Note to Exhibit 10.3
The following Trust Agreement is substantially identical in all material
respects to three additional Trust Agreements except as follows:
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Owner Participant Date Aircraft (Tail No.)
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NCC Charlie Company* September 10, 1998* N575ML*
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NCC Charlie Company September 10, 1998 N576ML
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General Electric Capital Corporation November 10, 1998 N577ML
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* Filed document
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TRUST AGREEMENT [N576ML]
Dated as of September 10, 1998
between
NCC CHARLIE COMPANY,
as Owner Participant
and
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
as Owner Trustee
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One Canadair Regional Jet Series 200 ER Aircraft
N576ML
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND TERMS..............................................1
Section 1.01 Definitions...........................................1
ARTICLE II AUTHORITY TO EXECUTE CERTAIN OPERATIVE AGREEMENTS;
DECLARATION OF TRUST...............................................2
Section 2.01 Authority to Execute Documents........................2
Section 2.02 Declaration of Trust..................................2
ARTICLE III ACCEPTANCE AND DELIVERY OF AIRCRAFT; ISSUANCE OF
EQUIPMENT NOTES; LEASE OF AIRCRAFT; REPLACEMENT....................3
Section 3.01 Authorization.........................................3
Section 3.02 Conditions Precedent..................................4
Section 3.03 Postponement of Delivery Date.........................4
Section 3.04 Authorization in Respect of a Replacement Airframe
or Replacement Engines................................4
Section 3.05 Trust Agreement Remaining in Full Force and Effect....5
Section 3.06 Authorization in Respect of Return of an Engine.......5
ARTICLE IV RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE TRUST ESTATE....................................6
Section 4.01 Distribution of Payments..............................6
(a) Payments to the Indenture Trustee.....................6
(b) Payments to the Owner Trustee; Other Parties..........6
(c) Excepted Payments.....................................7
(d) Certain Distributions to Owner Participant............7
Section 4.02 Method of Payments....................................7
ARTICLE V DUTIES OF THE OWNER TRUSTEE........................................8
Section 5.01 Notice of Event of Default............................8
Section 5.02 Action Upon Instructions..............................8
Section 5.03 Indemnification.......................................9
Section 5.04 No Duties Except as Specified in Trust Agreement or
Instructions..........................................9
Section 5.05 No Action Except Under Specified Documents or
Instructions.........................................10
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ARTICLE VI THE OWNER TRUSTEE................................................10
Section 6.01 Acceptance of Trusts and Duties....................10
Section 6.02 Absence of Certain Duties..........................10
Section 6.03 No Representations or Warranties as to Certain
Matters............................................11
Section 6.04 No Segregation of Monies Required; Investment
Thereof............................................12
Section 6.05 Reliance Upon Certificates, Counsel and Agents.....12
Section 6.06 Not Acting in Individual Capacity..................13
Section 6.07 Fees; Compensation.................................13
Section 6.08 Tax Returns........................................13
Section 6.09 Fixed Investment Trust.............................13
ARTICLE VII INDEMNIFICATION OF THE OWNER TRUSTEE
BY THE OWNER PARTICIPANT.........................................13
Section 7.01 The Owner Participant to Indemnify the Owner
Trustee............................................13
ARTICLE VIII [RESERVED].......................................................15
ARTICLE IX SUCCESSOR OWNER TRUSTEES; CO-TRUSTEES............................15
Section 9.01 Resignation of the Owner Trustee; Appointment of
Successor..........................................15
(b) Execution and Delivery of Documents, etc.......15
(c) Qualification..................................16
(d) Merger, etc....................................16
Section 9.02 Co-Trustees and Separate Trustees..................16
ARTICLE X SUPPLEMENTS AND AMENDMENTS TO TRUST AGREEMENT
AND OTHER DOCUMENTS..............................................18
Section 10.01 Supplements and Amendments.........................18
(a) Supplements and Amend-ments....................18
(b) Delivery of Amendments and Supplements to
Certain Parties................................18
Section 10.02 Discretion as to Execution of Documents............18
Section 10.03 Absence of Requirements as to Form.................19
Section 10.04 Distribution of Documents..........................19
ARTICLE XI MISCELLANEOUS....................................................19
Section 11.01 Termination of Trust Agreement.....................19
Section 11.02 The Owner Participant Has No Legal Title in Trust
Estate.............................................20
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Section 11.03 Assignment, Sale, etc., of Aircraft................20
Section 11.04 Trust Agreement for Benefit of Certain Parties
Only...............................................20
Section 11.05 Notices............................................20
Section 11.06 Severability.......................................20
Section 11.07 Waivers, etc.......................................20
Section 11.08 Counterparts.......................................21
Section 11.09 Binding Effect, etc................................21
Section 11.10 Headings; References...............................21
Section 11.11 GOVERNING LAW......................................21
Section 11.12 Administration of Trust............................22
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TRUST AGREEMENT [N576ML]
This TRUST AGREEMENT [N576ML], dated as of September 10, 1998
between NCC CHARLIE COMPANY, a Delaware corporation (together with its
successors and permitted assigns, the "Owner Participant"), and FIRST UNION
TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, in its
individual capacity only as expressly stated herein and otherwise not in its
individual capacity but solely as trustee hereunder (herein in such capacity
with its permitted successors and assigns called the "Owner Trustee").
W I T N E S S E T H :
ARTICLE I
DEFINITIONS AND TERMS
Section 1.01 Definitions. Unless the context shall otherwise require
and except as contained in this Section 1.01, the capitalized terms used herein
shall have the respective meanings assigned thereto in the Lease (as hereinafter
defined) for all purposes hereof. All definitions contained in this Section 1.01
shall be equally applicable to both the singular and plural forms of the terms
defined. For all purposes of this Trust Agreement the following terms shall have
the following meanings:
"Excepted Payments" has the meaning given to such term in the Lease.
"First Union" means First Union Trust Company, National Association,
a national banking association.
"Lease" means Lease Agreement [N576ML] dated as of September 10,
1998, between the Lessor and the Lessee, as the same may be modified, amended or
supplemented from time to time. The term "Lease" shall also include each Lease
Supplement entered into pursuant to the terms of the Lease.
"Lessee" means Midway Airlines Corporation, a Delaware corporation,
and its successors and permitted assigns, as the lessee under the Lease.
"Owner Participant" means the Person identified as such in the
introduction hereto.
"Owner Trustee" means the Person identified as such in the
introduction hereto.
"Participation Agreement" means Participation Agreement [N576ML],
dated as of September 10, 1998, among the Lessee, the Owner Participant, the
Lessor, the Indenture Trustee,
the Pass Through Trustee and the Subordination Agent, as the same may be
amended, modified or supplemented from time to time.
"Trust Agreement" means this Trust Agreement [N576ML] dated as of
September 10, 1998 between First Union and the Owner Participant, as the same
may be amended, modified or supplemented from time to time.
"Trust Estate" has the meaning given to such term in the
Participation Agreement.
"Trust Indenture" means Trust Indenture and Security Agreement
[N576ML], dated as of September 10, 1998, between the Owner Trustee and the
Indenture Trustee, as the same may be amended, modified, or supplemented from
time to time. The term "Trust Indenture" shall also include each Indenture
Supplement entered into pursuant to the terms of the Trust Indenture.
ARTICLE II
AUTHORITY TO EXECUTE CERTAIN OPERATIVE AGREEMENTS;
DECLARATION OF TRUST
Section 2.01 Authority to Execute Documents. The Owner Participant
hereby authorizes and directs the Owner Trustee (i) to execute and deliver the
Participation Agreement, the Lease, the Lease Supplement covering the Aircraft,
the Trust Indenture, the Indenture Supplement covering the Aircraft, the
Equipment Notes and any other agreements, instruments or documents, to which the
Owner Trustee is a party in the respective forms thereof in which delivered from
time to time by the Owner Participant to the Owner Trustee for execution and
delivery and (ii) subject to the terms hereof, to exercise its rights (upon
instructions received from the Owner Participant) and perform its duties under
the documents referred to in this Section in accordance with the terms thereof.
Section 2.02 Declaration of Trust. First Union hereby declares that
it will hold the Trust Estate upon the trusts hereinafter set forth for the use
and benefit of the Owner Participant, subject, however, to the provisions of and
the Lien created under the Trust Indenture.
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ARTICLE III
ACCEPTANCE AND DELIVERY OF AIRCRAFT; ISSUANCE OF
EQUIPMENT NOTES; LEASE OF AIRCRAFT; REPLACEMENT
Section 3.01 Authorization. (a) The Owner Participant hereby
authorizes and directs the Owner Trustee to, and the Owner Trustee agrees for
the benefit of the Owner Participant that, on the Delivery Date it will, subject
to due compliance with the terms of Section 3.02 hereof:
(i) authorize a representative or representatives of the Owner
Trustee to accept delivery of the Aircraft pursuant to the
Participation Agreement;
(ii) execute and deliver each of the Operative Agreements to
which the Owner Trustee is to be a party;
(iii) purchase the Aircraft pursuant to the Participation
Agreement;
(iv) pay an amount equal to Lessor's Cost to, or at the
direction of, the Lessee pursuant to the Participation Agreement in
consideration of the sale of the Aircraft to the Owner Trustee
thereunder;
(v) issue to the Loan Participants one or more Equipment Notes
in respect of the Aircraft in the amounts and otherwise as provided
in the Participation Agreement and the Trust Indenture;
(vi) execute and deliver the financing statements contemplated
by Sections 3.01(m) and (n) of the Participation Agreement;
(vii) make application to the FAA for registration of the
Aircraft in the name of the Owner Trustee;
(viii) take such other action as may reasonably be required of
the Owner Trustee hereunder or under the Participation Agreement,
the Trust Indenture or the Lease to effectuate the transactions
contemplated thereby; and
(ix) execute and deliver all such other instruments, documents
or certificates and take all such other actions in accordance with
the directions of the Owner Participant, as the Owner Participant
may reasonably deem necessary or advisable in connection with the
transactions contemplated hereby and by the other Operative
Agreements.
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(b) The Owner Participant hereby authorizes and directs the
Owner Trustee to, and the Owner Trustee agrees for the benefit of
the Owner Participant that it will:
(i) immediately after the delivery of the Aircraft to
the Owner Trustee, cause the Aircraft to be leased to Lessee under
the Lease; and
(ii) execute and deliver a Lease Supplement and an
Indenture Supplement, in each case covering the Aircraft.
Section 3.02 Conditions Precedent. The right and obligation of the
Owner Trustee to take the action required by Section 3.01 hereof shall be
subject to the following conditions precedent:
(a) the Owner Participant shall have made the full amount of
its Commitment with respect to the Aircraft available to the Owner
Trustee, in immediately available funds, in accordance with Section
2.01(c) of the Participation Agreement; and
(b) the terms and conditions of Section 3.01 of the
Participation Agreement shall have been waived by the Owner
Participant or complied with in a manner satisfactory to the Owner
Participant. The Owner Participant shall, by instructing Owner
Trustee to release the full amount of its Commitment then held by
Owner Trustee as provided in Section 2.01 of the Participation
Agreement, be deemed to have found satisfactory to it, or waived,
all such conditions precedent.
Section 3.03 Postponement of Delivery Date. The Owner Trustee, upon
instructions from the Owner Participant, shall take all action specified in
Section 2.01(e) of the Participation Agreement as action to be taken by the
Owner Trustee.
Section 3.04 Authorization in Respect of a Replacement Airframe or
Replacement Engines. The Owner Trustee agrees for the benefit of the Owner
Participant that, upon the receipt by a Responsible Officer of Owner Trustee of
an authorization and direction from the Owner Participant, it will, in the event
of a Replacement Airframe or Replacement Engines, if any, being substituted
pursuant to Section 8(a)(i) of the Lease, or a Replacement Engine being
substituted pursuant to Section 7(e) of the Lease, subject to due compliance
with the terms of Sections 8(d) and 7(e) of the Lease, as the case may be:
(a) to the extent not previously accomplished by a prior
authorization, authorize a representative or representatives of the
Owner Trustee to accept delivery of the Replacement Airframe or
Replacement Engines, if any, or the Replacement Engine;
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(b) accept from Lessee or other vendor of the Replacement
Airframe or Replacement Engines, if any, or the Replacement Engine,
a xxxx of sale or bills of sale (if tendered) and the invoice, if
any, with respect to the Replacement Airframe and Replacement
Engines, if any, or the Replacement Engine being furnished pursuant
to Section 8(a)(ii) or 7(e) of the Lease;
(c) in the case of a Replacement Airframe, make application to
the FAA (or the Aeronautical Authority of any jurisdiction other
than the United States of America in which the Replacement Airframe
is then registered in accordance with the terms of the Lease) for
registration in the name of the Owner Trustee of the Aircraft of
which such Replacement Airframe is a part;
(d) execute and deliver a Lease Supplement and an Indenture
Supplement covering (i) the Aircraft of which such Replacement
Airframe is part of and, (ii) such Replacement Engine, as the case
may be;
(e) transfer its interest in (without recourse except as to
obligations in respect of Lessor's Liens) and to the Airframe and
Engines (if any) or the Engine being replaced to or at the direction
of Lessee;
(f) request in writing that the Indenture Trustee execute and
deliver to Lessee appropriate instruments to release the Airframe or
Engines (or engines) being replaced from the Lien created under the
Trust Indenture and release the Assignment of Warranties (solely
with respect to such replaced Airframe or Engines, if any) from the
assignment and pledge under the Trust Indenture; and
(g) take such further action as may be contemplated by
Sections 8(d) or 7(e) of the Lease, as the case may be.
Section 3.05 Trust Agreement Remaining in Full Force and Effect. In
the event of the substitution of a Replacement Airframe for the Airframe or the
substitution of a Replacement Engine for any Engine or engine all provisions of
this Trust Agreement relating to such replaced Airframe or Engine or engine
shall be applicable to such Replacement Airframe or Replacement Engine, with the
same force and effect as if such Replacement Airframe or Replacement Engine were
the same airframe, engine or propeller as the Airframe or Engine being replaced
but for the Event of Loss with respect to such Airframe or Engine.
Section 3.06 Authorization in Respect of Return of an Engine. The
Owner Trustee agrees for the benefit of the Owner Participant that, upon the
receipt by a Responsible Officer of the Owner Trustee of an authorization and
direction from the Owner Participant, it will, in the event of an engine being
transferred to the Owner Trustee pursuant to Section 12(b) of the Lease, subject
to due compliance with the terms of such Section 12(b):
5
(a) accept from Lessee or other vendor the xxxx of sale
contemplated by such Section 12(b) with respect to such engine being
transferred to the Owner Trustee;
(b) transfer its right, title and interest in (without
recourse or warranty except a warranty against Lessor's Liens) and
to an Engine to or at the direction of Lessee as contemplated by
such Section 12(b); and
(c) request in writing that the Indenture Trustee execute and
deliver to Lessee appropriate instruments to release the Engine
being transferred to Lessee pursuant to such Section 12(b) from the
Lien of the Trust Indenture and to release Assignment of Warranties
(solely with respect to such Engine) from the assignment and pledge
under the Trust Indenture.
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE TRUST ESTATE
Section 4.01 Distribution of Payments. (a) Payments to the Indenture
Trustee. Until the Trust Indenture shall have been terminated pursuant to
Section 14.01 thereof or until the Aircraft shall have been released from the
Lien created under the Trust Indenture pursuant to the terms thereof, all Basic
Rent, Supplemental Rent, insurance proceeds and requisition, indemnity or other
payments of any kind included in the Trust Estate (it being understood that
Excepted Payments are not part of the Trust Estate) shall be payable directly to
the Indenture Trustee (and if any of the same are received by the Owner Trustee
shall upon receipt be paid over to the Indenture Trustee without deduction,
set-off or adjustment of any kind) for distribution in accordance with the
provisions of Article V of the Trust Indenture; provided, that any payments
received by Owner Trustee from (i) Lessee with respect to Owner Trustee's fees
and disbursements or (ii) Owner Participant pursuant to Section 7.01 shall not
be paid over to Indenture Trustee but shall be retained by Owner Trustee and
applied toward the purpose for which such payments were made.
(b) Payments to the Owner Trustee; Other Parties. Any payment
of the type required to be paid to the Indenture Trustee referred to
in paragraph (a) of this Section 4.01 received by the Owner Trustee
after the Trust Indenture shall have been terminated, any payment
received by the Owner Trustee pursuant to the provisions of Article
V of the Trust Indenture (other than Excepted Payments) and any
other amounts received as part of the Trust Estate and for the
application or distribution of which no provision is made herein,
shall be distributed forthwith upon receipt by the Owner Trustee in
the following order of priority: first, so much of such payment as
shall be required to pay or reimburse the Owner Trustee for any fees
or expenses not otherwise paid or reimbursed as to
6
which the Owner Trustee is entitled to be so paid or reimbursed
pursuant to the provisions hereof or of the Trust Indenture shall be
retained by the Owner Trustee; and second, the balance, if any,
shall be paid to the Owner Participant.
(c) Excepted Payments. Any Excepted Payments received by the
Owner Trustee shall be paid by the Owner Trustee to the Person to
whom such Excepted Payments are payable under the provisions of the
Tax Indemnity Agreement, the Participation Agreement, the Lease or
any other Operative Agreement.
(d) Certain Distributions to Owner Participant. All amounts
from time to time distributable 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 V of the Trust Indenture.
Section 4.02 Method of Payments. The Owner Trustee shall make
distributions or cause distributions to be made to (i) the Owner Participant
pursuant to this Article IV by transferring by wire transfer in immediately
available funds the amount to be distributed to such account or accounts of the
Owner Participant as it may designate from time to time by written notice to the
Owner Trustee (and the Owner Trustee shall use reasonable efforts to cause such
funds to be transferred by wire transfer on the same day as received, but in any
case not later than the next succeeding Business Day), and (ii) the Indenture
Trustee pursuant to this Article IV by paying the amount to be distributed to
the Indenture Trustee in the manner specified in the Trust Indenture; provided,
however, that the Owner Trustee shall use its best efforts to invest overnight,
for the benefit of the Owner Participant, in investments that would be permitted
by Section 15 of the Lease (but only to the extent such investments are
available and, if such investments are not available, then in such other
investments available to the Owner Trustee which, after consultation with the
Owner Participant, the Owner Participant shall direct), all funds not
transferred by the Owner Trustee by wire transfer on the same day as they were
received. Notwithstanding the foregoing but subject always to the provisions of
and Lien created by the Trust Indenture, the Owner Trustee will, if so requested
by the Owner Participant by written notice, pay any and all amounts payable by
the Owner Trustee hereunder to the Owner Participant either (i) by crediting, or
causing the Indenture Trustee to credit, such amount or amounts to an account or
accounts maintained by the Owner Participant as it may designate from time to
time by written notice to the Owner Trustee, in immediately available funds, or
(ii) by mailing, or causing the Indenture Trustee to mail, an official bank
check or checks in such amount or amounts payable to the Owner Participant at
such address as the Owner Participant shall have designated in writing to the
Owner Trustee.
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ARTICLE V
DUTIES OF THE OWNER TRUSTEE
Section 5.01 Notice of Event of Default. If the Owner Trustee shall
have knowledge of a Default or an Event of Default or an Indenture Default or
Indenture Event of Default, the Owner Trustee shall give to the Owner
Participant and the Lessee prompt telephonic or telecopied notice thereof
followed by prompt confirmation thereof by certified mail, postage prepaid.
Subject to the terms of Section 5.03, the Owner Trustee shall take such action
or shall refrain from taking such action, not inconsistent with the provisions
of the Operative Agreements, with respect to such Default, Event of Default,
Indenture Default or Indenture Event of Default as the Owner Trustee shall be
directed in writing by the Owner Participant. For all purposes of this Trust
Agreement and the Lease, the Owner Trustee shall not be deemed to have knowledge
of a Default, an Event of Default, an Indenture Default or an Indenture Event of
Default unless notified in writing thereof in the manner and at the address set
forth in Section 11.05 or unless an officer in the Corporate Trust
Administration Department who has responsibility for, or familiarity with, the
transactions contemplated hereunder, under the Participation Agreement and under
the Trust Indenture or any Vice President in the Corporate Trust Administration
Department of the Owner Trustee has actual knowledge thereof.
Section 5.02 Action Upon Instructions. Subject in all respects to
the terms of Sections 5.01 and 5.03 and to the terms of the other Operative
Agreements, upon the written instructions at any time and from time to time of
the Owner Participant, the Owner Trustee will take such of the following actions
as may be specified in such instructions: (i) give such notice or direction or
exercise such right, remedy or power hereunder or under any of the Operative
Agreements to which the Owner Trustee is a party, or in respect of all or any
part of the Trust Estate, as shall be specified in such instructions; (ii) take
such action to preserve or protect the Trust Estate (including the discharge of
any Liens or encumbrances) as may be specified in such instructions; (iii)
approve as satisfactory to it all matters required by the terms of the Lease to
be satisfactory to the Owner Trustee, it being understood that without written
instructions of the Owner Participant, the Owner Trustee shall not approve any
such matter as satisfactory to it; (iv) after the expiration or earlier
termination of the Lease, convey all of the 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 action with
respect to, the Aircraft on such terms as shall be set forth in such
instructions or deliver the Aircraft to the Owner Participant in accordance with
such instructions; and (v) take or refrain from taking such other action or
actions as may be specified in such instructions. In the event that the Owner
Trustee is unsure of the application of any provision of this Trust Agreement or
any other agreement relating to the transactions contemplated hereby, the Owner
Trustee may request and rely upon instructions of the Owner Participant.
8
Section 5.03 Indemnification. The Owner Trustee shall not be
required to take or refrain from taking any action under Section 5.01 (other
than the giving of notices referred to therein) or 5.02 unless the Owner Trustee
shall have been indemnified by the Owner Participant, in manner and form
satisfactory to the Owner Trustee, against any liability, cost or expense
(including reasonable counsel fees and disbursements) which may be incurred in
connection therewith; and, if the Owner Participant shall have directed the
Owner Trustee to take or refrain from taking any such action, the Owner
Participant agrees to furnish such indemnity as shall be required and in
addition to pay the reasonable fees and charges of the Owner Trustee for the
services performed or to be performed by it pursuant to such direction. The
Owner Trustee shall not be required to take any action under Section 5.01 or
5.02 if the Owner Trustee shall reasonably determine, or shall have been advised
by counsel, that such action is contrary to the terms of any of the Operative
Agreements to which the Owner Trustee is a party, or is otherwise contrary to
Applicable Law.
Section 5.04 No Duties Except as Specified in Trust Agreement or
Instructions. The 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 otherwise to take or refrain from taking any action
under, or in connection with any of the Operative Agreements to which the Owner
Trustee is a party, except as expressly required by the terms of any of the
Operative Agreements to which the Owner Trustee is a party, or (to the extent
not inconsistent with the provisions of the Trust Indenture) as expressly
provided by the terms hereof or in written instructions from the Owner
Participant received pursuant to the terms of Section 5.01 or 5.02, and no
implied duties or obligations shall be read into this Trust Agreement or any of
the Operative Agreements to which the Owner Trustee is a party against the Owner
Trustee. The Owner Trustee nevertheless agrees that it will, in its individual
capacity and at its own cost and expense (but without any right of indemnity in
respect of any such cost or expense under Section 7.01) promptly take such
action as may be necessary duly to discharge and satisfy in full (i) all
Lessor's Liens attributable to the Owner Trustee in its individual capacity,
(ii) any Liens (other than Lessor's Liens attributable to it in its individual
capacity) created as a result of its breach of any of its obligations under this
Trust Agreement (subject to the limitations on the liability of the Owner
Trustee in its individual capacity set forth in Section 6.01) on any part of the
Trust Estate, or on any properties of the Owner Trustee assigned, pledged or
mortgaged as part of the Trust Estate, which arise from acts of the Owner
Trustee in its individual capacity, except the Lien created under the Trust
Indenture, the rights of Lessee under the Lease and the rights of the Owner
Participant hereunder, and (iii) any other Liens or encumbrances attributable to
the Owner Trustee in its individual capacity on any part of the Trust Estate
which result from claims against the Owner Trustee in its individual capacity
unrelated to the ownership of the Aircraft, the administration of the Trust
Estate or the transactions contemplated by the Operative Agreements.
9
Section 5.05 No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall have no power or authority to, and the
Owner Trustee 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
(i) as expressly required by the terms of any of the Operative Agreements to
which the Owner Trustee is a party, (ii) as expressly provided by the terms
hereof, or (iii) as expressly provided in written instructions from the Owner
Participant pursuant to Section 5.01 or 5.02, but subject always to the
provisions of the Lien created by the Trust Indenture.
ARTICLE VI
THE OWNER TRUSTEE
Section 6.01 Acceptance of Trusts and Duties. First Union accepts
the trusts hereby created and agrees to perform the same but only upon the terms
hereof applicable to it. First Union also agrees to receive and disburse all
monies received by it constituting part of the Trust Estate upon the terms
hereof. First Union shall not be answerable or accountable under any
circumstances, except for (i) its own willful misconduct or gross negligence,
(ii) its performance of the terms of the last sentence of Section 5.04, (iii)
its failure to use ordinary care in receiving or disbursing funds or to comply
with the first sentence of Section 6.08, (iv) liabilities that may result from
the inaccuracy of any representation or warranty of the Owner Trustee in its
individual capacity (or from the failure by the Owner Trustee in its individual
capacity to perform any covenant made in its individual capacity) in Section
6.03 or in any of the Operative Agreements to which the Owner Trustee is a
party, (v) taxes, fees or other charges on, based on or measured by any fees,
commissions or other compensation received by First Union as compensation for
its services rendered as the Owner Trustee, (vi) its failure (in its individual
capacity or as Owner Trustee) to use ordinary care in connection with its
obligations to invest funds pursuant to Section 15 of the Lease or Section 4.02
hereof and (vii) for any liability on the part of the Owner Trustee arising out
of its negligence or willful or negligent misconduct in connection with its
obligations under Section 5.01, 6.08 or 9.02 hereof or Section 3.05 of the Trust
Indenture; provided, however, that the failure to act or perform in the absence
of instructions after the Owner Trustee has requested instructions from the
Owner Participant pursuant to the last sentence of Section 5.02 shall not
constitute willful misconduct or gross negligence for purposes of clause (i) of
this Section 6.01.
Section 6.02 Absence of Certain Duties. Except in accordance with
written instructions furnished pursuant to Sections 5.01 and 5.02 and except as
provided in, and without limiting the generality of, Sections 3.01, 5.04 and
5.05 and the last sentence of Section 9.01(b), the Owner Trustee shall have no
duty (i) to see to any registration of the Aircraft or any recording or filing
of the Lease, this Trust Agreement, the Trust Indenture, any financing or
continuation statement or of any supplement to any thereof or to see to the
maintenance of any such registration, rerecording or refiling, except that of
Owner Trustee 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 or any successor provisions, and that the
Owner Trustee shall upon written request furnished by Lessee take such action as
may be required of the
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Owner Trustee to maintain the registration of the Aircraft in the name of the
Owner Trustee under the Act or, to the extent the Aircraft is registered in a
country other than the United States of America pursuant to Section 4.02 of the
Participation Agreement, other Applicable Law, and to the extent that
information for that purpose is supplied by Lessee pursuant to any of the
Operative Agreements, complete and timely submit any and all reports relating to
the Aircraft which 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, (iii) 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, assessed or levied
against any part of the Trust Estate except as provided by Section 5.04 hereof
or Section 5.03(b) of the Participation Agreement, (iv) to confirm or verify any
financial statements of Lessee or (v) to inspect the Aircraft or the books and
records of Lessee with respect to the Aircraft. Notwithstanding the foregoing,
the Owner Trustee will furnish to Indenture Trustee 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.
Section 6.03 No Representations or Warranties as to Certain Matters.
THE OWNER TRUSTEE IN ITS INDIVIDUAL CAPACITY OR AS THE OWNER TRUSTEE DOES NOT
MAKE AND SHALL NOT BE DEEMED TO HAVE MADE (a) ANY REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, AS TO THE TITLE, VALUE, CONDITION, DESIGN, OPERATION,
MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE OF THE AIRCRAFT, ANY
ENGINE THEREOF, ABSENCE OF LATENT OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE)
OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE AIRCRAFT OR ANY
ENGINE WHATSOEVER, except that the Owner Trustee in its individual capacity
warrants that on the Delivery Date the Owner Trustee shall have received and
shall hold whatever title to the Aircraft was conveyed to it by Lessee free and
clear of Lessor's Liens attributable to the Owner Trustee in its individual
capacity, shall be in compliance with the last sentence of Section 5.04 hereof
and that the Aircraft shall during the Lease Term be free of Lessor's Liens
attributable to it in its individual capacity, or (b) any representation or
warranty as to the validity, legality or enforceability of this Trust Agreement
or any other Operative Agreement to which the Owner Trustee 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 as a
representation by the Owner Trustee in its individual capacity and except that
the Owner Trustee in its individual capacity 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 the due
authorization, execution and delivery of the Trust Agreement by the Owner
Participant) the other Operative Agreements to which the Owner Trustee is a
party have been (or at the time of execution and delivery of any such instrument
11
by the Owner Trustee hereunder 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 the Owner Trustee and that this Trust
Agreement has been duly authorized, executed and delivered by First Union and
constitutes the legal, valid and binding obligation of First Union enforceable
against it in accordance with its terms, except as such terms may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally and by general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
Section 6.04 No Segregation of Monies Required; Investment Thereof.
Monies received by the Owner Trustee hereunder need not be segregated in any
manner except to the extent required by Applicable Law, and may be deposited
under such general conditions as may be prescribed by Applicable Law, and shall
be invested as provided in Section 4.02 hereof or Section 15 of the Lease.
Section 6.05 Reliance Upon Certificates, Counsel and Agents. The
Owner Trustee shall incur no liability to anyone in acting in reliance upon 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
herein, any request, direction, order or demand of the Owner Participant, Lessee
or the Indenture Trustee mentioned herein or in any of the other Operative
Agreements to which the Owner Trustee is a party shall be sufficiently evidenced
by written instruments signed by a person purporting to be an officer of the
Owner Participant, Lessee or the Indenture Trustee, as the case may be. The
Owner Trustee may accept a copy of a resolution of the Board of Directors of
Lessee, the Owner Participant or the Indenture Trustee, as the case may be,
certified by the Secretary or an Assistant Secretary of Lessee, the Owner
Participant or the Indenture Trustee, as the case may be, as duly adopted and in
full force and effect, as conclusive evidence that such resolution has been duly
adopted by said Board 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 herein, the Owner Trustee may, absent actual knowledge to the
contrary, for all purposes hereof rely on a certificate signed by an officer of
Lessee, the Owner Participant or the Indenture Trustee, as the case may be, as
to such fact or matter, and such certificate shall constitute full protection to
the Owner Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon.
In the administration of the trusts hereunder, the Owner Trustee may
exercise its powers and perform its duties hereunder directly or through agents
or attorneys and the Owner Trustee shall not be liable for the default or
misconduct of any agents or attorneys selected by it with reasonable care. In
the administration of the trusts hereunder, the Owner Trustee may consult with
counsel, accountants and other skilled persons and the 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 selected by it with reasonable care.
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Section 6.06 Not Acting in Individual Capacity. In acting hereunder,
the Owner Trustee acts solely as trustee and not in its individual capacity
except as otherwise expressly provided herein; and, except as may be otherwise
expressly provided in this Trust Agreement, including without limitation,
Section 6.01, the Lease, the Participation Agreement or the Trust Indenture, all
Persons having any claim against the Owner Trustee by reason of the transactions
contemplated hereby shall look only to the Trust Estate for payment or
satisfaction thereof.
Section 6.07 Fees; Compensation. Except as provided in Section 5.03
or 7.01, the Owner Trustee agrees that it shall have no right against the Owner
Participant or the Trust Estate for any fee as compensation for its services
hereunder.
Section 6.08 Tax Returns. The Owner Trustee shall be responsible for
the keeping of all appropriate books and records relating to the receipt and
disbursement by it of all monies under this Trust Agreement or any agreement
contemplated hereby. The Owner Trustee shall be responsible for causing to be
prepared and filed, at Lessee's expense, all income tax returns required to be
filed with respect to the trust created hereby as requested by the Owner
Participant and shall execute and file such returns as directed by the Owner
Participant.
Section 6.09 Fixed Investment Trust. Notwithstanding anything herein
to the contrary, the Owner Trustee shall not be authorized and shall have no
power to "vary the investment" of the Owner Participant within the meaning of
section 301.7701-4(c) of the Treasury Regulations.
ARTICLE VII
INDEMNIFICATION OF THE OWNER TRUSTEE
BY THE OWNER PARTICIPANT
Section 7.01 The Owner Participant to Indemnify the Owner Trustee.
The Owner Participant hereby agrees, whether or not any of the transactions
contemplated hereby shall be consummated, to assume liability for, and does
hereby indemnify, protect, save, defend and hold harmless the Owner Trustee in
its individual capacity, and its successors, assigns (but not security assigns),
directors, officers, representatives, agents, employees and servants, from and
against any and all liabilities, obligations, losses, damages, penalties, taxes
(excluding any taxes payable by the Owner Trustee on or measured by any
compensation received by the Owner Trustee for its services hereunder), claims,
actions, suits, costs, expenses or disbursements (including, without limitation,
reasonable legal fees, but excluding internal costs and expenses such as
salaries and overhead) and expenses of any kind and nature whatsoever which may
be imposed on, incurred by or asserted against the Owner Trustee in its
individual capacity (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
13
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
Airframe, any Engine or any Part of the foregoing (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 the Owner Trustee hereunder, except (a) in the case of willful misconduct or
gross negligence on the part of the Owner Trustee either as trustee or in its
individual capacity in the performance or nonperformance of its duties hereunder
or under any of the other Operative Agreements to which it is a party or (b)
those resulting from the inaccuracy of any representation or warranty of the
Owner Trustee in its individual capacity (or from the failure of the Owner
Trustee in its individual capacity to perform any covenant) in Section 6.03, or
in any of the Operative Agreements, or (c) those arising or resulting from any
of the matters described in the last sentence of Section 6.01, or (d) those
resulting from its failure to perform the terms of the last sentence of Section
5.04 hereof or from its failure to use ordinary care in the receipt and
disbursement of funds or in connection with its obligation to invest funds
pursuant to Section 15 of the Lease or Section 4.02 hereof or in compliance with
the first Section of Section 6.08, 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 5.01, 6.08 or 9.02 hereof or
Section 3.05 of the Trust Indenture, or (f) those arising under any
circumstances or upon any terms where Lessee would not have been required to
indemnify Owner Trustee, in its individual capacity, pursuant to Section 6.01 or
7.01 of the Participation Agreement; provided, that before asserting its right
to indemnification, if any, pursuant to this Section 7.01, Owner Trustee shall
first demand its corresponding right to indemnification pursuant to Section 6.01
or 7.01 of the Participation Agreement (but need not exhaust any or all remedies
available thereunder). The indemnities contained in this Section 7.01 extend to
the Owner Trustee only in its individual capacity and shall not be construed as
indemnities of the Indenture Estate or the Trust Estate. The indemnities
contained in this Section 7.01 shall survive the termination of this Trust
Agreement and the resignation or removal of the Owner Trustee. In addition, if
necessary, the Owner Trustee shall be entitled to indemnification from the Trust
Estate, subject however to the provisions of Section 4.01 hereof and the Lien
created under the Trust Indenture, for any liability, obligation, loss, damage,
penalty, tax, claim, action, suit, cost, expense or disbursement indemnified
against pursuant to this Section 7.01 to the extent not reimbursed by Lessee,
the Owner Participant or others, but without releasing any of them from their
respective agreements of reimbursement.
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ARTICLE VIII
[RESERVED]
ARTICLE IX
SUCCESSOR OWNER TRUSTEES; CO-TRUSTEES
Section 9.01 Resignation of the Owner Trustee; Appointment of
Successor. Resignation or Removal. (a) The Owner Trustee or any successor Owner
Trustee (i) shall resign if required to do so pursuant to Section 5.02(b) of the
Participation Agreement and (ii) may resign at any time without cause by giving
at least 60 days prior written notice to the Owner Participant, the Indenture
Trustee and Lessee, such resignation to be effective upon the acceptance of
appointment by the successor Owner Trustee under Section 9.01(b). In addition,
the Owner Participant may at any time remove the Owner Trustee, or revoke the
trusts created by this Trust Agreement, in either case with or without cause by
a notice in writing delivered to the Owner Trustee, the Indenture Trustee and
Lessee. Any such removal shall be effective upon the acceptance of appointment
by the successor Owner Trustee under Section 9.01(b). In the case of the
resignation or removal of the Owner Trustee, the Owner Participant may appoint a
successor Owner Trustee by an instrument in writing. If a successor Owner
Trustee shall not have been appointed within 30 days after such notice of
resignation or removal, the Owner Trustee or the Indenture Trustee 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.
(b) 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 Indenture Trustee, an instrument accepting such appointment and
assuming the obligations of Owner Trustee, in its individual
capacity and as Owner Trustee, under the Operative Agreements to
which Owner Trustee is a party, 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 trust hereunder with like effect as
if originally named the Owner Trustee herein; 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
15
held by such predecessor Owner Trustee upon the trusts herein
expressed. Upon the appointment of any successor Owner Trustee
hereunder, the predecessor Owner Trustee will complete, execute and
deliver to the successor Owner Trustee such documents as are
necessary 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.
(c) Qualification. Any successor Owner Trustee, however
appointed, shall be a Citizen of the United States, shall be
qualified to act as a trustee in Delaware (if the trust created
hereby is to remain in such state) and shall also be a bank or trust
company organized under the laws of the United States of America 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 the Owner Trustee
hereunder upon reasonable and customary terms.
(d) Merger, etc. Any corporation into which the Owner Trustee
may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any
corporation to which substantially all the corporate trust business
of the Owner Trustee may be transferred, shall, subject to the terms
of Section 9.01(c), be the Owner Trustee hereunder without further
act; provided that such corporation shall not also be the Indenture
Trustee.
Section 9.02 Co-Trustees and Separate Trustees. If at any time or
times it shall be necessary or prudent in order to conform to any Applicable Law
of any jurisdiction in which all or any part of the Trust Estate is located, or
the Owner Trustee shall be advised by counsel that it is so necessary or prudent
in the interest of the Owner Participant or the Owner Trustee, or the Owner
Trustee shall have been directed to do so by the Owner Participant, the Owner
Trustee and the 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 and all
of which shall be a Citizen of the United States) approved by the Owner Trustee
and the Owner Participant, either to act as co-trustee or co-trustees, jointly
with the Owner Trustee, or to act as separate trustee or trustees hereunder (any
such co-trustee or separate trustee being herein sometimes referred to as an
"additional trustee"). In the event (i) the 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 the Owner Trustee so to do, or (ii)
an Indenture Event of Default not arising from an Event of Default shall occur
and be continuing, the Owner Trustee may act under the foregoing provisions of
this Section 9.02 without the concurrence of the Owner Participant; and the
Owner Participant hereby appoints the Owner Trustee its agent and
attorney-in-fact to act for it under the foregoing provisions of this Section
9.02 in either of such contingencies.
16
Every additional trustee hereunder shall, to the extent permitted by
Applicable Law, be appointed and act, and the Owner Trustee and its successors
shall act, subject to the following provisions and conditions:
(a) all powers, duties, obligations and rights conferred upon
the Owner Trustee in respect of the custody, control and management
of monies, the Aircraft or documents authorized to be delivered
hereunder or under the Participation Agreement shall be exercised
solely by the corporation designated as the Owner Trustee in the
first paragraph of this Trust Agreement, or its successors as the
Owner Trustee hereunder;
(b) all other rights, powers, duties and obligations conferred
or imposed upon the Owner Trustee and any limitations thereon shall
be conferred or imposed upon and exercised or performed by the
corporation designated as the Owner Trustee in the first paragraph
of this Trust Agreement or its successors as the Owner Trustee, and
such additional trustee or trustees jointly, except to the extent
that under any Applicable Law of any jurisdiction in which any
particular act or acts are to be performed (including the holding of
title to the Trust Estate), the 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 or trustees;
(c) no power given to, or which it is provided hereby may be
exercised by, any such additional trustee or trustees shall be
exercised hereunder by such additional trustee or trustees, except
jointly with, or with the consent in writing of, the corporation
designed as the Owner Trustee in this Trust Agreement or its
successor as the Owner Trustee, anything herein contained to the
contrary notwithstanding;
(d) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder;
(e) the Owner Participant, at any time, by an instrument in
writing may remove any such additional trustee. In the event that
the Owner Participant shall not have joined in the execution of any
such instrument within ten days after the receipt of a written
request from the Owner Trustee so to do, the Owner Trustee shall
have the power to remove any such additional trustee without the
concurrence of the Owner Participant; and the Owner Participant
hereby appoints the Owner Trustee its agent and attorney-in-fact to
act for it in such connection in such contingency; and
(f) no appointing of, or action by, any additional trustee
will relieve the Owner Trustee of any of its obligations under, or
otherwise affect any of the
17
terms of the Trust Indenture or affect the interests of the
Indenture Trustee or the Holders of the Equipment Notes in the Trust
Estate.
In case any separate trustee under this Section 9.02 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
Applicable Law, vest in and be exercised by Owner Trustee, without the
appointment of a successor to such separate trustee.
ARTICLE X
SUPPLEMENTS AND AMENDMENTS TO TRUST AGREEMENT
AND OTHER DOCUMENTS
Section 10.01 Supplements and Amendments. (a) Supplements and
Amendments. At any time and from time to time, upon the written request of the
Owner Participant, (i) the Owner Trustee, together with the Owner Participant,
shall, subject to Section 5.11 of the Participation Agreement, execute a
supplement to this Trust Agreement for the purpose of adding provisions to, or
changing or eliminating provisions of, this Trust Agreement (except Section
11.11) as specified in such request, and (ii) the Owner Trustee shall, subject
to compliance with the applicable provisions of Section 13.02 of the Trust
Indenture, enter into such written amendment of or supplement to any other
Operative Agreement to which the Owner Trustee is a party as the Indenture
Trustee and Lessee may agree to and as may be specified in such request, or
execute and deliver such written waiver or modification of or consent under the
terms of any such Operative Agreement as Lessee and the Indenture Trustee may
agree to and as may be specified in such request.
(b) Delivery of Amendments and Supplements to Certain Parties. Until
the Trust Indenture shall have been terminated pursuant to Section 10(a) thereof
or the Aircraft shall have been released from the Indenture Estate, a signed
copy of each amendment or supplement to the Trust Agreement shall be delivered
by the Owner Trustee to the Indenture Trustee without in any way affecting the
Trust Indenture or the Equipment Notes and without imposing any duty on the
Indenture Trustee with respect to such amendment or supplement
Section 10.02 Discretion as to Execution of Documents. If in the
opinion of the Owner Trustee any document required to be executed pursuant to
the terms of Section 10.01 adversely affects any right, duty, immunity or
indemnity in favor of the Owner Trustee hereunder or under any other Operative
Agreement to which the Owner Trustee is a party, the 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 Owner
Trustee against any and all liabilities, costs and expenses arising out of the
execution of such documents.
18
Section 10.03 Absence of Requirements as to Form. It shall not be
necessary for any written request furnished pursuant to Section 10.01 to specify
the particular form of the proposed documents to be executed pursuant to such
Section, but it shall be sufficient if such request shall indicate the substance
thereof.
Section 10.04 Distribution of Documents. Promptly after the
execution by the Owner Trustee of any document entered into pursuant to Section
10.01, the Owner Trustee shall mail, by certified mail, postage prepaid, a
conformed copy thereof to the Owner Participant, but the failure of the Owner
Trustee to mail such conformed copy shall not impair or affect the validity of
such document.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Termination of Trust Agreement. This Trust Agreement
and the trusts created hereby shall terminate and this Trust Agreement shall be
of no further force or effect upon the earliest of (a) the later of (x) the
termination of the Trust Indenture pursuant to Section 14.01 thereof and the
sale or other final disposition by the Owner Trustee of all property
constituting part of the Trust Estate and the final distribution by the Owner
Trustee of all monies or other property or proceeds constituting part of the
Trust Estate in accordance with Article IV hereof, provided that at such time
Lessee shall have fully complied with all of the terms of the Participation
Agreement and the Lease, and (y) the expiration or termination of the Lease in
accordance with its terms or (b) 110 years after the earlier execution of this
Trust Agreement by either party hereto, but if this Trust Agreement and the
trusts created hereby shall be or become authorized under applicable law for a
period subsequent thereto (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 and the effective grant of such rights,
privileges and options 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 such rights, privileges or options shall not
terminate as aforesaid but shall extend to and continue in effect, but only if
such non-termination and extension shall then be valid under Applicable Law,
until such time as the same shall under Applicable Law cease to be valid,
whereupon all monies or other property or proceeds constituting part of the
Trust Estate shall be distributed in accordance with the terms of Article IV
hereof, otherwise this Trust Agreement and the trusts created hereby shall
continue in full force and effect in accordance with the terms hereof.
Notwithstanding the foregoing, this Trust Agreement and trust
created hereby shall terminate and the Trust Estate shall be distributed to the
Owner Participant, and this Trust 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
19
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 14.01 of the Trust Indenture and after the Lease shall
no longer be in effect.
Section 11.02 The Owner Participant Has No Legal Title in Trust
Estate. The Owner Participant does 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 the Owner Participant in and to the Trust Estate hereunder shall
operate to terminate this Trust Agreement or the trusts hereunder or entitle any
successors or transferees of the Owner Participant to an accounting or to the
transfer of legal title to any part of the Trust Estate.
Section 11.03 Assignment, Sale, etc., of Aircraft. Any assignment,
sale, transfer or other conveyance of the Aircraft, any Engine, any Part or any
interest therein by the Owner Trustee made pursuant to the terms hereof or of
the Lease or the Participation Agreement shall bind the Owner Participant and
shall be effective to transfer or convey all right, title and interest of the
Owner Trustee and the Owner Participant in and to the Aircraft, such Engine,
such Part or interest therein. 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 the Owner Trustee.
Section 11.04 Trust Agreement for Benefit of Certain Parties Only.
Except for the terms of Section 4.01, Articles V and IX, Sections 10.01, 11.01
and 11.03 hereof, nothing herein, whether express or implied, shall be construed
to give any Person other than the Owner Trustee and the Owner Participant any
legal or equitable right, remedy or claim under or in respect of this Trust
Agreement; but this Trust Agreement shall be held to be for the sole and
exclusive benefit of the Owner Trustee and the Owner Participant.
Section 11.05 Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be given in the manner set
forth in Section 12.01 of the Participation Agreement.
Section 11.06 Severability. Any provision hereof which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 11.07 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 Article X hereof; and any
waiver of the terms hereof shall be effective only in the specified instance and
for the specific purpose given.
20
Section 11.08 Counterparts. This Trust Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 11.09 Binding Effect, etc. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Owner
Trustee and its successors and permitted assigns, and the Owner Participant, its
successors and permitted assigns. Any request, notice, direction, consent,
waiver or other instrument or action by the Owner Participant shall bind its
successors and permitted assigns.
Section 11.10 Headings; References. The headings of the various
Articles and Sections herein are for convenience of reference only and shall not
define or limit any of the terms or provisions hereof.
Section 11.11 GOVERNING LAW. (a) THIS TRUST AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF DELAWARE, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO
HEREBY IRREVOCABLY AGREES, ACCEPTS AND SUBMITS ITSELF TO THE NON-EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN THE CITY AND COUNTY OF
NEW YORK AND OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN
CONNECTION WITH ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO ANY MATTER
RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH THIS TRUST AGREEMENT.
(c) EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS AND AGREES THAT
THE SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS NOTICES AND DOCUMENTS OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE MADE
BY MAILING COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, AT
THE ADDRESS REFERRED TO IN SECTION 11.05. EACH PARTY HERETO HEREBY AGREES THAT
SERVICE UPON IT IN ACCORDANCE WITH THIS SECTION 11.11(c) SHALL CONSTITUTE VALID
AND EFFECTIVE PERSONAL SERVICE UPON SUCH PARTY.
(d) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A
DEFENSE, OR OTHERWISE, IN ANY LEGAL ACTION OR PROCEEDING BROUGHT HEREUNDER IN
ANY OF THE ABOVE-NAMED COURTS, THAT SUCH ACTION OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM, THAT VENUE FOR THE ACTION OR PROCEEDING IS IMPROPER OR THAT
THIS TRUST
21
AGREEMENT OR ANY OTHER OPERATIVE AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH
COURTS.
(e) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO
HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION IN ANY COURT IN ANY JURISDICTION BASED UPON OR ARISING OUT OF OR RELATING
TO THIS TRUST AGREEMENT.
Section 11.12 Administration of Trust. The principal place of
administration of the trust created by this Trust Agreement shall be in the
State of Delaware.
* * *
22
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.
NCC CHARLIE COMPANY
By
---------------------------
Name:
Title:
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION
By
---------------------------
Name:
Title:
23
