.01 of the Trust Indenture or Section 5.4
or 6.1 hereof, to see to the payment or discharge of any tax, assessment or
other governmental charge or any lien or encumbrance of any kind owing with
respect to or assessed or levied against any part of the Trust Indenture
Estate or the Trust Estate, except as provided in Section 6.3.9 of the
Participation Agreement or (iv) to inspect Lessee's books and records with
respect to the Aircraft at any time permitted pursuant to the Lease.
(b) Notwithstanding clause (a), Owner Trustee will furnish to
Mortgagee and Owner Participant, promptly upon receipt thereof, duplicates
or copies of all reports, notices, requests, demands, certificates,
financial statements and other instruments furnished to Owner Trustee under
the Lease or any other Operative Agreement except to the extent to which a
responsible officer of Owner Trustee reasonably believes (and confirms by
telephone call with Owner Participant) that duplicates or copies thereof
have already been furnished to Owner Participant by some other person.
6.3 NO REPRESENTATIONS OR WARRANTIES AS TO CERTAIN MATTERS. NEITHER
FIRST SECURITY NOR OWNER TRUSTEE MAKES OR SHALL BE DEEMED TO HAVE MADE (a) ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, AIRWORTHINESS,
VALUE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE FOR A
PARTICULAR PURPOSE OF THE AIRCRAFT OR ANY PART THEREOF, 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, THE ABSENCE OF ANY STRICT
LIABILITY OBLIGATION OR ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, WITH RESPECT TO THE AIRCRAFT OR ANY PART THEREOF WHATSOEVER, except
that First Security warrants to Owner Participant that on the Delivery Date
Owner Trustee shall have received whatever title to the Aircraft that was
conveyed to it and that the Aircraft shall, on the Delivery Date and during the
Term, be free of Lessor Liens attributable to First Security or (b) any
representation or warranty as to the validity, legality or enforceability of
this Trust Agreement or any other Operative Agreement to which First Security,
in its individual capacity or as Owner Trustee, is a party, or any other
document or instrument, or as to the correctness of any statement contained in
any thereof except to the extent that any such statement is expressly made
herein or therein by such party as a representation by First Security, in its
individual capacity or as Owner Trustee, as the case may be, and except that
First Security hereby represents and warrants that it has all corporate power
and authority to execute, deliver and perform this Trust Agreement and that this
Trust Agreement has been, and (assuming due authorization, execution and
delivery by Owner Participant of this Trust Agreement) the other Operative
Agreements to which it or Owner Trustee is a party have been (or at the time of
execution and delivery of any such instrument by it or Owner Trustee under this
Trust Agreement or pursuant to the terms of the Participation Agreement that
such an instrument will be) duly executed and delivered by one of its officers
who is or will be, as the case may be, duly authorized to execute and deliver
such instruments on behalf of itself or Owner Trustee, as the case may be, and
that this Trust Agreement constitutes the legal, valid and binding obligation of
First Security or Owner Trustee, as the case may be, enforceable against First
Security or Owner Trustee, as the case may be, in accordance with its terms.
6.4 NO SEGREGATION OF MONIES; INTEREST. Monies received by Owner
Trustee under this Trust Agreement need not be segregated in any manner except
to the extent required by Law, or except as provided in written instructions
from Owner Participant, and shall be invested as provided in Section 4.3 hereof
or Section 4.4 of the Lease.
6.5 RELIANCE UPON CERTIFICATES, COUNSEL AND AGENTS. Owner Trustee
shall incur no liability to anyone in acting in good faith in reliance upon and
in accordance with any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or paper
reasonably believed by it to be genuine and reasonably believed by it to be
signed by the proper party or parties. Unless other evidence in respect thereof
is specifically prescribed in this Trust Agreement, any request, direction,
order or demand of Owner Participant or Lessee mentioned in this Trust Agreement
or in any of the other Owner Trustee Agreements shall be sufficiently evidenced
by written instruments signed by the Chairman of the Board, the President, any
Vice President or any other officer and in the name of Owner Participant or
Lessee, as the case may be. Owner Trustee may accept a copy of a resolution of
the Board of Directors or Executive Committee of Lessee, certified by the
Secretary or an Assistant Secretary of Lessee as duly adopted and in full force
and effect, as conclusive evidence that such resolution has been duly adopted by
said Board of Directors or Executive Committee and that the same is in full
force and effect. As to any fact or matter the manner of ascertainment of which
is not specifically described in this Trust Agreement, Owner Trustee may, absent
Actual Knowledge to the contrary, for all purposes rely on a certificate signed
by the Chairman of the Board, the President, any Vice President or any other
officer of Lessee, and the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of Lessee, as to such fact or matter, and such
certificate shall constitute full protection to Owner Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon and in
accordance therewith. In the administration of trusts under this Trust
Agreement, Owner Trustee may execute any of the trusts or powers and perform its
powers and duties under this Trust Agreement directly or through agents or
attorneys and may, at the expense of the Trust Estate, consult with counsel,
accountants and other skilled persons to be selected and employed by it. Owner
Trustee shall not be liable for anything done, suffered or omitted in good faith
by it in accordance with the advice or opinion of any such counsel, accountants
or other skilled persons.
6.6 NOT ACTING IN INDIVIDUAL CAPACITY. In acting under this Trust
Agreement, First Security acts solely as Owner Trustee and not in its individual
capacity except as otherwise expressly provided in this Trust Agreement or in
the other Operative Agreements to which it is a party; and, except as may be
otherwise expressly provided in this Trust Agreement, the Lease, the
Participation Agreement and the Trust Indenture, all persons, other than the
Owner Participant as provided in this Trust Agreement or the Trust Indenture,
having any claim against Owner Trustee by reason of the transactions
contemplated hereby shall look only to the Trust Estate for payment or
satisfaction thereof except to the extent provided in Section 6.1 or otherwise
as Owner Trustee shall expressly agree otherwise in writing.
6.7 FEES; COMPENSATION. Airframe Manufacturer shall pay the
Transaction Expenses and ongoing fees of Owner Trustee throughout the Term
pursuant to Section 9.2 of the Participation Agreement. The Trust Estate shall
not have any liability for any such fees and expenses; PROVIDED, that the
foregoing shall not limit the obligations of Owner Participant under Sections
5.3 and 7; PROVIDED, that Owner Trustee shall have a Lien upon the Trust Estate
for any such fee not paid by Airframe Manufacturer as contemplated by Section
9.2 of the Participation Agreement and such Lien shall entitle Owner Trustee to
priority as to payment thereof over payment to any other Person under this Trust
Agreement; PROVIDED, that such Lien shall be subject and subordinate in all
events to the Lien of the Trust Indenture; and PROVIDED, FURTHER, that Owner
Trustee shall have no right to exercise, and shall not exercise, any rights or
remedies Owner Trustee may have with respect to such Lien unless and until the
Secured Obligations have been paid and performed in full.
6.8 TAX RETURNS. Owner Trustee shall be responsible for the keeping of
all appropriate books and records relating to the receipt and disbursement of
all monies under this Trust Agreement or any agreement contemplated hereby.
Owner Participant shall be responsible for causing to be prepared and filed all
income tax returns required to be filed by Owner Participant. Owner Trustee
shall be responsible for causing to be prepared, at the expense of Airframe
Manufacturer, all income tax returns required to be filed with respect to the
trust created hereby and shall execute and file such returns; PROVIDED, that
Owner Trustee shall send promptly a completed copy of such return to Owner
Participant not more than sixty nor less than fifteen days prior to the due date
of the return, PROVIDED, that Owner Trustee shall have timely received all
necessary information to complete and deliver to Owner Participant such return.
Owner Participant, upon request, will furnish Owner Trustee with all such
information as may be reasonably required from Owner Participant in connection
with the preparation of such income tax returns. Owner Trustee shall keep copies
of all returns delivered to or filed by it.
Section 7. INDEMNIFICATION OF FIRST SECURITY BY OWNER PARTICIPANT.
Owner Participant hereby agrees, whether or not any of the transactions
contemplated hereby shall be consummated, to assume liability for, and hereby
indemnifies, protects, saves and keeps harmless, First Security and its
successors, assigns, agents and servants, from and against any and all
liabilities, obligations, losses, damages, penalties, taxes (excluding any Taxes
which are not required to be indemnified by Lessee pursuant to Section 9.1 or
9.3 of the Participation Agreement and excluding any taxes payable by First
Security on or measured by any compensation received by First Security for its
services under this Trust Agreement), claims, actions, suits, costs, expenses or
disbursements (including, without limitation, reasonable legal fees and
expenses, but excluding internal costs and expenses such as salaries and
overhead, and including, without limitation, any liability of an owner, any
strict liability and any liability without fault) of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against First
Security (whether or not also indemnified against by Lessee under the Lease or
under the Participation Agreement or also indemnified against by any other
Person; PROVIDED, that Owner Participant shall be subrogated to the rights of
Owner Trustee against Lessee or any other indemnitor) in any way relating to or
arising out of this Trust Agreement or any of the other Operative Agreements or
the enforcement of any of the terms of any thereof, or in any way relating to or
arising out of the manufacture, purchase, acceptance, nonacceptance, rejection,
ownership, delivery, lease, possession, use, operation, condition, sale, return
or other disposition of the Aircraft (including, without limitation, latent and
other defects, whether or not discoverable, and any claim for patent, trademark
or copyright infringement), or in any way relating to or arising out of the
administration of the Trust Estate or the action or inaction of Owner Trustee,
under this Trust Agreement, except (a) in the case of gross negligence or
willful misconduct on the part of First Security, in its individual capacity or
as Owner Trustee, in the performance or nonperformance of its duties under this
Trust Agreement or under any of the other Owner Trustee Agreements or (b) those
Claims resulting from the inaccuracy of any representation or warranty of First
Security (or from the failure of First Security to perform any of its covenants)
in Section 6.3, in Section 6.03 of the Trust Indenture, in Section 4 of the
Lease, in Section 6.3 of the Participation Agreement or elsewhere in any of the
other Operative Agreements or (c) as may result from a breach by First Security
of its covenant in the last sentence of Section 5.4.1 or (d) in the case of the
failure to use ordinary care on the part of First Security, in its individual
capacity or as Owner Trustee, in the receipt or disbursement of funds or in
connection with its obligation to invest funds pursuant to Section 4 of the
Participation Agreement, Section 4.4 of the Lease or Section 4.3 hereof or in
compliance with the provisions of the first sentence of Section 6.8 or (e) any
liability on the part of Owner Trustee arising out of its negligence or willful
or negligent misconduct in connection with its obligations under Section 5.1,
6.8 or 9.2 hereof or Section 4.01 of the Trust Indenture, or (f) those claims
arising under any circumstances or upon any terms where Lessee would not have
been required to indemnify First Security pursuant to Section 9.1 or 9.3 of the
Participation Agreement (disregarding for purposes of this paragraph Sections
9.1.2(b) and 9.3.2(j)); PROVIDED, that before asserting its right to
indemnification, if any, pursuant to this Section 7, First Security shall first
demand its corresponding right to indemnification pursuant to Section 9 of the
Participation Agreement (but need not exhaust any or all remedies available
thereunder). The indemnities contained in this Section 7 extend to First
Security only in its individual capacity and shall not be construed as
indemnities of the Trust Indenture Estate or the Trust Estate (except to the
extent, if any, that First Security has been reimbursed by the Trust Indenture
Estate or the Trust Estate for amounts covered by the indemnities contained in
this Section 7). The indemnities contained in this Section 7 shall survive the
termination of this Trust Agreement. In addition, if necessary, First Security
shall be entitled to indemnification from the Trust Estate, subject to the Lien
of the Trust Indenture, for any liability, obligation, loss, damage, penalty,
tax, claim, action, suit, cost, expense or disbursement indemnified against
pursuant to this Section 7 to the extent not reimbursed by Lessee, Owner
Participant or others, but without releasing any of them from their respective
agreements of reimbursement; and, to secure the same First Security shall have a
lien on the Trust Estate, subject to the lien of the Trust Indenture and subject
further to the provisions of Section 6.7, which shall be prior to any interest
therein of Owner Participant. The payor of any indemnity under this Section 7
shall be subrogated to any right of the person indemnified in respect of the
matter as to which such indemnity was paid.
Section 8. Transfer Of Owner Participant's Interest.
8.1 TRANSFER OF INTEREST. All provisions of Section 10 of the
Participation Agreement shall (with the same force and effect as if set forth in
full in this Section 8.1) be applicable to any assignment, conveyance or other
transfer by Owner Participant of any of its right, title or interest in and to
the Participation Agreement, the Trust Estate or this Trust Agreement.
Section 9. Successor Owner Trustees; Co-Trustees.
9.1 RESIGNATION OF OWNER TRUSTEE; APPOINTMENT OF SUCCESSOR
9.1.1 RESIGNATION OR REMOVAL. Owner Trustee or any successor
Owner Trustee (a) shall resign if required to do so pursuant to Section
13.3 of the Participation Agreement or upon obtaining Actual Knowledge of
any facts that would cast doubt upon its continuing status as a Citizen of
the United States and (b) may resign at any time without cause by giving at
least 60 days' prior written notice to Owner Participant, Mortgagee and
Lessee, such resignation to be effective upon the assumption of the trusts
hereunder by the successor Owner Trustee under Section 9.1.2. In addition,
Owner Participant may at any time remove Owner Trustee, with or without
cause by a notice in writing delivered to Owner Trustee, Mortgagee and
Lessee, such removal to be effective upon the assumption of the trusts
hereunder by the successor Owner Trustee under Section 9.1.2, PROVIDED,
that, in the case of a removal without cause, unless a Lease Event of
Default shall have occurred and be continuing, such removal shall be
subject to the consent of Lessee (which consent shall not be unreasonably
withheld). In the case of the resignation or removal of Owner Trustee,
Owner Participant may appoint a successor Owner Trustee by an instrument
signed by Owner Participant, with, unless a Lease Event of Default shall
have occurred and be continuing, the consent of Lessee (which consent shall
not be unreasonably withheld). If a successor Owner Trustee shall not have
been appointed within 30 days after such notice of resignation or removal,
Owner Trustee, any Owner Participant, Lessee or Mortgagee may apply to any
court of competent jurisdiction to appoint a successor Owner Trustee to act
until such time, if any, as a successor shall have been appointed as above
provided. Any successor Owner Trustee so appointed by such court shall
immediately and without further act be superseded by any successor Owner
Trustee appointed as above provided within one year from the date of the
appointment by such court.
9.1.2 EXECUTION AND DELIVERY OF DOCUMENTS, ETC. Any successor
Owner Trustee, however appointed, shall execute and deliver to the
predecessor Owner Trustee, with a copy to Owner Participant, Lessee and
Mortgagee, an instrument accepting such appointment and assuming the
obligations of Owner Trustee, in its individual capacity and as Owner
Trustee, under the Owner Trustee Agreements, and thereupon such successor
Owner Trustee, without further act, shall become vested with all the
estates, properties, rights, powers, duties and trusts of the predecessor
Owner Trustee in the trusts under this Trust Agreement with like effect as
if originally named Owner Trustee in this Trust Agreement; but
nevertheless, upon the written request of such successor Owner Trustee,
such predecessor Owner Trustee shall execute and deliver an instrument
transferring to such successor Owner Trustee, upon the trusts herein
expressed, all the estates, properties, rights, powers and trusts of such
predecessor Owner Trustee, and such predecessor Owner Trustee shall duly
assign, transfer, deliver and pay over to such successor Owner Trustee all
monies or other property then held by such predecessor Owner Trustee upon
the trusts herein expressed. Upon the appointment of any successor Owner
Trustee under this Section 9.1, the predecessor Owner Trustee will execute
such documents as are provided to it by such successor Owner Trustee and
will take such further actions as are requested of it by such successor
Owner Trustee as are required to cause registration of the Aircraft
included in the Trust Estate to be transferred upon the records of the FAA,
or other governmental authority having jurisdiction, into the name of the
successor Owner Trustee.
9.1.3 QUALIFICATIONS. Any successor Owner Trustee, however
appointed, shall be a Citizen of the United States and shall also be a bank
or trust company organized under the Laws of the United States or any state
thereof having a combined capital and surplus of at least $100,000,000, if
there be such an institution willing, able and legally qualified to perform
the duties of Owner Trustee under this Trust Agreement upon reasonable or
customary terms. No such successor Owner Trustee shall be located in a
jurisdiction which creates material adverse consequences for Lessee (unless
such material adverse consequences would be created by substantially all
jurisdictions where major banking or trust institutions are located).
9.1.4 MERGER, ETC. Any corporation into which First Security may
be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
First Security shall be a party, or any corporation to which substantially
all the corporate trust business of First Security may be transferred,
shall, subject to the terms of Section 9.1.3, be Owner Trustee under this
Trust Agreement without further act, PROVIDED, that such corporation shall
not also be the Mortgagee.
9.2 CO-TRUSTEES AND SEPARATE TRUSTEES.
(a) If at any time it shall be necessary or prudent in order to
conform to any Law of any jurisdiction in which all or any part of the
Trust Estate is located, or Owner Trustee being advised by counsel shall
determine that it is so necessary or prudent in the interest of Owner
Participant or Owner Trustee, or Owner Trustee shall have been directed to
do so by Owner Participant, Owner Trustee and Owner Participant shall
execute and deliver an agreement supplemental hereto and all other
instruments and agreements necessary or proper to constitute another bank
or trust company or one or more persons (any or all of which shall be a
Citizen of the United States) approved by Owner Trustee and Owner
Participant, either to act as co-trustee, jointly with Owner Trustee, or to
act as separate trustee under this Trust Agreement (any such co-trustee or
separate trustee being herein sometimes referred to as an "additional
trustee"). In the event Owner Participant shall not have joined in the
execution of such agreements' supplemental hereto within ten days after the
receipt of a written request from Owner Trustee so to do, or in case a
Lease Event of Default or Indenture Event of Default shall occur and be
continuing, Owner Trustee may act under the foregoing provisions of this
Section 9.2 without the concurrence of Owner Participant; and Owner
Participant hereby appoints Owner Trustee its agent and attorney-in-fact to
act for it under the foregoing provisions of this Section 9.2 in either of
such contingencies.
(b) Every additional trustee under this Trust Agreement shall, to the
extent permitted by Law, be appointed and act, and Owner Trustee and its
successors shall act, subject to the following provisions and conditions:
(i) All powers, duties, obligations and rights conferred upon
Owner Trustee in respect of the custody, control and management of
monies, the Aircraft or documents authorized to be delivered under
this Trust Agreement or under the Participation Agreement shall be
exercised solely by Owner Trustee;
(ii) All other rights, powers, duties and obligations conferred
or imposed upon Owner Trustee shall be conferred or imposed upon and
exercised or performed by Owner Trustee and such additional trustee
jointly, except to the extent that under any Law of any jurisdiction
in which any particular act or acts are to be performed (including the
holding of title to the Trust Estate) Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations shall be exercised and
performed by such additional trustee;
(iii) No power given to, or which it is provided hereby may be
exercised by, any such additional trustee shall be exercised under
this Trust Agreement by such additional trustee, except jointly with,
or with the consent in writing of, Owner Trustee;
(iv) No trustee under this Trust Agreement shall be personally
liable by reason of any action or omission of any other trustee under
this Trust Agreement;
(v) Owner Participant, at any time, by an instrument in writing
may remove any such additional trustee. In the event that Owner
Participant shall not have joined in the execution of any such
instrument within ten days after the receipt of a written request from
Owner Trustee so to do, Owner Trustee shall have the power to remove
any such additional trustee without the concurrence of Owner
Participant; and Owner Participant hereby appoints Owner Trustee its
agent and attorney-in-fact to act for it in such connection in such
contingency; and
(vi) No appointment of, or action by, any additional trustee will
relieve Owner Trustee of any of its obligations under, or otherwise
affect any of the terms of, the Trust Indenture or affect the
interests of Mortgagee or the Note Holders in the Trust Indenture
Estate.
(c) In case any separate trustee under this Section 9.2 shall die,
become incapable of acting, resign or be removed, the title to the Trust
Estate and all rights and duties of such separate trustee shall, so far as
permitted by Law, vest in and be exercised by Owner Trustee, without the
appointment of a successor to such separate trustee.
Section 10. SUPPLEMENTS AND AMENDMENTS TO TRUST AGREEMENT AND OTHER
DOCUMENTS.
10.1 SUPPLEMENTS AND AMENDMENTS AND DELIVERY THEREOF.
10.1.1 SUPPLEMENTS AND AMENDMENTS. Subject to Section 7.2.2 of
the Participation Agreement, this Trust Agreement may not be amended,
supplemented or otherwise modified except by an instrument in writing
signed by Owner Trustee and Owner Participant. Subject to Section 10.2,
Section 9.01 of the Trust Indenture and Section 7.6.7 of the Participation
Agreement, Owner Trustee will execute any amendment, supplement or other
modification of this Trust Agreement or of any other Owner Trustee
Agreement which it is requested in writing to execute by Owner Participant,
except that Owner Trustee shall not execute any such amendment, supplement
or other modification which, by the express provisions of any of the above
documents, requires the consent of any other party unless such consent
shall have been obtained; and PROVIDED, that, without the prior written
consent of Owner Participant, (a) no such supplement, amendment or
modification shall (i) modify any of the provisions of Section 4 or this
Section 10.1, (ii) reduce, modify or amend any indemnities in favor of
Owner Participant as set forth in Section 9 of the Participation Agreement
or in the Tax Indemnity Agreement, (iii) reduce the amount or extend the
time of payment of Basic Rent, Supplemental Rent, Stipulated Loss Value or
Termination Value as set forth in the Lease (except in accordance with
Section 3 of the Lease) or (iv) modify any of the rights of Owner
Participant under the Trust Indenture and (b) no such supplement, amendment
or modification shall require Owner Participant to invest or advance funds
or shall entail any additional personal liability or the surrender of any
indemnification, claim or individual right on the part of Owner Participant
with respect to any agreement or obligation.
10.1.2 DELIVERY OF AMENDMENTS AND SUPPLEMENTS TO CERTAIN PARTIES.
A signed copy of each amendment or supplement referred to in Section 10.1.1
to which Lessee is not a party shall be delivered promptly by Owner Trustee
to Lessee, and a signed copy of each amendment or supplement referred to in
Section 10.1.1 shall be delivered promptly by Owner Trustee to Mortgagee.
10.2 DISCRETION AS TO EXECUTION OF DOCUMENTS. Prior to executing any
document required to be executed by it pursuant to the terms of Section 10.1,
Owner Trustee shall be entitled to receive an opinion of its counsel to the
effect that the execution of such document is authorized under this Trust
Agreement. If in the opinion of Owner Trustee any such document adversely
affects any right, duty, immunity or indemnity in favor of Owner Trustee under
this Trust Agreement or under any other Owner Trustee Agreement, Owner Trustee
may in its discretion decline to execute such document unless Owner Trustee is
furnished with indemnification from Lessee or any other party upon terms and in
amounts reasonably satisfactory to Owner Trustee to protect the Trust Estate and
the Owner Trustee against any and all liabilities, costs and expenses arising
out of the execution of such documents.
10.3 ABSENCE OF REQUIREMENTS AS TO FORM. It shall not be necessary for
any written request furnished pursuant to Section 10.1 to specify the particular
form of the proposed documents to be executed pursuant to such Section 10.1, but
it shall be sufficient if such request shall indicate the substance thereof.
10.4 DISTRIBUTION OF DOCUMENTS. Promptly after the execution by Owner
Trustee of any document entered into pursuant to Section 10.1, Owner Trustee
shall mail, by certified mail, postage prepaid, a conformed copy thereof to
Owner Participant, but the failure of Owner Trustee to mail such conformed copy
shall not impair or affect the validity of such document.
10.5 NO REQUEST NEEDED AS TO LEASE SUPPLEMENT AND TRUST INDENTURE
SUPPLEMENT. No written request pursuant to Section 10.1 shall be required to
enable Owner Trustee to enter into, pursuant to Section 3.1 and the Lease or the
Trust Indenture, as the case may be, the Lease Supplement with Lessee and the
Trust Indenture Supplement.
Section 11. Miscellaneous.
11.1 TERMINATION OF TRUST AGREEMENT. This Trust Agreement and the
trusts created hereby shall be of no further force or effect upon the earlier of
(a) both the final discharge of the Trust Indenture pursuant to Section 10.01
thereof and the sale or other final disposition by Owner Trustee of all property
constituting part of the Trust Estate and the final distribution by Owner
Trustee of all monies or other property or proceeds constituting part of the
Trust Estate in accordance with Section 4, PROVIDED, that at such time Lessee
shall have fully complied with all of the terms of the Lease and the
Participation Agreement or (b) 21 years less one day after the death of the last
survivor of all of the descendants of the grandparents of Xxxxx X. Xxxxxxxxxxx
living on the date of the earliest execution of this Trust Agreement by any
party hereto, but if this Trust Agreement and the trusts created hereby shall be
or become authorized under applicable Law to be valid for a period commencing on
the 21st anniversary of the death of such last survivor (or, without limiting
the generality of the foregoing, if legislation shall become effective providing
for the validity of this Trust Agreement and the trusts created hereby for a
period in gross exceeding the period for which this Trust Agreement and the
trusts created hereby are hereinabove stated to extend and be valid), then this
Trust Agreement and the trusts created hereby shall not terminate under this
clause (b) but shall extend to and continue in effect, but only if such
nontermination and extension shall then be valid under applicable Law, until the
day preceding such date as the same shall, under applicable Law, cease to be
valid; otherwise this Trust Agreement and the trusts created hereby shall
continue in full force and effect in accordance with the terms hereof. Except as
expressly set forth in Section 11.2, this Trust Agreement and the trusts created
hereby may not be revoked by Owner Participant.
11.2 TERMINATION AT OPTION OF THE OWNER PARTICIPANT. Notwithstanding
Section 11.1 hereof, this Agreement and trust created hereby shall terminate and
the Trust Estate shall be distributed to the Owner Participant, and this
Agreement shall be of no further force and effect, upon the election of the
Owner Participant by notice to the Owner Trustee, if such notice shall be
accompanied by the written agreement (in form and substance satisfactory to the
Owner Trustee) of the Owner Participant assuming all obligations of the Owner
Trustee under or contemplated by the Operative Agreements or incurred by it as
trustee hereunder and releasing the Owner Trustee therefrom; provided, however,
that such notice may be given only after the time the Lien of the Trust
Indenture is discharged under Section 10.01 of the Trust Indenture and after the
Lease shall no longer be in effect. Notwithstanding anything in this Trust
Agreement to the contrary, the Owner Participant shall not remove the Owner
Trustee without cause.
11.3 OWNER PARTICIPANT HAS NO LEGAL TITLE IN TRUST ESTATE. Owner
Participant shall not have legal title to any part of the Trust Estate. No
transfer, by operation of Law or otherwise, of any right, title and interest of
Owner Participant in and to the Trust Estate under this Trust Agreement shall
operate to terminate this Trust Agreement or the trusts under this Trust
Agreement or entitle any successors or transferees of Owner Participant to an
accounting or to the transfer of legal title to any part of the Trust Estate.
11.4 ASSIGNMENT, SALE, ETC. OF AIRCRAFT. Any assignment, sale,
transfer or other conveyance of the Aircraft by Owner Trustee made pursuant to
the terms of this Trust Agreement or of the Lease or the Participation Agreement
shall bind Owner Participant and shall be effective to transfer or convey all
right, title and interest of Owner Trustee and Owner Participant in and to the
Aircraft. No purchaser or other grantee shall be required to inquire as to the
authorization, necessity, expediency or regularity of such assignment, sale,
transfer or conveyance or as to the application of any sale or other proceeds
with respect thereto by Owner Trustee.
11.5 TRUST AGREEMENT FOR BENEFIT OF CERTAIN PARTIES ONLY. Except for
the terms of Section 10 of the Participation Agreement incorporated in Section 8
and except as otherwise provided in Sections 5.1, 6.7, 9, 10.1 and 11.1, nothing
in this Trust Agreement, whether express or implied, shall be construed to give
any person other than Owner Trustee and Owner Participant any legal or equitable
right, remedy or claim under or in respect of this Trust Agreement; and this
Trust Agreement shall be held to be for the sole and exclusive benefit of Owner
Trustee and Owner Participant.
11.6 CITIZENSHIP OF OWNER PARTICIPANT. Reserved.
11.7 NOTICES. Unless otherwise expressly permitted by the terms of
this Trust Agreement, all notices, requests, demands, authorizations,
directions, consents, waivers and other communications required or permitted to
be made, given, furnished or filed under this Trust Agreement shall be in
writing, shall refer specifically to this Trust Agreement and shall be
personally delivered, sent by telecopy, telex or other means of electronic
facsimile or telecommunication transmission, sent by registered mail or
certified mail, return receipt requested, postage prepaid, or sent by overnight
courier service, in each case to the respective telex, telecopy or other number
or address set forth for such party in Schedule 1 to the Participation
Agreement, or to such other telex, telecopy or other number or address as each
party hereto may hereafter specify by notice to the other parties hereto. Each
such notice, request, demand, authorization, direction, consent, waiver or other
communication shall be effective when received or, if made, given, furnished or
filed (a) by telecopy or other means of electronic facsimile or
telecommunication transmission, when confirmed, or (b) by registered or
certified mail, three Business Days after being deposited, properly addressed,
in the U.S. mail.
11.8 SEVERABILITY. If any provision of this Trust Agreement shall be
held invalid, illegal or unenforceable in any respect in any jurisdiction, then,
to the extent permitted by Law, (a) all other provisions hereof shall remain in
full force and effect in such jurisdiction and (b) such invalidity, illegality
or unenforceability shall not affect the validity, legality or enforceability of
such provision in any other jurisdiction. If, however, any Law pursuant to which
such provisions are held invalid, illegal or unenforceable may be waived, such
Law is hereby waived by the parties hereto to the full extent permitted, to the
end that this Trust Agreement shall be deemed to be a valid and binding
agreement in all respects, enforceable in accordance with its terms.
11.9 WAIVERS, ETC. No term or provision hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing entered
into in compliance with the terms of Section 10; and any waiver of the terms
hereof shall be effective only in the specific instance and for the specific
purpose given.
11.10 COUNTERPARTS. This Trust Agreement and any amendments, waivers,
consents or supplements hereto may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, and all of
which counterparts, taken together, shall constitute one and the same
instrument.
11.11 BINDING EFFECT, ETC. All covenants and agreements contained in
this Trust Agreement shall be binding upon, and inure to the benefit of, Owner
Trustee and its successors and assigns, and Owner Participant and its successors
and, to the extent permitted by Section 8, assigns. Any request, notice,
direction, consent, waiver or other instrument or action by Owner Participant
shall bind its successors and assigns.
11.12 HEADINGS; REFERENCES. The headings and the table of contents
used in this Trust Agreement are for convenience of reference only and shall not
define or limit any of the terms or provisions hereof and shall not in any way
affect the construction of, or be taken into consideration in interpreting, this
Trust Agreement.
11.13 GOVERNING LAW. THIS TRUST AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAWS OF THE STATE OF UTAH, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS.
[This space intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
METLIFE CAPITAL CREDIT L.P.
By _______________________________
Name:
Title:
FIRST SECURITY BANK, NATIONAL ASSOCIATION
By _______________________________
Name:
Title:
