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Exhibit 3.2
EXECUTION COPY
AMENDED AND RESTATED TRUST AGREEMENT
OF
AIRCRAFT FINANCE TRUST
Dated as of May 4, 1999
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.......................................................................1
Section 1.01. Definitions and Construction..........................................1
ARTICLE II GENERAL MATTERS..................................................................2
Section 2.01. Organizational Matters................................................2
Section 2.02. Management by the Controlling Trustees; Authority of the Owner
Trustee...............................................................3
Section 2.03. Objects...............................................................4
Section 2.04. Prohibition and Limitation of Actions by AFT and the Trustees.........5
Section 2.05. Limitation on the Issuance, Delivery and Sale of Equity
Interests.............................................................8
Section 2.06. Independent Business..................................................8
Section 2.07. Duration of AFT.......................................................9
Section 2.08. Trust for Benefit of Holders of AFT Debt Securities...................9
ARTICLE III THE BENEFICIAL INTEREST CERTIFICATES...........................................10
Section 3.01. Issuance of Beneficial Interest Certificates; Terms; Form;
Execution and Delivery...............................................10
Section 3.02. Restrictive Legends..................................................11
Section 3.03. Register.............................................................12
Section 3.04. Method of Payment....................................................12
Section 3.05. Transfer and Exchange; Cancellation..................................13
Section 3.06. Mutilated, Destroyed, Lost or Stolen Beneficial Interest
Certificates.........................................................13
Section 3.07. Payments of Transfer Taxes...........................................13
Section 3.08. Additional Certificates..............................................14
Section 3.09. Special Transfer Provisions..........................................14
Section 3.10. CUSIP, CINS and ISIN Numbers.........................................16
Section 3.11. Distributions........................................................16
Section 3.12. Subordination of the Securities......................................16
Section 3.13. Additional Capital...................................................16
ARTICLE IV TRUSTEES........................................................................17
Section 4.01. Number and Status....................................................17
Section 4.02. Owner Trustee........................................................17
Section 4.03. Controlling Trustees.................................................18
Section 4.04. Quorum; Meetings.....................................................19
Section 4.05. Controlling Trustees' Resolution.....................................20
Section 4.06. Notice of Meetings...................................................20
Section 4.07. Voting...............................................................20
Section 4.08. Resolutions..........................................................21
Section 4.09. Delegation...........................................................22
Section 4.10. Vacancies............................................................22
Section 4.11. Effect of Replacement................................................22
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Section 4.12. Effect of Vacancies..................................................22
Section 4.13. Transactions with Trustees...........................................22
Section 4.14. Interests of Trustees................................................23
Section 4.15. Confidentiality Obligations of Trustees..............................23
Section 4.16. Contract with Trustee................................................23
Section 4.17. Validity of Acts.....................................................23
Section 4.18. Minute Book..........................................................24
Section 4.19. Fees and Remuneration; Directors and Officers Insurance..............24
Section 4.20. Trustees May Rely....................................................24
Section 4.21. Trustees Act Solely as Trustees......................................25
Section 4.22. No Expenses for the Trustees.........................................25
Section 4.23. No Representations or Warranties as to Certain Matters...............25
ARTICLE V INDEMNIFICATION OF TRUSTEES......................................................25
Section 5.01. Liability and Indemnity..............................................25
Section 5.02. Agents...............................................................26
Section 5.03. Insurance............................................................26
Section 5.04. Non-Exclusive Rights.................................................26
Section 5.05. Survival.............................................................26
ARTICLE VI TERMINATION OF AFT..............................................................26
Section 6.01. Termination of AFT...................................................26
ARTICLE VII AMENDMENTS.....................................................................27
Section 7.01. Amendments...........................................................27
ARTICLE VIII MISCELLANEOUS.................................................................28
Section 8.01. Notices..............................................................28
Section 8.02. Governing Law........................................................29
Section 8.03. Jurisdiction.........................................................29
Section 8.04. Counterparts.........................................................30
Section 8.05. Agreement............................................................30
Section 8.06. Table of Contents; Headings..........................................30
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EXHIBITS
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Exhibit A - Form of Beneficial Interest Certificate
Exhibit B - Form of Affidavit of Citizenship
Exhibit C - Form of Certificate to be Delivered in Connection with Transfers
to Non-QIB Accredited Investors
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This AMENDED AND RESTATED TRUST AGREEMENT (this "Trust Agreement"),
dated as of May 4, 1999, is made between UNICAPITAL AFT-I, INC. and UNICAPITAL
AFT-II, INC., each a Delaware corporation (the "Depositors") and WILMINGTON
TRUST COMPANY, a Delaware banking corporation, as the Person accepting
appointment as the Owner Trustee under this Trust Agreement.
Pursuant to that certain Trust Agreement dated April 13, 1999, the
parties created a business trust under the Business Trust Act (the "Original
Trust Agreement") and by this instrument intend to amend and restate such
agreement such that this Amended and Restated Trust Agreement shall constitute
the governing instrument of that business trust. Accordingly, the parties agree
that the Original Trust Agreement is hereby amended and restated in its entirety
to read as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions and Construction. For purposes of this
Trust Agreement, the following terms shall have the meanings indicated below.
Capitalized terms used but not defined in this Trust Agreement shall have the
meaning given to such terms in the Indenture. The rules of construction
contained in Section 1.02 of the Indenture shall apply to this Trust Agreement.
A "subsidiary" of any Person shall include a trust of which such Person is the
holder of the beneficial interest.
"AFT" has the meaning given to such term in Section 2.01(a) hereof.
"Basic Terms Modification" has the meaning given to such term in
Section 7.01 hereof.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801 et seq.
"Citizen of the United States" has the meaning given to the term
"citizen of the United States" in Section 40102(a)(15) of the Federal Aviation
Act.
"Controlling Trustee" means each Person appointed, at the time of
determination, as a controlling trustee under this Trust Agreement. The initial
Controlling Trustees are identified in Section 4.03 hereof.
"Depositors" has the meaning given to such term in the introductory
paragraph of this Trust Agreement.
"Eligibility Requirements" has the meaning given to such term in
Section 4.02 hereof.
"Equity Trustee" means the Person appointed, at the time of
determination, as the Trustee appointed by the Certificateholders under this
Trust Agreement. The initial Equity Trustee is identified in Section 4.03
hereof.
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"Indenture" means the Trust Indenture between AFT, ReSource/Phoenix,
Inc. and Bankers Trust Company.
"Indenture Trustee" means the "Trustee" as defined in the Indenture.
"Independent Controlling Trustee" means the Controlling Trustees
appointed, at the time of determination, as the Independent Controlling Trustees
under this Trust Agreement. The initial Independent Controlling Trustees are
identified in Section 4.03 hereof.
"Original Trust Agreement" has the meaning given to such term in the
second introductory paragraph of this Trust Agreement.
"Owner Trustee" means the Person appointed, at the time of
determination, as the owner trustee under this Trust Agreement. The initial
Owner Trustee is Wilmington Trust Company.
"Private Placement Legend" means the legend initially set forth on
the Beneficial Interest Certificates in the form set forth in Section 3.02
hereof.
"Register" has the meaning given to such term in Section 3.03
hereof.
"Trustee" means any of or in its plural form all of the Owner
Trustee and the Controlling Trustees.
"Trust Agreement" has the meaning given to such term in the
introductory paragraph of this Trust Agreement.
"Trust Property" means any and all property in which AFT at any time
has any right, title or interest.
ARTICLE II
GENERAL MATTERS
Section 2.01. Organizational Matters.
(a) The name of the business trust that is the subject of this Trust
Agreement is "Aircraft Finance Trust". If the Controlling Trustees determine
that the use of the name "Aircraft Finance Trust" is not practicable or
desirable, they may change the name and use any other designation or name for
such business trust. To the extent practicable, the Trustees shall conduct the
activities of Aircraft Finance Trust ("AFT"), execute and deliver all documents
and cause AFT to xxx or be sued under its name. Any reference to AFT shall be a
reference to the business trust created hereby and not to any of the Trustees
individually, to the officers, agents or employees of AFT, to the Depositors or
to any other Certificateholders or other holders of a beneficial interest in
AFT.
(b) The principal office of AFT, and such additional offices as the
Controlling Trustees may determine to establish, shall be located at such place
or places inside or outside the State of Delaware as the Controlling Trustees
may designate from time to time. The principal
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office of AFT is initially located c/o Wilmington Trust Company, Attention:
Corporate Trust Administrator, at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxx, XX 00000-0000.
(c) AFT is a "business trust", the Trustees are the "trustees" and
each Certificateholder is a "beneficial owner", within the meaning of the
Business Trust Act. AFT shall not be deemed to be a general partnership, limited
partnership, limited liability company, joint venture, joint shares company or a
corporation. It is intended that AFT shall be treated for tax purposes as a
partnership (and not a publicly traded partnership) under the United States
Internal Revenue Code of 1986.
(d) Legal title to all Trust Property shall be vested in AFT as a
separate legal entity, except that the Controlling Trustees may cause legal
title to any Trust Property to be held by or in the name of any other Person as
a nominee and in furtherance thereof, legal title to any Aircraft may be held in
the name of the Owner Trustee or the owner trustee under any trust established
by and for the benefit of AFT. No Certificateholder or other owner of a
beneficial interest in AFT shall be deemed to have a severable ownership
interest in or any right of partition or possession to any part of the Trust
Property.
(e) The Owner Trustee hereby declares that it will hold the Trust
Property upon the terms set forth in this Trust Agreement. Each successor Owner
Trustee shall succeed to the right, title and interest of the Owner Trustee in
the Trust Property automatically upon its due succession or due acceptance of
appointment as the Owner Trustee without the need for any conveyancing documents
as to all or any part of the Trust Property. Subject to the right of the
Controlling Trustees to direct the Owner Trustee as to the transfer or
encumbering of all or any part of the Trust Property, all documents effecting
any transfer or encumbering of all or any part of the Trust Property shall be
executed and delivered exclusively by the Owner Trustee.
Section 2.02. Management by the Controlling Trustees; Authority of
the Owner Trustee.
(a) The Controlling Trustees shall have the exclusive and full
authority to manage the Trust Property and affairs of AFT, subject to the terms
and provisions of this Trust Agreement. By acceptance of its appointment, each
Controlling Trustee agrees to manage the Trust Property and the affairs of AFT
in accordance with the terms of this Trust Agreement and specifically, so long
as any debt securities of AFT remain outstanding, to take no action with respect
to all or any part of the Trust Property that contravenes or conflicts with any
provision of the Indenture or other instrument governing such debt securities.
(b) The Owner Trustee shall have the exclusive authority to (i)
accept legal process served on AFT in the State of Delaware, (ii) execute any
certificates that the Owner Trustee is required to execute under Section 3811 of
the Business Trust Act and file such certificates with the Delaware Secretary of
State, (iii) subject to the direction of the Controlling Trustees, receive funds
from the Indenture Trustee and distribute them in accordance herewith, (iv)
subject to the direction of the Controlling Trustees, send to the
Certificateholders a copy of each notice or other communication received by the
Owner Trustee under the Indenture for or on behalf of one or more of the
Certificateholders as provided herein, (v) subject to the direction of
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the Controlling Trustees, send to the Indenture Trustee a copy of each notice,
request or other communication for or on behalf of one or more
Certificateholders as provided herein or in the Indenture, (vi) subject to the
direction of the Controlling Trustees, execute and send to the Indenture Trustee
in the name of and on behalf of AFT such notices, requests or other
communications as the Indenture requires on the part of AFT or as the
Controlling Trustees shall direct and (vii) execute and deliver in the name of
and on behalf of AFT such Related Documents as are to be executed and delivered
on the Initial Closing Date or as the Controlling Trustees shall direct and any
amendments or supplements to any Related Documents and any other certificates,
instruments, documents or other papers (including documents of transfer or
encumbrance) as the Controlling Trustees shall direct. Each such action shall be
taken by the Owner Trustee in its capacity as such and not in its individual
capacity, and any papers so executed may so state. The Owner Trustee shall not
be required to take any such action if the Owner Trustee shall determine, or
shall be advised by counsel, that such action is likely to result in personal
liability or is contrary to Applicable Law or any agreement to which AFT or the
Owner Trustee is a party.
Section 2.03. Objects. AFT is formed for the following objects only:
(a) to enter into and to perform the Asset Purchase Agreement, the
Indenture, the Security Trust Agreement, any of the other Related Documents, and
any other agreements as are required by the terms of the Related Documents or as
the Controlling Trustees determine to be appropriate for the objects of and the
proper conduct of the affairs of AFT;
(b) to acquire, directly or indirectly through any subsidiary or
other intermediary, aircraft and related assets pursuant to the Asset Purchase
Agreement or from time to time pursuant to other Acquisition Agreements or
otherwise;
(c) to own, hold, convert, maintain, modify, manage, operate, lease,
re-lease and sell or otherwise dispose of any aircraft or related assets and
enter into all agreements and engage in all related activities incidental
thereto (in each case directly or indirectly through any subsidiary or other
intermediary), including from time to time accepting, exchanging, holding or
permitting any of its subsidiaries to accept, exchange or hold promissory notes,
contingent payment obligations or equity interests of lessees or their
Affiliates issued in connection with the bankruptcy, reorganization or other
similar process, or in settlement of delinquent obligations or obligations
anticipated to be delinquent, of such lessees or their respective Affiliates;
(d) to provide loans to or guarantee or otherwise support the
obligations and liabilities of any of its subsidiaries on such terms and in such
manner as the Controlling Trustees see fit and (whether or not AFT or any of its
subsidiaries shall derive a benefit therefrom) so long as such loans,
guarantees, or other supports are provided for the purposes set forth in
paragraphs 2.03(a), (b) or (c) hereof; provided that no such loan, guarantee or
other support of the obligations or liabilities of any of its subsidiaries shall
be provided if it would materially adversely affect the holders of any debt
securities of AFT;
(e) to finance and refinance the activities described in paragraphs
2.03(a), (b) or (c) above through the offer, sale and issuance of any securities
of AFT, including the Initial Notes, the Additional Notes, the Refinancing
Notes, the Exchange Notes, the Beneficial Interest
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Certificates and the Additional Certificates, upon such terms and conditions as
the Controlling Trustees see fit, for cash or in payment or in partial payment
for any property purchased or otherwise acquired by AFT or any of its
subsidiaries and to encumber, by grant of a security interest, mortgage or other
charge (including the Security Trust Agreement), all or any part of the Trust
Property whether now or hereinafter acquired and to permit its subsidiaries to
do all or any of the foregoing;
(f) to engage in currency and interest rate exchange transactions
for the purposes of avoiding, reducing, minimizing, hedging against or otherwise
managing the risk of any loss, cost, expense or liability arising, or which may
arise, directly or indirectly, from any change or changes in any interest rate
or currency exchange rate or in the price or value of any of AFT's or any of its
subsidiaries' property or assets, within limits determined by the Controlling
Trustees from time to time and submitted to the Rating Agencies, including
dealings, whether involving purchases, sales or otherwise, in foreign currency,
spot and forward interest rate exchange rate contracts, forward interest rate
agreements, caps, floors and collars, futures, options, swaps and any other
currency, interest rate and other similar hedging arrangements and such other
instruments as are similar to, or derivatives of, any of the foregoing;
(g) to establish, promote and aid in promoting, constituting,
forming or organizing companies, trusts, syndicates, partnerships or other
entities of all kinds in any part of the world for the purposes set forth in
paragraph 2.03(a), (b), (c) or (d) hereof and to acquire, hold or exercise
rights with respect to and dispose of shares, securities and other interests in
any Person who is or becomes thereby a subsidiary or causing the disposition of
the assets of, or the dissolution of, any existing subsidiary;
(h) to take out, acquire, surrender, assign or exercise rights with
respect to and pay premiums on policies of insurance and assurances with any
insurance company or companies and permit its subsidiaries to do so, all as the
Controlling Trustees may think fit ; and
(i) to do all such things as may be deemed incidental or conducive
to the attainment of all or any of the above objects.
For the avoidance of doubt, AFT is authorized to, and to permit its
subsidiaries to, engage in any activity or other undertaking expressly required
or authorized by the Indenture.
Section 2.04. Prohibition and Limitation of Actions by AFT and the
Trustees.
(a) Prohibited Activity. AFT (and its subsidiaries) shall not, and
the Trustees shall not cause AFT (or its subsidiaries) to engage in any activity
other than as required or authorized by Section 2.03 hereof or any other
provision of this Trust Agreement. Any party to this Trust Agreement, any
Certificateholder and, for so long as any debt securities of AFT remain
outstanding, any holders of such debt securities (or any trustee or other
representative thereof), may bring a proceeding to set aside and enjoin the
performance of any act or acts by AFT that are not required or authorized by
Section 2.03 hereof or any other provision of this Trust Agreement.
(b) Limitations on New Subsidiaries. The organizational documents of
each direct or indirect subsidiary of AFT formed or acquired on or after the
date hereof shall limit
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such subsidiary's activities to those permitted under Section 5.02(e) of the
Indenture and shall provide that, except to the extent otherwise required by
Applicable Law, such subsidiary may not commence a voluntary bankruptcy or
similar proceeding except with the consent of all of the trustees or directors,
as applicable, of such subsidiary (other than a statutory trustee), at least one
of whom shall be an individual who is an Independent Controlling Trustee under
this Trust Agreement.
(c) Limitation on Employees. AFT shall not, and AFT shall not permit
any of its subsidiaries to, employ or maintain any employees other than as
required by any provisions of local law; provided that the Trustees (or any
Person serving on any committee thereof) and the trustees and directors of each
of AFT's subsidiaries shall not be deemed to be employees for purposes of this
Section 2.04(c).
(d) Limitation on Indebtedness. AFT shall not, and AFT shall not
permit any of its subsidiaries to, incur, create, issue, assume, guarantee or
otherwise become liable for or with respect to, or become responsible for, the
payment of, contingently or otherwise, whether present or future (in any such
case, to "incur"), Indebtedness. The Beneficial Interest Certificates shall not
constitute Indebtedness.
Notwithstanding the foregoing, AFT and any of its subsidiaries may
incur each and all of the following:
(i) Indebtedness in respect of any Initial Notes issued on the
Initial Closing Date;
(ii) Indebtedness in respect of any Refinancing Notes or other
Indebtedness described in the proviso to Section 5.02(c)(iii) of the Indenture;
provided that (A) such Refinancing Notes or other Indebtedness receive ratings
from the Rating Agencies at the close of such Refinancing or repurchase equal to
or higher than those of the subclass being refinanced or repurchased (determined
at the date of incurrence), (B) taking into account such Refinancing or
repurchase, a Rating Agency Confirmation is obtained prior to such Refinancing
or repurchase and (C) the net proceeds of any such Refinancing or other
Indebtedness shall be used only to repay the Outstanding Principal Balance of
the subclass of Notes being so refinanced or repurchased (plus any premium and
transaction expenses relating thereto) and to fund any Cash Collateral Account
and/or Reserved Cash in the Collections Account in respect of such Refinancing
Notes;
(iii) Indebtedness in respect of any Exchange Notes issued pursuant
to the Indenture and the Registration Rights Agreement;
(iv) Indebtedness in respect of any Additional Notes the proceeds of
which are applied to finance a Permitted Additional Aircraft Acquisition;
provided that (A) a Rating Agency Confirmation is obtained prior to the
incurrence of such Indebtedness and (B) the net proceeds of such Indebtedness
shall be used only to finance such Permitted Additional Aircraft Acquisition
(plus transaction expenses relating thereto) and to fund any Cash Collateral
Account and/or Reserved Cash in the Collections Account in respect of such
Additional Notes and (C)
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such Additional Notes will be cross-collateralized with all Outstanding Notes by
the Collateral under the Security Trust Agreement;
(v) Indebtedness in respect of guarantees by any Issuer Group Member
of any other Issuer Group Member; provided that no such Indebtedness shall be
incurred if it would materially adversely affect the Holders;
(vi) obligations to each Seller under each Acquisition Agreement and
any related lease assignment and assumption agreements and the documents related
thereto;
(vii) Indebtedness under any agreements between any Issuer Group
Member and any other Issuer Group Member (each, an "Intercompany Loan");
provided that such Indebtedness shall be evidenced by promissory notes and
written notice shall have been given to each Rating Agency of the incurrence of
such Indebtedness; and
(viii) Indebtedness of any Issuer Group Member under any Credit
Facility or Swap Agreement.
(e) Limitation on Consolidation, Merger and Transfer of Assets. AFT
shall not, and AFT shall not permit any of its subsidiaries to, consolidate
with, merge with or into, or sell, convey, transfer, lease or otherwise dispose
of its property and assets (as an entirety or substantially an entirety in one
transaction or in a series of related transactions) to, any other Person, or
permit any other Person to merge with or into AFT or any of its subsidiaries,
unless (i) the resulting entity is a special purpose entity, the organizational
document of which is substantially similar to this Trust Agreement or the
equivalent organizational document of such Issuer Group Member, as the case may
be, and, after such consolidation, merger, sale, conveyance, transfer, lease or
other disposition, payments from such resulting entity to the Holders and the
Certificateholders do not give rise to any withholding tax payments less
favorable to the Holders or the Certificateholders than the amount of any
withholding tax payments that would have been required had such event not
occurred and such entity is not subject to taxation as a corporation or an
association or publicly traded partnership taxable as a corporation, (ii) in the
case of any consolidation, merger or transfer by AFT, the Beneficial Interest
Certificates remain outstanding or new Ownership Interests having substantially
the same terms and conditions as the exchanged Beneficial Interest Certificates
are issued in exchange therefor and the surviving successor or transferee entity
expressly assumes all of the obligations of AFT under the Indenture, the
Securities and each other Related Document to which AFT is then a party, (iii) a
Rating Agency Confirmation is obtained with respect to such merger, sale,
conveyance, transfer, lease or disposition, (iv) immediately after giving effect
to such transaction, no Event of Default has occurred and is continuing, (v)
such transaction does not result in the recognition of gain or loss by the
Holders for U.S. federal income tax purposes, and (vi) AFT delivers to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel, in each
case stating that such consolidation, merger or transfer and such assumption
documents comply with the above criteria and, if applicable, Section 5.02(g) of
the Indenture and that all conditions precedent provided for in the Indenture
relating to such transaction have been complied with; provided that this
covenant shall not apply to any such consolidation, merger, sale, conveyance,
transfer, lease or disposition (1) within and between AFT and any of its
subsidiaries and any other Issuer Group Member if such consolidation, merger,
sale, conveyance,
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transfer, lease or disposition, as the case may be, would not materially
adversely affect the Holders and the Certificateholders, (2) complying with the
terms of Section 5.02(g) of the Indenture or (3) effected as part of a single
transaction providing for the redemption or defeasance of Securities in
accordance with Section 3.10 or Article XI, respectively, of the Indenture.
Section 2.05. Limitation on the Issuance, Delivery and Sale of
Equity Interests. AFT shall not (a) issue, deliver or sell any shares,
interests, participations or other equity equivalents (however designated,
whether voting or non-voting, other than beneficial interests, shares,
participations or other equivalents existing on the Initial Closing Date) or (b)
sell, or permit any subsidiary, directly or indirectly, to issue, deliver or
sell, any shares, interests, participations or other equity equivalents (however
designated, whether voting or non-voting, other than beneficial interests,
shares, participations or other equivalents existing on the Initial Closing
Date), except (i) the issuance, sale, delivery, transfer or pledge of Ownership
Interests in any Issuer Group Member to or for the benefit of any other Issuer
Group Member, (ii) issuances or sales of any Additional Certificates the
proceeds of which are applied to finance a Permitted Additional Aircraft
Acquisition and as provided in Section 2.04(d)(iv) hereof in accordance with the
provisions of Section 2.11 of the Indenture, provided that (A) a Rating Agency
Confirmation is obtained prior to such issuance and (B) the net proceeds of such
issuance shall be used only to finance such Permitted Additional Aircraft
Acquisition and as provided in Section 2.04(d) (iv) hereof; (iii) issuances or
sales of shares of Ownership Interests in foreign Issuer Subsidiaries to
nationals in the jurisdiction of incorporation or organization of such Issuer
Subsidiary, as the case may be, to the extent required by Applicable Law or
necessary in the determination of the Controlling Trustees to avoid adverse tax
consequences in any such jurisdiction, (iv) the pledge of the Pledged Stock and
Pledged Beneficial Interest or pledge of any other Ownership Interest pursuant
to the Security Trust Agreement, (v) the sale or other disposition of any
Ownership Interest in an Issuer Subsidiary in order to effect the sale of all
Aircraft owned by such Issuer Subsidiary in compliance with Section 5.02(g) of
the Indenture, (vi) contributions to the capital of AFT by the
Certificateholders for the purpose of exercising AFT's rights under Section 3.13
of the Indenture, for the purpose of an Optional Redemption of any subclass of
Notes or for the purpose of discharging the Notes upon their Acceleration and
(vii) the issuance of certificates in replacement for, or upon transfer or
exchange of, then Outstanding Beneficial Interest Certificates in accordance
with the terms hereof.
Section 2.06. Independent Business. AFT will conduct its activities,
and will cause each of its subsidiaries to conduct its business such that it is
a separate and readily identifiable business from, and independent of, any
Certificateholder and any of its Affiliates (it being understood that any
Certificateholder and its Affiliates may publish financial statements that
consolidate those of AFT and any of its Affiliates, if to do so is required by
any Applicable Law or accounting principles from time to time in effect and
AFT's subsidiaries may file consolidated tax returns with any Certificateholder
and its Affiliates for tax purposes). Without limiting the foregoing, AFT:
(a) will observe, and will cause its subsidiaries to observe, all
formalities necessary to remain legal entities separate and distinct from each
Certificateholder and any of its Affiliates;
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(b) will maintain, and will cause its subsidiaries to maintain, each
of their respective assets and liabilities separate and distinct from those of
each Certificateholder and any of its Affiliates;
(c) will maintain, and will cause its subsidiaries to maintain,
records, books, accounts, and minutes separate from those of each
Certificateholder and any of its Affiliates;
(d) will pay its obligations, and will cause its subsidiaries to pay
each of their respective obligations in the ordinary course of business as legal
entities separate from each Certificateholder and any of its Affiliates;
(e) will keep, and will cause its subsidiaries to keep, each of
their respective funds separate and distinct from any funds of each
Certificateholder and any of its Affiliates, and will receive, deposit, withdraw
and disburse such funds separately from any funds of each Certificateholder and
any of its Affiliates;
(f) will conduct its activities, and will cause each of its
respective subsidiaries to conduct their respective businesses in their own
name, and not in the name of any Certificateholder or any of its Affiliates;
(g) will not agree, and will cause its subsidiaries not to agree, to
pay or become liable for any debt of any Certificateholder or any of its
Affiliates;
(h) will not hold out, and will cause its subsidiaries not to hold
out, that any of them is a division of any Certificateholder or any of its
Affiliates or that any Certificateholder or any of its Affiliates is a division
of any of them;
(i) will not induce, and will cause its subsidiaries not to induce,
any third party to rely on the creditworthiness of any Certificateholder or any
of its Affiliates in order that such third party will contract with it; and
(j) will not enter into, and will cause its subsidiaries not to
enter into, any transaction between any of them and any Certificateholder or any
of its Affiliates that are more favorable to such Certificateholder and its
Affiliates than transactions that AFT and its subsidiaries would have been able
to enter into at such time on an arm's-length basis with a non-affiliated third
party, other than any agreements in effect on the date hereof or any
transactions permitted pursuant to the Indenture.
For the avoidance of doubt, AFT is authorized to, and to permit its
subsidiaries to, engage in any activity or other undertaking expressly required
or authorized by the Indenture.
Section 2.07. Duration of AFT. AFT, unless terminated pursuant to
the provisions of Article VI hereof, shall have a perpetual existence.
Section 2.08. Trust for Benefit of Holders of AFT Debt Securities.
(a) This Trust Agreement has been entered into, and AFT has been
created, in part to induce the Holders to purchase their respective Notes. Each
Certificateholder (by
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accepting a Beneficial Interest Certificate) and the Trustees agree that the
Holders from time to time are third party beneficiaries hereof, and shall be
entitled to enforce the terms of this Trust Agreement to the same extent as if
they were parties hereto, subject, however, to the provisions of the documents
governing the Notes.
(b) Neither the bankruptcy, insolvency or other incapacity of any
Certificateholder, nor any transfer, by operation of law or otherwise, by it of
any interest in AFT or the Trust Property, shall (i) operate to terminate this
Trust Agreement or the existence of AFT, (ii) entitle any Certificateholder or
its legal representatives or transferees to claim an accounting or to take any
action in any court for a partition of all or any part of the Trust Property or
for the winding up of AFT or (iii) otherwise affect the rights, duties and
liabilities of the parties hereto.
ARTICLE III
THE BENEFICIAL INTEREST CERTIFICATES
Section 3.01. Issuance of Beneficial Interest Certificates; Terms;
Form; Execution and Delivery.
(a) AFT is hereby authorized to issue the Initial Certificates and
such Additional Certificates as are authorized in a Controlling Trustees'
Resolution; provided that any Additional Certificates shall be issued in
accordance with Section 2.05 hereof and Section 2.11 of the Indenture.
On the Initial Closing Date, AFT shall issue to each Depositor
in consideration of and against receipt of the initial contribution of such
Depositor in the amount set forth in a Controlling Trustees' Resolution and
against receipt from such Depositor of affidavits in the form of Exhibits B and
C to this Trust Agreement, Beneficial Interest Certificates representing the
percentage beneficial interest of such Depositor in the Trust Property and AFT
specified in such Controlling Trustees' Resolution, such percentages
representing in the aggregate for both Depositors all of the beneficial interest
in the Trust Property and AFT.
(b) Each Beneficial Interest Certificate to be issued on any Closing
Date (including any Additional Certificates) shall be issued and delivered to,
and registered in the name of, the relevant Certificateholder in registered
form, in the form of a permanent certificated certificate and substantially in
the form set forth in Exhibit A to this Trust Agreement, with such appropriate
insertions, omissions, substitutions and other variations as are required by
this Trust Agreement or as are, consistently herewith, set forth in a
Controlling Trustees' Resolution and may have such letters, numbers or other
marks of identification and such legends or endorsements printed, lithographed
or engraved thereon, as may be required to conform to any usage in respect
thereof or as may, consistently herewith, be prescribed by a Controlling
Trustees' Resolution.
Beneficial Interest Certificates shall be printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner, all as determined by a Controlling Trustees' Resolution.
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(c) The Beneficial Interest Certificates shall be executed on behalf
of AFT by the manual or facsimile signature of any Responsible Officer of the
Owner Trustee, such execution to constitute the authentication thereof.
(d) Each Beneficial Interest Certificate bearing the manual or
facsimile signature of any individual who at the time such Beneficial Interest
Certificate was executed was a Responsible Officer of the Owner Trustee shall
bind AFT, notwithstanding that any such individual has ceased to hold such
office or to be a Responsible Officer prior to the delivery of such Beneficial
Interest Certificate or any payment thereon or at any time thereafter.
(e) No Beneficial Interest Certificate shall be entitled to any
benefit under this Trust Agreement or be valid or obligatory for any purpose,
unless it shall have been executed on behalf of AFT and authenticated as
provided in clause (c) above. The signature of a Responsible Officer of the
Owner Trustee on any Beneficial Interest Certificate shall be conclusive
evidence that such Beneficial Interest Certificate has been duly executed and
authenticated under this Trust Agreement. Each Beneficial Interest Certificate
shall be dated the date of its execution.
Section 3.02. Restrictive Legends. Each Beneficial Interest
Certificate shall bear the following legends on the face thereof:
THIS BENEFICIAL INTEREST CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR WITH ANY SECURITIES REGULATORY AUTHORITY IN ANY JURISDICTION AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE CERTIFICATEHOLDER (1)
REPRESENTS THAT IT IS EITHER (A) A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) AND A "CITIZEN OF THE
UNITED STATES" (AS DEFINED IN SECTION 40102(a)(15) OF PART A OF SUBTITLE
VII OF TITLE 49, UNITED STATES CODE AND IN THE FEDERAL AVIATION
REGULATIONS) OR (B) AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(a)(1), (2), (3), (7) OR (8) OF REGULATION D UNDER THE SECURITIES
ACT) AND A "CITIZEN OF THE UNITED STATES" (AS DEFINED IN SECTION
40102(a)(15) OF PART A OF SUBTITLE VII OF TITLE 49, UNITED STATES CODE AND
IN THE FEDERAL AVIATION REGULATIONS), (2) AGREES THAT IT WILL NOT, WITHIN
THE TIME PERIOD REFERRED TO IN RULE 144(k) (TAKING INTO ACCOUNT THE
PROVISIONS OF RULE 144(d) IF APPLICABLE) UNDER THE SECURITIES ACT AS IN
EFFECT ON THE DATE OF THE TRANSFER OF THIS BENEFICIAL INTEREST
CERTIFICATE, RESELL OR OTHERWISE TRANSFER THIS BENEFICIAL INTEREST
CERTIFICATE EXCEPT (A) TO AIRCRAFT FINANCE TRUST, A DELAWARE BUSINESS
TRUST ESTABLISHED UNDER THE BELOW REFERRED TO TRUST AGREEMENT DATED AS OF
APRIL 13, 1999 AS AMENDED AND RESTATED UNDER THE AMENDED AND RESTATED
TRUST AGREEMENT DATED AS OF MAY 4, 1999 (THE "AGREEMENT"), OR ANY
SUBSIDIARY THEREOF THAT IS A CITIZEN OF THE UNITED STATES, (B) TO A
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QUALIFIED INSTITUTIONAL BUYER THAT IS A CITIZEN OF THE UNITED STATES IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT IS A CITIZEN OF THE UNITED STATES
IN COMPLIANCE WITH SECTION 3.09 OF THE TRUST AGREEMENT, (D) TO A CITIZEN
OF THE UNITED STATES, PURSUANT TO AN EXEMPTION FROM REGISTRATION IN
ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND, IN EACH CASE (A) THROUGH (E) ABOVE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE IN THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS BENEFICIAL INTEREST CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
BENEFICIAL INTEREST CERTIFICATE WITHIN THE TIME PERIOD REFERRED TO ABOVE,
THE CERTIFICATEHOLDER MUST SUBMIT THIS BENEFICIAL INTEREST CERTIFICATE TO
THE OWNER TRUSTEE. THE TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE
OWNER TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS BENEFICIAL
INTEREST CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
REFERENCE IS ALSO MADE TO THE PROVISIONS OF SECTION 3.09 OF
THE TRUST AGREEMENT AS TO ADDITIONAL RESTRICTIONS ON THE TRANSFER OF THIS
BENEFICIAL INTEREST CERTIFICATE.
Section 3.03. Register. With respect to each of the Beneficial
Interest Certificates, the Owner Trustee shall at all times be the Person at
whose office in the location set forth in Section 8.01 hereof the Beneficial
Interest Certificates may be presented or surrendered for registration of
transfer or for exchange and for payment thereof and where notices and demands
to or upon AFT in respect of the Beneficial Interest Certificates may be served.
The Owner Trustee shall keep a register of the Beneficial Interest Certificates
and of their transfer and exchange (the "Register").
Section 3.04. Method of Payment. On (i) each Payment Date to the
extent received by it under Section 3.08 of the Indenture and (ii) upon receipt
by it of any Excluded Payments, the Owner Trustee shall pay to the
Certificateholders all distributions with respect to the Beneficial Interest
Certificates to which they are entitled in accordance with the provisions
hereof; provided, that in the event and to the extent receipt of any payment is
not confirmed by the Owner Trustee by 1:00 p.m. (New York time) on such Payment
Date or any Business Day thereafter or on the date of the Owner Trustee's
receipt of any Excluded Payments, as applicable, distribution thereof shall be
made on the Business Day following the Business Day such payment is received.
Each payment on any Payment Date of amounts received under Section 3.08 of the
Indenture with respect to any Beneficial Interest Certificates shall be made by
the Owner Trustee to the Certificateholders as of the Record Date for such
Payment Date, and each payment of any Excluded Payment shall be made to the
Certificateholders on the date of payment.
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(a) Payments under Section 3.04(a) hereof shall be made by check
mailed to each Certificateholder on the applicable Record Date or, in the case
of Excluded Payments, on the date of payment, at its address appearing on the
Register. Alternatively, in the case of the Depositor or upon application in
writing to the Controlling Trustee, not later than the applicable Record Date,
by any other Certificateholder (which may be granted or denied in the discretion
of the Controlling Trustees), any such payments shall be made by wire transfer
to an account designated by such Certificateholder at a financial institution in
the United States of America.
Section 3.05. Transfer and Exchange; Cancellation. A
Certificateholder may transfer a Beneficial Interest Certificate only by written
application to the Owner Trustee stating the name of the proposed transferee and
otherwise complying with the terms of this Trust Agreement. No such transfer
shall be effective until, and such transferee shall succeed to the rights of a
Certificateholder only upon, final acceptance and registration of the transfer
by the Owner Trustee in the Register.
Prior to the due presentment for registration of transfer of a
Beneficial Interest Certificate, AFT and the Owner Trustee may deem and treat
the applicable registered Certificateholder as the absolute owner and
Certificateholder of such Beneficial Interest Certificate for the purpose of
receiving payment of all amounts payable with respect to such Beneficial
Interest Certificate and for all other purposes and shall not be affected by any
notice to the contrary. The Owner Trustee shall promptly notify the Controlling
Trustees of each request for a registration of transfer of a Beneficial Interest
Certificate.
Section 3.06. Mutilated, Destroyed, Lost or Stolen Beneficial
Interest Certificates. If any Beneficial Interest Certificate shall become
mutilated, destroyed, lost or stolen, AFT shall, upon the written request of the
Certificateholder thereof and presentation of the Beneficial Interest
Certificate or satisfactory evidence of destruction, loss or theft thereof to
the Owner Trustee, issue, and the Owner Trustee shall authenticate and the
deliver in exchange therefor or in replacement thereof, a new Beneficial
Interest Certificate in the name of such Certificateholder and in the same
percentage of residual interest and dated the date of its authentication. If the
Beneficial Interest Certificate being replaced has become mutilated, such
Beneficial Interest Certificate shall be surrendered to the Owner Trustee and
forwarded to AFT by the Owner Trustee. If the Beneficial Interest Certificate
being replaced has been destroyed, lost or stolen, the Certificateholder thereof
shall furnish to AFT or the Owner Trustee (i) such security or indemnity as may
be required by them to save AFT and the Owner Trustee harmless and (ii) evidence
satisfactory to AFT and the Owner Trustee of the destruction, loss or theft of
such Beneficial Interest Certificate and of the ownership thereof. The
applicable Certificateholder will be required to pay any tax or other
governmental charge imposed in connection with such exchange or replacement and
any other expenses (including the fees and expenses of the Owner Trustee)
connected therewith.
Section 3.07. Payments of Transfer Taxes. Upon the transfer of any
Beneficial Interest Certificate pursuant to Section 3.06 hereof, AFT or the
Owner Trustee may require from the party requesting such new Beneficial Interest
Certificate payment of a sum to reimburse AFT or the Owner Trustee for, or to
provide funds for the payment of, any transfer tax or similar governmental
charge payable in connection therewith.
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Section 3.08. Additional Certificates. (a) Subject to Section 2.11
of the Indenture and Section 5.02(f)(iv) of the Indenture, AFT may issue
Additional Certificates pursuant to this Trust Agreement the proceeds of which
in each case shall be used to acquire Additional Aircraft (each, an "Additional
Issuance"). Each issuance of any Additional Certificates shall be authorized
pursuant to one or more Controlling Trustees' Resolutions and shall be effected
only following a Rating Agency Confirmation. Each Additional Certificate shall
be designated generally as a "Beneficial Interest Certificate" for all purposes
under this Trust Agreement and shall constitute a beneficial interest
representing a percentage residual interest in AFT pari passu with all of the
Beneficial Interest Certificates. Upon the issuance of any such Additional
Certificates, the percentage of the residual interest of AFT represented by each
then outstanding Beneficial Interest Certificate shall be adjusted to the
percentage determined by dividing the capital contribution represented by such
Beneficial Interest Certificate by the total capital contribution represented by
all Beneficial Interest Certificates then issued and Outstanding (after giving
effect to such Additional Certificates).
Section 3.09. Special Transfer Provisions.
(a) The Owner Trustee shall register the transfer of a Beneficial
Interest Certificate if such transfer is being made by a proposed transferor who
has (A) checked the box provided for on the Form of Beneficial Interest
Certificate attached hereto as Exhibit A stating, or has otherwise advised AFT
and the Owner Trustee in writing, that the sale has been made in compliance with
the provisions of Rule 144A and (B) provided AFT and the Owner Trustee an
affidavit in the form attached hereto as Exhibit B certifying, or has otherwise
advised AFT and the Owner Trustee in writing, that it is a "citizen of the
United States" as defined in Section 40102(a)(15) of the Federal Aviation Act to
a transferee who has (X) signed the certification provided for on the Form of
Beneficial Interest Certificate attached hereto as Exhibit A stating, or has
otherwise advised AFT and the Owner Trustee in writing, that it is purchasing
the Beneficial Interest for its own account or an account with respect to which
it exercises sole investment discretion and that it and any such account are
QIBs within the meaning of Rule 144A, that it is aware that the sale to it or
such account is being made in reliance on Rule 144A and that it acknowledges
that it has received such information regarding AFT as it has requested pursuant
to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the foregoing representations in order
to claim the exemption from registration provided by Rule 144A and (Y) provided
AFT and the Owner Trustee an affidavit in the form attached hereto as Exhibit B
certifying, or has otherwise advised AFT and the Owner Trustee in writing, that
it is a "citizen of the United States" as defined in Section 40102(a)(15) of the
Federal Aviation Act. No transfer of a Beneficial Interest Certificate or
issuance of any Additional Certificates will be registered by the Owner Trustee
if such transfer would cause AFT to lose the benefits of the safe harbor from
"publicly traded partnership taxable as a corporation for federal income tax
purposes" status provided by Treasury Regulation Section 1.7704-1 or any other
available exemption from such status, determined as if the Class D Notes
evidenced partnership interests in AFT.
(b) The Owner Trustee shall register the transfer of a Beneficial
Interest Certificate by the proposed transferor who has (A) checked the box
provided for on the form of Beneficial Interest Certificate attached hereto as
Exhibit A stating that the Beneficial Interest Certificate is being transferred
other than in accordance with the exemption from registration
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under the Securities Act provided by Rule 144A thereunder and (B) provided AFT
and the Owner Trustee an affidavit in the form attached hereto as Exhibit B
certifying, or has otherwise advised AFT and the Owner Trustee in writing, that
it is a "citizen of the United States" as defined in Section 40102(a)(15) of the
Federal Aviation Act to a transferee who has delivered to the Owner Trustee (X)
an affidavit in the form attached hereto as Exhibit B certifying, or has
otherwise advised AFT and the Owner Trustee in writing, that it is a "citizen of
the United States" as defined in Section 40102(a)(15) of the Federal Aviation
Act, (Y) a certificate substantially in the form of Exhibit C hereto and (Z) an
Opinion of Counsel acceptable to the Controlling Trustees that such transfer is
in compliance with the Securities Act. No transfer of a Beneficial Interest
Certificate will be permitted if such transfer would cause AFT to lose the
benefits of the safe harbor from "publicly traded partnership taxable as a
corporation for federal income tax purposes" status provided by Treasury
Regulation Section 1.7704-1 or any other available exemption from such status,
determined as if the Class D Notes evidenced partnership interests in AFT.
(c) Without the consent of each Certificateholder, which consent may
be withheld in such holder's sole discretion, no Certificateholder may transfer
a Beneficial Interest Certificate (i) to a Person that is a "tax-exempt entity"
within the meaning of Section 168(h)(2) of the Internal Revenue Code of 1986, as
amended (the "Code"), or any successor provision thereto, (ii) to a Person that
is not a "United States person" within the meaning of Code Section 7701(a)(30)
or any successor provision thereto or (iii) if such transfer would result in a
termination of AFT as a partnership pursuant to Section 708 of the Code, or any
successor provision thereto, determined as if the Class D Notes evidenced
partnership interests in AFT.
(d) Absent a Rating Agency Confirmation, no Beneficial Interest
Certificate may be transferred to or held by any Seller, UniCapital Corporation,
any other direct or indirect seller of any Aircraft to the Issuer Group, or any
Affiliate of any thereof other than a Person whose organic documents restrict
its purposes and powers in a manner analagous to the restriction on the purposes
and powers of the Depositors contained in their respective organic documents.
(e) By its acceptance of any Beneficial Interest Certificate, each
Certificateholder of such Beneficial Interest Certificate acknowledges the
restrictions on transfer of such Beneficial Interest Certificate set forth in
this Trust Agreement and in the Private Placement Legend and agrees that it will
transfer such Beneficial Interest Certificate only as provided in this Trust
Agreement. The Owner Trustee shall not register a transfer of any Beneficial
Interest Certificate unless such transfer complies with the restrictions on
transfer of such Beneficial Interest Certificate set forth in this Trust
Agreement. In connection with any transfer of Beneficial Interest Certificates,
each Certificateholder agrees by its acceptance of the Beneficial Interest
Certificates to furnish the Owner Trustee the certifications and legal opinions
described herein to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act. The Owner Trustee shall not be required to determine (but
may rely on a determination made by the Controlling Trustees with respect to)
the sufficiency of any such legal opinions.
The Owner Trustee shall retain copies of all letters, notices and
other written communications received pursuant to this Section 3.09. The
Controlling Trustees shall have the
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right to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Owner Trustee.
Section 3.10. CUSIP, CINS and ISIN Numbers. The Owner Trustee in
issuing the Beneficial Interest Certificates shall, if so requested by the
Equity Trustee, use such "CUSIP", "CINS", "ISIN" or other identification numbers
as are then generally in use and, if so requested, the Owner Trustee shall use
CUSIP numbers, CINS numbers, ISIN numbers or other identification numbers, as
the case may be, in notices of exchange as a convenience to Certificateholders;
provided that any such notice shall state that no representation is made as to
the correctness of such numbers either as printed on the Beneficial Interest
Certificates or as contained in any notice of exchange and that reliance may be
placed only on the other identification numbers printed on the Beneficial
Interest Certificates; provided further, that any failure to use "CUSIP",
"CINS", "ISIN" or other identification numbers in any notice of exchange shall
not affect the validity or sufficiency of such notice.
Section 3.11. Distributions. On the date of the receipt of any
Excluded Payments and, to the extent and only to the extent of any payment
received pursuant to Section 3.08 of the Indenture on each Payment Date, the
Owner Trustee shall distribute the amounts so received pro rata to each
Certificateholder (subject to the final sentence of Section 3.04(a) hereof)
based upon the percentage residual interest represented by its Beneficial
Interest Certificates.
Section 3.12. Subordination of the Securities. Each
Certificateholder (by holding a Beneficial Interest Certificate) hereby
expressly acknowledges and agrees that (i) its right, if any, to receive
dividends or other distributions of Trust Property is subordinate to the rights
of the Holders as provided in the Indenture and (ii) it may not withdraw from
AFT or obtain possession of, or otherwise exercise legal or equitable remedies
with respect to, all or any part of the Trust Property prior to the payment in
full of the principal and interest of, and any other amount owing with respect
to, the Notes from time to time outstanding other than as expressly provided in
the Indenture. Each Certificateholder further acknowledges that the AFT has
agreed, on behalf of the Certificateholders, to the terms of Article X of the
Indenture and confirms that AFT is authorized to do so and that such
Certificateholder is bound thereby.
Section 3.13. Additional Capital. In the event that any
Certificateholder determines that it wishes, by itself or together with one or
more other Certificateholder, to provide funds for AFT either (i) to make any
Issuer Cure Amount payments under Section 3.13 of the Indenture, (ii) to provide
for an Optional Redemption of any subclass of Notes or (iii) following the
Acceleration of the Notes to discharge the Notes in full in accordance with the
Indenture, such Certificateholders shall give notice of such election to the
Trustee and shall provide the requisite funds to the Owner Trustee, who shall
thereupon apply such funds accordingly. Upon the receipt by the Owner Trustee of
any such funds in respect of the discharge of the Notes, the percentage
beneficial interests of all the Certificateholders shall be adjusted to reflect
such funds. Notwithstanding anything to the contrary in this Agreement, any
funds received by the Owner Trustee as reimbursement under the Indenture of an
Issuer Cure Amount shall be distributed only to those Certificateholders who
provided funds for the purpose of making the Issuer Cure Amount payments being
reimbursed, pro rata in proportion to the
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amount so provided. Nothing in this Section 3.13 shall impose or be deemed to
impose any obligation on any Certificateholder to provide any such funds.
ARTICLE IV
TRUSTEES
Section 4.01. Number and Status. The number of Trustees shall be at
least four, and at all times, there shall be three Controlling Trustees (two of
whom shall be Independent Controlling Trustees and one of whom shall be the
Equity Trustee) and the Owner Trustee; provided that the vacancy in the position
of any Trustee pending the replacement of such Trustee shall not prevent any of
the other Trustees from taking such actions as they would be entitled to the
take in accordance with the terms of this Trust Agreement without the approval
of the Trustee whose position is vacant; provided that any and all votes of the
Trustees shall be in accordance with Section 4.07 hereof and no vacancy shall
result in the number of votes required thereby being diminished in any way. The
Owner Trustee and, by its acceptance of its appointment hereunder, each of the
other Trustees accepts the trust created hereby and agrees to perform its duties
in accordance with all of the terms and conditions contained in this Trust
Agreement. Neither the Owner Trustee nor any Controlling Trustee shall have any
duties or responsibilities under this Trust Agreement except to the extent
explicitly set forth in this Trust Agreement or any other Related Document.
Notwithstanding any other provision of this Agreement, each Trustee shall at all
times be a Citizen of the United States.
Section 4.02. Owner Trustee.
(a) Wilmington Trust Company is hereby appointed, and it hereby
accepts appointment as, the Owner Trustee under this Trust Agreement. The Owner
Trustee is entering into this Trust Agreement is to satisfy the requirements of
Section 3807(a) of the Business Trust Act, and it shall have only such duties
and responsibilities as are expressly set forth in this Trust Agreement. Except
as otherwise expressly provided herein, the Owner Trustee shall act only at the
direction of the Controlling Trustees, the Owner Trustee shall have no
responsibility for performing or overseeing the duties of the Controlling
Trustees and the Owner Trustee shall have no liability for following in good
faith any direction of the Controlling Trustees given to it in accordance with
this Trust Agreement or for the acts or ommission of any other Trustee.
(b) The Owner Trustee represents that it is, as required under the
Business Trust Act, an entity that has its principal place of business in the
State of Delaware and otherwise meets the requirements of Applicable Law of the
State of Delaware and that it is a Citizen of the United States. Any successor
to or permitted assigns of the Owner Trustee shall be:
(i) an entity that has its principal place of business in the State
of Delaware, and otherwise meets the requirements of Applicable Law; and
(ii) a Person that is a bank or trust company, a corporation
organized and doing business under the laws of the United States or any state or
territory thereof or of the District of Columbia, with a combined capital and
surplus of at least $75,000,000 (or having a
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combined capital and surplus in excess of $5,000,000 and the obligations of
which, whether now in existence or hereafter incurred, are fully and
unconditionally Guaranteed by a corporation organized and doing business under
the laws of the United States, any state or territory thereof or of the District
of Columbia and having a combined capital and surplus of at least $75,000,000),
authorized under the laws of the United States or any state or territory thereof
to exercise corporate trust powers, subject to supervision by Federal or state
authorities and a Citizen of the United States (such requirements, the
"Eligibility Requirements").
(c) The Owner Trustee may resign upon 30 days prior written notice
to AFT, such resignation to be effective upon the appointment of a successor
Owner Trustee meeting the requirements of Section 4.02(b) hereof. If no
successor has been appointed within such 30-day period, the Owner Trustee may,
at the expense of AFT, petition a court to appoint a successor Owner Trustee
meeting the Eligibility Requirements. The Controlling Trustees may at time upon
30 days prior notice to the Owner Trustee and shall promptly in the event the
Owner Trustee resigns or the office of the Owner Trustee is deemed vacant
replace the Owner Trustee by appointing a successor meeting the foregoing
requirements, such replacement to be effective upon the acceptance of
appointment by the successor Owner Trustee. The successor Owner Trustee shall
notify the Indenture Trustee of its appointment.
(d) Any corporation into which the Owner Trustee may be merged or
converted or with which it may be consolidated, any corporation resulting from
any merger, consolidation or conversion to which the Owner Trustee shall be a
party or any corporation succeeding to the corporate trust business of the Owner
Trustee shall be the successor of the Owner Trustee, if such successor
corporation otherwise meets the Eligibility Requirements, without the need for
the execution or filing of any paper or any further act on the part of the
parties hereto or the Owner Trustee or such successor corporation.
Section 4.03. Controlling Trustees.
(a) The following individual is hereby appointed as the Equity
Trustee and a Controlling Trustee under this Trust Agreement:
Xxxxx X. Xxxxxxx
and the following two individuals are hereby appointed as the Independent
Controlling Trustees:
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx
The Controlling Trustees shall have the duties and authority
provided for in this Trust Agreement and shall direct the affairs of AFT.
(b) Each Independent Controlling Trustee, by its acceptance of its
appointment, represents that it is not at the time of its appointment and has
not been for the twenty-four months prior to its appointment as a Trustee an
employee, officer or director of General Electric Capital Corporation, the
Depositor or any Affiliate of any such Person and agrees that it will not at any
time during its service as a Trustee be such an employee, officer or
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director, provided that an Independent Controlling Trustee may serve as a
trustee or director of another special purpose vehicle another trustee or
director of which has been appointed by General Electric Capital Corporation (or
any of its other Affiliates) as the holder of any indebtedness of such special
purpose vehicle.
(c) Any Controlling Trustee may resign upon 30 days prior written
notice to the Owner Trustee, the other Controlling Trustees and the
Certificateholders, such resignation to be effective upon the appointment of a
successor Controlling Trustee. If no successor has been appointed within such
30-day period, such Controlling Trustee may, at the expense of AFT, petition a
court to appoint a successor Controlling Trustee. The Certificateholders holding
a majority by percentage of the residual interest of AFT may, with or without
cause, by 30 days prior notice delivered to each Trustee, at any time and from
time to time and shall, if the Equity Trustee resigns or the office of the
Equity Trustee is deemed vacant promptly by notice to the other Trustees,
replace the Equity Trustee, such replacement to be effective upon the acceptance
of appointment by the successor Equity Trustee specified by such
Certificateholders in such notice. An Independent Controlling Trustee shall, if
the other Independent Controlling Trustee resigns or the office of such other
Independent Controlling Trustee is deemed vacant, promptly by notice to the
other Trustees replace such Independent Controlling Trustee, such replacement to
be effective upon the acceptance of appointment by the successor Independent
Controlling Trustee specified by such notifying Independent Controlling Trustee
in such notice. In the event both Independent Controlling Trustees resign or the
offices of both Independent Controlling Trustees are deemed vacant, the Equity
Trustee (subject to a Rating Agency Confirmation with respect thereto) shall
appoint successor Independent Controlling Trustees meeting the qualifications
set forth in Section 4.03(b). Any Controlling Trustee who gives notice of
resignation, whose office is deemed vacant or who is the subject of any
replacement notice by the Certificateholders as provided above shall not be
entitled to vote on any matters hereunder. For the avoidance of doubt, the
Equity Trustee may not remove an Independent Controlling Trustee.
Section 4.04. Quorum; Meetings. (a) A meeting of the Controlling
Trustees at which a majority of the Controlling Trustees (or, if less, the
number of Controlling Trustees required by Section 4.07 hereof for the approval
of the matter considered at such meeting) is present shall be competent to
exercise all powers and discretion for the time being exercisable by the
Controlling Trustees. The quorum necessary for the transaction of the business
specified in Section 4.07 shall be the number of Trustees required by the
applicable provision of Section 4.07 A Controlling Trustee, notwithstanding his
interest, may be counted in the quorum present at any meeting at which he is
appointed to hold office or at which the terms of his appointment are arranged,
but he may not vote on his own appointment or the terms thereof.
(b) The Controlling Trustees shall meet together for the dispatch of
business on a quarterly basis, and may adjourn, convene additional meetings and
otherwise regulate their meetings as they think fit. At such meetings the
Controlling Trustees shall review financial information presented to them by the
Administrative Agent, review filings made or to be made with the Commission,
review the provisions of any existing or proposed Swap Agreements and the
performance of any Swap Providers, appoint or dismiss auditors and conduct such
other business as they shall deem appropriate or advisable. Subject to Section
4.07 hereof, questions arising at any meeting shall be determined by a majority
of the Controlling Trustees. A
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Controlling Trustee may, at any time, request a meeting of the Controlling
Trustees by giving each other Controlling Trustee not less than twenty-four
hours' notice of the meeting; provided, that any meeting may be convened at
shorter notice and in such manner as a majority of all the Controlling Trustees
shall approve; provided further, that, notwithstanding the provisions of Section
8.01 hereof, unless otherwise resolved by the Controlling Trustees, notices of
Controlling Trustees' meetings need not be in writing.
(c) If a Trustee is by any means in communication with one or more
other Trustees so that each Trustee participating in the communication can hear
what is said by any other of them, each Trustee so participating in the
communication is deemed to be present at a meeting with the other Trustees so
participating, notwithstanding that all the Trustees so participating are not
present together in the same place.
Section 4.05. Controlling Trustees' Resolution. Each action taken at
a meeting of the Controlling Trustees under Section 4.04 hereof by the requisite
Trustee or requisite number of Trustees (as applicable) shall be reflected in
writing as, and each action taken without a meeting under Section 4.08 hereof by
the requisite Trustee or requisite number of Trustees (as applicable) shall
constitute, a Controlling Trustees' Resolution.
Section 4.06. Notice of Meetings. Any notice of any meeting to be
given to or by any Trustee pursuant to this Trust Agreement shall be in writing,
save as provided in Section 4.05 hereof. Any Trustee present in person at any
meeting of Trustees shall, for all purposes, be deemed to have received due
notice of such meeting and, where requisite, of the purposes for which such
meeting was convened.
Section 4.07. Voting. The Controlling Trustees shall possess and be
entitled in their discretion to exercise all rights and power to vote with
respect to any lawful action to be taken by the Controlling Trustees, except as
otherwise provided herein. For so long as any amount is outstanding or payable
under any debt securities of AFT, the Trustees shall not have the power to take
any action in their capacities as Trustees that would cause AFT or any of its
subsidiaries to be in violation of the terms governing any such debt securities.
Each Controlling Trustee shall have the power to vote an equal portion of all of
the voting rights of AFT. Except as provided below, the vote of at least two of
the Controlling Trustees shall be sufficient.
Notwithstanding any other provision herein to the contrary:
(a) The unanimous affirmative vote of the Controlling Trustees shall
be required to:
(i) cause AFT or any subsidiary of AFT to take any action with
respect to the institution of any proceeding by AFT or any subsidiary of AFT
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee, or other
similar official for it or any substantial part of its property, or seeking
termination of AFT's existence other than pursuant to Section 6.01 or the
existence of any subsidiary of AFT;
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(ii) in the case of any such proceeding instituted against AFT or
any subsidiary of AFT (but not instituted by it), cause AFT or any subsidiary of
AFT to take any action to authorize or consent to such proceedings (including,
without limitation, the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for AFT or any
subsidiary of AFT, or any substantial part of its property, or that of any
subsidiary); and
(iii) cause AFT or any subsidiary of AFT to take any action with
respect to any merger, consolidation, amalgamation, or reorganization of AFT or
any subsidiary of AFT, with or into any other Person, or any conveyance,
transfer or other disposal of (whether in one transaction or a series of
transactions) all or substantially all of the assets of AFT or any subsidiary of
AFT; provided, however, that such unanimous approval is not required so long as
the organizational documents of the resulting Person provide for the unanimous
approval of the Independent Controlling Trustees for the events contemplated by
this Section 4.07 and Section 7.01 hereof;
(b) the affirmative vote of at least two of the Controlling
Trustees, one of whom is an Independent Controlling Trustee and one of whom is
the Equity Trustee, shall be required to approve (i) any action under Section
7.04 of the Servicing Agreement, (ii) any reduction in the amount of the Senior
Note Blockage Amount, the Mezzanine Note Blockage Amount, the Junior Note
Blockage Amount or the Subordinate Note Blockage Amount, (iii) any Sale,
directly or indirectly, of any Aircraft pursuant to clause (v) of Section
5.02(g) of the Indenture and to provide the confirmation required thereby, and
(iv) any Additional Servicing Agreement with UniCapital or any of its
Affiliates;
(c) the affirmative vote of the Equity Trustee shall be sufficient
to approve (i) the purchase or other acquisition, directly or indirectly, of any
Additional Aircraft from any Certificateholder or any of its Affiliates or GECC
or any of its Affiliates, (ii) (A) the issuance by AFT of Additional Notes
pursuant to Section 2.04(d)(iv) hereof and (B) any related increase in the
Senior Note Blockage Amount, the Mezzanine Note Blockage Amount, the Junior Note
Blockage Amount or the Subordinate Note Blockage Amount or (iii) any action
under clause (ii) or (vi) of Section 2.05 hereof, provided that, with respect to
clauses (i) and (ii)(A) above, the Equity Trustee has provided reasonable prior
notice to the Independent Controlling Trustees of such proposed issuance of
Additional Notes and/or purchase of Additional Aircraft by AFT and agreed to
consult with the Independent Controlling Trustees prior to any such issuance of
Additional Notes or purchase of Additional Aircraft; and
(d) the affirmative vote of the Trustees specified in Section 7.01
hereof shall be required for any action under such section.
Section 4.08. Resolutions. A resolution in writing signed by the
requisite Trustee or number of Trustees pursuant to Section 4.07 hereof (as the
case may be) shall be valid and effectual as if it had been passed at a meeting
of the Controlling Trustees duly convened and held. Such resolution (when to be
adopted by more than one Trustee) may consist of two or more documents in like
form each signed by at least one of the number of Trustees.
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Section 4.09. Delegation. Except as otherwise provided in Section
4.07 hereof, the Controlling Trustees may delegate any of their powers to
committees consisting of any one or more or such Controlling Trustees or such
other Persons as they think fit. Any committee so formed shall in the exercise
of the powers so delegated conform to any regulations that may be imposed on it
by the Controlling Trustees. The meetings and proceedings of any such committee
consisting of one or more persons shall be governed by the provisions of this
Trust Agreement regulating the meetings and proceedings of the Controlling
Trustees, so far as the same are applicable and are not superseded by any
regulations made by the Trustees under this Trust Agreement.
Section 4.10. Vacancies. The office of a Trustee shall be deemed
vacated if:
(a) in the case of an Independent Controlling Trustee, such Trustee
ceases to meet the criteria set forth in Section 4.03(b) hereof;
(b) such Trustee dies or is unable or refuses to act;
(c) such Trustee is the subject of any Insolvency Proceeding; or
(d) in the case of the Owner Trustee, the Owner Trustee ceases to
meet the requirements of Section 3807(a) of the Business Trust Act or of Section
4.02(b) hereof.
Section 4.11. Effect of Replacement. Any successor Trustee, however
appointed, shall execute and deliver to the Controlling Trustees an instrument
accepting such appointment and thereupon such successor Trustee, without further
act, shall become vested with all the estates, properties, rights, powers,
duties and trusts of the predecessor Trustee in the trusts hereunder with like
effect as if originally named as such Trustee herein; but nevertheless, upon the
written request of such successor Trustee, such predecessor Trustee shall
execute and deliver an instrument transferring to such successor Trustee, upon
the trusts herein expressed, all the estates, properties, rights, powers and
trusts of such predecessor Trustee.
Section 4.12. Effect of Vacancies. (a) Neither the death,
resignation, retirement, removal, bankruptcy, dissolution, liquidation,
incompetence or incapacity of a Trustee (except, with respect to the Owner
Trustee, as otherwise required by Applicable Law of the State of Delaware) shall
operate to terminate this Trust Agreement or AFT. Any notice or document served
on a Trustee shall, notwithstanding that such Trustee be then incompetent,
disabled, dead or bankrupt and whether or not AFT has notice of his
incompetence, disability, death or bankruptcy, be deemed to have been duly
served on such Trustee. Notwithstanding any of the provisions of this Trust
Agreement, any notice to be given by AFT to a Trustee may be given in any manner
agreed in advance by any such Trustee.
(b) If there is at any time a vacancy in the position of a Trustee,
it is understood that the Certificateholders may not exercise the voting power
of the vacant Trustee position and that such voting power will accordingly
remain suspended during such vacancy.
Section 4.13. Transactions with Trustees. A Trustee may hold any
other office with respect of AFT (other than the office of auditor) in
conjunction with his office of Trustee
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and may act in a professional capacity to AFT on such terms as to tenure of
office, remuneration and otherwise as the Controlling Trustees may determine.
Section 4.14. Interests of Trustees. Subject to Applicable Law of
the State of Delaware, and provided that it has disclosed to the Controlling
Trustees the nature and extent of any of its material interests, a Trustee
notwithstanding his office:
(a) may be a party to, or otherwise interested in, any transaction
or arrangement with AFT or in which AFT is otherwise interested;
(b) may be a director or other officer of, or employed by, or a
party to any transaction or arrangement with, or otherwise interested in, any
body corporate promoted by General Electric Capital Corporation or by any
Affiliate of any Depositor or in which General Electric Capital Corporation or
any Affiliate of any Depositor is otherwise interested or that engages in
transactions similar to those engaged in by AFT and might present a conflict of
interest for such Trustee in discharging his duties (provided that nothing in
this clause (b) shall be construed to limit any Trustee's acting in a like
capacity for any other Issuer Group Member); provided that each Independent
Controlling Trustee must comply with Section 4.03(b) hereof; and
(c) shall not, by reason of his office, be accountable to AFT or any
Certificateholder for any benefit which he derives from any such office or
employment or from any such transaction or arrangement or from any interest in
such body corporate and no such transaction or arrangement shall be liable to be
avoided on the ground of any such interest or benefit.
Section 4.15. Confidentiality Obligations of Trustees. Each
Controlling Trustee will provide a written undertaking to AFT and the Servicer
to substantially the effect that such Controlling Trustee (a) will not provide
to any Person (other than as required by law or, subject to clause (c) below,
another Controlling Trustee) competitively sensitive information that it may
receive from the Servicer pursuant to the Servicing Agreement, (b) will not use
any such competitively sensitive information for any purpose other than in
performing its duties and responsibilities as set forth in this Trust Agreement
and (c) will not provide to any other Controlling Trustee, to the extent that
such other Controlling Trustee is involved in any other business activities that
are competitive with those of the Servicer, any competitively sensitive
information that may be requested by such Controlling Trustee beyond the
information that is normally provided to the Controlling Trustees as a group
pursuant to this Trust Agreement.
Section 4.16. Contract with Trustee. A Controlling Trustee,
notwithstanding its interest, may be counted in the quorum present at any
meeting at which any contract or arrangement in which such Trustee is interested
is considered and, subject to the provisions of Sections 4.15 and 4.17 hereof,
may vote in respect of any such contract or arrangement.
Section 4.17. Validity of Acts. All acts done bona fide by any
meeting of Trustees or by a committee appointed by the Controlling Trustees or
by any Person acting as a Trustee shall, notwithstanding that it is afterwards
discovered that there was some defect in the appointment of any such Trustee,
committee or Person so acting or that they or any of them
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were disqualified or had vacated office or were not entitled to vote, be as
valid as if every such Person had been duly appointed and was qualified and had
continued to be a Trustee or a member of a committee appointed by the Trustees
and had been entitled to vote.
Section 4.18. Minute Book. The Trustees shall cause all resolutions
in writing passed by them in accordance with Section 4.08 hereof and minutes of
proceedings at all meetings of the Trustees and of committees appointed by the
Controlling Trustees to be entered in books kept for the purpose. Any minutes of
a meeting shall be evidence of the proceedings.
Section 4.19. Fees and Remuneration; Directors and Officers
Insurance. The Trustees shall be paid out of the funds of AFT their reasonable
traveling and (subject to the limitation on counsel fees and expenses set forth
in the immediately succeeding sentence) other expenses properly and necessarily
expended by them in attending meetings of the Trustees or otherwise in the
affairs of AFT. Each Independent Controlling Trustee shall be paid by way of
remuneration for its services a sum of $60,000 per annum plus $20,000 per annum
after the Closing Date of each issuance of Additional Notes, subject to a
maximum annual total of $100,000 per Independent Controlling Trustee, which
shall be deemed to accrue from day to day and shall be paid monthly in advance
on each Payment Date and, for the period commencing on the Initial Closing Date
and ending on (but excluding) the first Payment Date, the Initial Closing Date.
The Independent Controlling Trustees shall be entitled to reimbursement for
reasonable fees and expenses of counsel incurred by them in connection with each
issuance of Exchange Notes or Additional Securities, not to exceed (without the
unanimous consent of all Controlling Trustees) $50,000 in the aggregate for both
Independent Controlling Trustees per issuance. The Independent Controlling
Trustees and the Equity Trustee may (but shall not be obligated to), at any
time, agree to increase any of the fees set forth above for inflation, the
acquisition by the Issuer Group of Additional Aircraft, or otherwise. The Owner
Trustee shall be paid such fees as shall be agreed upon in a separate fee
agreement to be entered into by the Owner Trustee and AFT. The Equity Trustee
shall not be entitled to any such compensation or reimbursement from AFT. Unless
the Controlling Trustees shall otherwise unanimously agree, AFT shall maintain,
on behalf of the Controlling Trustees, directors and officers insurance with a
minimum coverage of $40,000,000 and on terms no less favorable than the policy
in effect on the date hereof.
Section 4.20. Trustees May Rely. No Trustee shall incur any
liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper reasonably and in good faith believed by it to be genuine and
signed by the proper party or parties thereto. The Trustees may accept a copy of
a resolution of the board of directors of any corporate entity, certified by the
secretary, an assistant secretary or any other officer of the said entity, as
duly adopted and in full force and effect, as conclusive evidence that such
resolution has been adopted by said board and is in full force and effect. As to
any fact or matter, the manner of ascertainment of which is not specifically
described herein, the Trustees may for all purposes hereof rely on a
certificate, signed by or on behalf of the party executing such certificate, as
to such fact or matter, and such certificate shall constitute full protection of
the Trustees for any action taken or omitted to be taken by them in good faith
in reliance thereon. The Trustees may (a) exercise their powers and perform
their duties by or through such attorneys and agents as they shall appoint with
due care, and they shall not be liable for the acts or omissions of such
attorneys and agents and (b) consult with counsel, accountants and other
experts, and the Trustees shall be entitled to rely upon the
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advice of counsel, accountants and other experts selected by them with due care
and shall be protected by the advice of such counsel in anything done or omitted
to be done in accordance with such advice. In particular, no provision of this
Trust Agreement shall be deemed to impose any duty on any Trustee to take any
action if such Trustee shall have been advised by counsel that such action would
expose it to personal liability or is contrary to the terms hereof, or is
contrary to law. The Owner Trustee and each Independent Controlling Trustee
shall not incur any liability to any Person for any action taken, or any failure
to take action, by the Equity Trustee pursuant to Section 4.07(c).
Section 4.21. Trustees Act Solely as Trustees. In accepting and
performing the trusts created hereby, each Trustee acts solely as trustee
hereunder and not in any individual capacity, and all persons having any claims
against any Trustee by reason of the transactions contemplated hereby shall not
have any recourse to such Trustee in its individual capacity and shall look only
to the property of AFT for payment or satisfaction thereof. The Trustees shall
not be liable for the acts or omissions of any Depositor or Certificateholder.
Section 4.22. No Expenses for the Trustees. No Trustee shall have
any obligation by virtue of this Trust Agreement to spend any of its own funds,
or to take any action which could, in the discretion of such Trustee, result in
any cost or expense being incurred by the Trustee, other than in connection with
its own obligations hereunder.
Section 4.23. No Representations or Warranties as to Certain
Matters. NONE OF THE TRUSTEES, EITHER WHEN ACTING HEREUNDER IN ITS CAPACITY AS
TRUSTEE OR IN ITS INDIVIDUAL CAPACITY, MAKES OR SHALL BE DEEMED TO HAVE MADE (A)
ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE,
AIRWORTHINESS, VALUE, CONDITION, WORKMANSHIP, DESIGN, COMPLIANCE WITH
SPECIFICATIONS, CONSTRUCTION, OPERATION, MERCHANTABILITY OR FITNESS FOR USE FOR
A PARTICULAR PURPOSE OF THE AIRCRAFT OWNED BY AFT, AS TO THE ABSENCE OF LATENT
OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO THE ABSENCE OF ANY
INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF
OBLIGATIONS BASED ON STRICT LIABILITY IN TORT, OR ANY OTHER REPRESENTATION OR
WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THOSE AIRCRAFT OR ANY
PART THEREOF.
ARTICLE V
INDEMNIFICATION OF TRUSTEES
Section 5.01. Liability and Indemnity.
(a) The Trustees shall not be liable to AFT or the
Certificateholders for monetary or other damages for breach of fiduciary duty as
a Trustee; such exculpation shall be to the fullest extent permitted by Delaware
law.
(b) Each Trustee (and the officers, directors, employees, heirs,
executors or administrators of such Trustee) who was or is a party or is
threatened to be made a party to, or is involved in any threatened, pending or
completed action or suit by or in the right of AFT to
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procure a judgment in its favor by reason of the fact that such Person is or was
a Trustee of AFT or is or was serving at the request of AFT as a trustee,
director or officer of another trust, corporation, partnership, joint venture or
other enterprise, shall be indemnified and held harmless by AFT to the fullest
extent permitted by Delaware law.
(c) AFT does hereby assume liability for and agree to indemnify,
reimburse and hold harmless each of the Trustees from any and all losses,
liabilities or expenses that may be imposed on, incurred by or asserted against
any of them arising out of, in connection with or related to their performance
under this Trust Agreement, including any resignation of any Trustee as provided
hereby, and such indemnification shall be to the fullest extent permitted by
Delaware law.
(d) The right to indemnification conferred in this Article 5 shall
also include the right to be paid by AFT the expenses incurred in connection
with any such proceeding in advance of its final disposition to the fullest
extent authorized by Delaware law. The right to indemnification conferred in
this Article 5 shall be a contract right.
Section 5.02. Agents. AFT may, by action of its Controlling
Trustees, provide indemnification to such of the agents of AFT to such extent
and to such effect as the Controlling Trustees shall determine to be appropriate
and authorized by Delaware law.
Section 5.03. Insurance. AFT shall have power to purchase and
maintain insurance on behalf of any Person who is or was a Trustee or agent of
AFT, or is or was serving at the request of AFT as a trustee, director, officer,
employee or agent of another trust, corporation, partnership, joint venture or
other enterprise against any expense, liability or loss incurred by such Person
in any such capacity or arising out of his status as such, whether or not AFT
would have the power to indemnify him against such liability under Delaware law.
Section 5.04. Non-Exclusive Rights. The rights and authority
conferred in this Article V shall not be exclusive of any other right which any
Person may otherwise have or hereafter acquire.
Section 5.05. Survival. Neither the amendment nor repeal of this
Trust Agreement, nor, to the fullest extent permitted by Delaware law, any
adoption or modification of law, shall eliminate or reduce the effect of this
Article 5 in respect of any acts or omissions occurring prior to such amendment,
repeal, adoption or modification.
ARTICLE VI
TERMINATION OF AFT
Section 6.01. Termination of AFT.
(a) AFT shall dissolve only (i) upon satisfaction in full by AFT of
all debt securities issued by AFT in accordance with their respective terms and
(ii) with the consent of all of the Controlling Trustees.
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(b) As soon as is practicable after the occurrence of the events
referred to in Section 6.01(a) above, the Controlling Trustees shall, after
paying or making provision for the payment of all obligations of AFT in
accordance with Applicable Law, file a certificate of cancellation with the
Secretary of State of the State of Delaware, and thereupon AFT shall terminate.
(c) The provisions of Article 5 shall survive termination of AFT.
ARTICLE VII
AMENDMENTS
Section 7.01. Amendments.
(a) Subject always to the provisions of the Indenture and any debt
securities of AFT, this Trust Agreement and the Beneficial Interest Certificates
may only be amended or modified with the consent of the majority in interest of
the Certificateholders, and then only by a written instrument approved and
executed by:
(i) a majority of the Controlling Trustees, one of whom shall be the
Equity Trustee;
(ii) if the amendment affects the rights, powers, duties or
obligations of the Owner Trustee, the Owner Trustee; and
(iii) if the amendment affects (A) the rights, powers, duties or
obligations, including the events contemplated by Section 4.07 hereof, of any
Independent Controlling Trustee, (B) any organizational documents of any Issuer
Subsidiary, to the extent such amendment would affect the rights, powers or
duties of any Independent Controlling Trustee or directors of such subsidiary
comparable to those in Sections 4.07 and 7.01 hereof or (C) any of the
provisions of Sections 2.02(b), 2.07 or 7.01, the Independent Controlling
Trustees,
provided, however, that no such amendment may modify the provisions of this
Trust Agreement or the Beneficial Interest Certificates setting forth the
frequency or the currency of payment of, or the method of calculation of the
amount of, any distribution payable in respect of any Beneficial Interest
Certificates, or reduce the percentage of the Certificateholders required to
approve any amendment or waiver of this Section 7.01 or alter the manner or
priority of payment of the Beneficial Interest Certificates without the consent
of each affected Certificateholder and, so long as any Notes are Outstanding, no
such amendment may modify the provisions of this Trust Agreement relating to the
maintenance of AFT's status as a partnership (and not a publicly traded
partnership taxable as a corporation) for federal income tax purposes (each, a
"Basic Terms Modification").
(b) It shall not be necessary for the consent of the
Certificateholders under this Section 7.01 to approve the particular form of any
proposed amendment or waiver, but it shall be sufficient if such consent
approves the substance thereof. Any such modification approved by the required
Certificateholders will be binding on all Certificateholders.
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(c) Notice of each amendment to this Trust Agreement shall be given
to each of the Rating Agencies.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Notices. All notices, consents, directions, approvals,
instructions, requests and other communications required or permitted by such
agreement to be given to any Person shall be in writing, and any such notice
shall become effective ten days after being deposited in the mails, certified or
registered, return receipt requested, with appropriate postage prepaid for first
class mail, or if delivered by hand or courier service or in the form of a
facsimile, when received (and, in the case of a facsimile, receipt of such
facsimile is confirmed to the sender), and shall be directed to the address or
facsimile number of such Person set forth below:
If to the Owner Trustee:
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Fax: (000) 000-0000
If to the Equity Trustee, to:
Xxxxx X. Xxxxxxx
c/o UniCapital Air Group, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
If to the Independent Controlling Trustees, to:
Xxxxx X. Xxxxxxx
Simat, Helliesen & Xxxxxxx, Inc.
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
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and
Xxxxxxx X. Xxxxxxxx
The Conference Board, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
If to the Certificateholders, to:
Unicapital AFT-I, Inc., / Unicapital AFT-II, Inc.
c/o UniCapital Air Group, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
From time to time any Trustee may designate a new address or number
for purposes of notice hereunder by notice to each of the other Trustee.
Section 8.02. Governing Law. This Trust Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware.
Section 8.03. Jurisdiction. By holding a Beneficial Interest
Certificate, each Certificateholder hereby submits to the jurisdiction of the
Courts of Delaware or the United States Federal Courts sitting therein, in any
action or proceeding brought to enforce or otherwise arising out of or relating
to this Trust Agreement. By holding a Beneficial Interest Certificate, each
Certificateholder irrevocably appoints Corporation Service Corporation, with an
office on the date hereof at 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx,
Xxxxxxxx 00000, as its agent for service of process to receive on behalf of such
Certificateholder service of copies of the summons and complaint and any other
process which may be served in any such action or proceeding. Such service may
be made by mailing or delivering a copy of such process to each
Certificateholder in care of such process agent, at the address of such process
agent stated above, and each Certificateholder, by holding a Beneficial Interest
Certificate, hereby irrevocably authorizes and directs such process agent to
accept such service on its behalf. As an alternative method of service of
process, each Certificateholder, by holding a Beneficial Interest Certificate,
consents to the service of any and all process in any such action or proceeding
by the mailing of copies of such process to such Certificateholder by registered
or certified mail at its address designated in Section 8.01. In addition, each
Certificateholder, by holding a Beneficial Interest Certificate, hereby
irrevocably waives to the fullest extent permitted by law any objection which it
may now or hereafter have to the laying of venue in any such action or
proceeding in the Courts of the State of Delaware or the United States Federal
Courts sitting therein, and hereby further irrevocably waives any claim that any
such forum is an inconvenient forum.
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Section 8.04. Counterparts. This Trust Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
Section 8.05. Agreement. The terms of this Trust Agreement shall be
binding upon and inure to the benefit of and shall be enforceable by the
Depositors and the Trustees and their respective successors and assigns.
Section 8.06. Table of Contents; Headings. The table of contents and
headings of the various articles, sections and other subdivisions of this Trust
Agreement are for convenience of reference only and shall not modify, define or
limit any of the terms or provisions of such agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Trust
Agreement or caused this Trust Agreement to be duly executed by their respective
officer hereunto duly authorized, as of the day and year first above written.
WILMINGTON TRUST COMPANY
By: /s/ Xxxxxx X. XxxXxxxxx
-----------------------------------------
Name: Xxxxxx X. XxxXxxxxx
------------------------------------
Title: Vice President
-----------------------------------
UNICAPITAL AFT-I, INC.
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
UNICAPITAL AFT-II, INC.
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
The undersigned hereby confirm their acceptance of appointment
As the Equity Trustee and a Controlling Trustee:
---------------------------------------
Xxxxx X. Xxxxxxx
As the Independent Controlling Trustees:
---------------------------------------
Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
36
IN WITNESS WHEREOF, the parties hereto have executed this Trust
Agreement or caused this Trust Agreement to be duly executed by their respective
officer hereunto duly authorized, as of the day and year first above written.
WILMINGTON TRUST COMPANY
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
UNICAPITAL AFT-I, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: Vice President
-----------------------------------
UNICAPITAL AFT-II, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: Vice President
-----------------------------------
The undersigned hereby confirm their acceptance of appointment
As the Equity Trustee and a Controlling Trustee:
/s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx
As the Independent Controlling Trustees:
---------------------------------------
Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
37
IN WITNESS WHEREOF, the parties hereto have executed this Trust
Agreement or caused this Trust Agreement to be duly executed by their respective
officer hereunto duly authorized, as of the day and year first above written.
WILMINGTON TRUST COMPANY
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
UNICAPITAL AFT-I, INC.
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
UNICAPITAL AFT-II, INC.
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
The undersigned hereby confirm their acceptance of appointment
As the Equity Trustee and a Controlling Trustee:
---------------------------------------
Xxxxx X. Xxxxxxx
As the Independent Controlling Trustees:
/s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
38
IN WITNESS WHEREOF, the parties hereto have executed this Trust
Agreement or caused this Trust Agreement to be duly executed by their respective
officer hereunto duly authorized, as of the day and year first above written.
WILMINGTON TRUST COMPANY
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
UNICAPITAL AFT-I, INC.
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
UNICAPITAL AFT-II, INC.
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
The undersigned hereby confirm their acceptance of appointment
As the Equity Trustee and a Controlling Trustee:
---------------------------------------
Xxxxx X. Xxxxxxx
As the Independent Controlling Trustees:
---------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
39
EXHIBIT A
FORM OF BENEFICIAL INTEREST CERTIFICATE
THIS BENEFICIAL INTEREST CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR WITH ANY
SECURITIES REGULATORY AUTHORITY IN ANY JURISDICTION AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE CERTIFICATEHOLDER (1) REPRESENTS THAT IT IS EITHER (A) A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) AND A "CITIZEN OF THE UNITED STATES" (AS DEFINED IN SECTION 40102(a)(15) OF
PART A OF SUBTITLE VII OF TITLE 49, UNITED STATES CODE AND IN THE FEDERAL
AVIATION REGULATIONS) OR (B) AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(a)(1), (2), (3), (7) OR (8) OF REGULATION D UNDER THE SECURITIES
ACT) AND A "CITIZEN OF THE UNITED STATES" (AS DEFINED IN SECTION 40102(a)(15) OF
PART A OF SUBTITLE VII OF TITLE 49, UNITED STATES CODE AND IN THE FEDERAL
AVIATION REGULATIONS), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD
REFERRED TO IN RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) IF
APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF
THIS BENEFICIAL INTEREST CERTIFICATE, RESELL OR OTHERWISE TRANSFER THIS
BENEFICIAL INTEREST CERTIFICATE EXCEPT (A) TO AIRCRAFT FINANCE TRUST, A DELAWARE
BUSINESS TRUST ESTABLISHED UNDER THE BELOW REFERRED TO TRUST AGREEMENT DATED AS
OF APRIL 13, 1999 AS AMENDED AND RESTATED UNDER THE AMENDED AND RESTATED TRUST
AGREEMENT DATED AS OF MAY 4, 1999 (THE "AGREEMENT"), OR ANY SUBSIDIARY THEREOF
THAT IS A CITIZEN OF THE UNITED STATES, (B) TO A QUALIFIED INSTITUTIONAL BUYER
THAT IS A CITIZEN OF THE UNITED STATES IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT IS A CITIZEN OF
THE UNITED STATES IN COMPLIANCE WITH SECTION 3.09 OF THE TRUST AGREEMENT, (D) TO
A CITIZEN OF THE UNITED STATES, PURSUANT TO AN EXEMPTION FROM REGISTRATION IN
ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN
EACH CASE (A) THROUGH (E) ABOVE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE IN THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS BENEFICIAL INTEREST
CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THIS BENEFICIAL INTEREST CERTIFICATE WITHIN
THE TIME PERIOD REFERRED TO ABOVE, THE CERTIFICATEHOLDER MUST SUBMIT THIS
BENEFICIAL INTEREST CERTIFICATE TO THE OWNER TRUSTEE. THE TRUST AGREEMENT
CONTAINS A PROVISION REQUIRING THE
40
OWNER TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS BENEFICIAL INTEREST
CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
REFERENCE IS ALSO MADE TO THE PROVISIONS OF SECTION 3.09 OF THE
TRUST AGREEMENT AS TO ADDITIONAL RESTRICTIONS ON THE TRANSFER OF THIS BENEFICIAL
INTEREST CERTIFICATE.
2
41
EXHIBIT A
AIRCRAFT FINANCE TRUST
BENEFICIAL INTEREST CERTIFICATE
No. ____ {CUSIP}{ISIN}{CCN}
$____________
AIRCRAFT FINANCE TRUST, a business trust organized under the laws of
the State of Delaware (the "Issuer"), certifies that ________________________ is
the owner of a beneficial interest equal to _____% (______ per cent) or such
lower percentage as is determined as provided below of the residual interest in
the Issuer, issued pursuant to the Trust Agreement dated as of April 13, 1999 as
amended and restated under the Amended and Restated Trust Agreement dated as of
May 4, 1999 (the "Trust Agreement") between UniCapital AFT-I, Inc. and
UniCapital AFT-II, Inc., each a Delaware corporation (the "Depositors"), and
Wilmington Trust Company, a Delaware banking corporation (the "Owner Trustee").
This Beneficial Interest Certificate is one of a duly authorized
issue of Beneficial Interest Certificates, issued under the Trust Agreement. All
capitalized terms used in this Beneficial Interest Certificate and not defined
herein shall have the respective meanings assigned to such terms in the Trust
Agreement. Reference is made to the Trust Agreement and all agreements
supplemental thereto for a statement of the respective rights and obligations
thereunder of AFT, the Trustees and the Certificateholders. This Beneficial
Interest Certificate is subject to all terms of the Trust Agreement.
The Trust Agreement provides for the issuance from time to time of
Additional Certificates. Upon the issuance of any such Additional Certificates,
the percentage of the residual interest of the Issuer represented by this
Beneficial Interest Certificate shall be adjusted to the percentage determined
by dividing the capital contribution represented by this Beneficial Interest
Certificate by the total capital contribution represented by all Beneficial
Interest Certificates then issued and Outstanding (after giving effect to such
Additional Certificates). Such percentage may also be adjusted as provided in
Section 3.13 of the Trust Agreement.
This Beneficial Interest Certificate is, to the extent and in the
manner provided in the Trust Agreement, subordinate and subject in right of
payment to the prior payment in full of all Senior Claims (as defined in the
Indenture), and this Beneficial Interest Certificate is issued subject to such
provisions. Each Certificateholder of this Beneficial Interest Certificate, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Owner Trustee on his behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
the Trust Agreement and (c) appoints the Owner Trustee his attorney-in-fact for
such purpose.
42
Subject to and in accordance with the terms of the Trust Agreement,
there will be distributed, on the date of the receipt of any Excluded Payment,
and monthly on each Payment Date commencing on June 15, 1999 to the Person in
whose name this Beneficial Interest Certificate is registered at the close of
business on the Record Date with respect to such Payment Date, in the manner
specified in Section 3.04 of the Trust Agreement, such Person's pro rata share
(based on the percentage of the residual interest in the Issuer then represented
by this Beneficial Interest Certificate) of the aggregate amount distributable
to all Certificateholders on such date or Payment Date.
Payments under Section 3.04(a) of the Trust Agreement shall be made
by check mailed to each Certificateholder on the applicable Record Date or, in
the case of Excluded Payments, on the date of payment, at its address appearing
on the Register. Alternatively, in the case of the Depositors or upon
application in writing to the Controlling Trustees, not later than the
applicable Record Date, by any other Certificateholder (which may be granted or
denied in the discretion of the Controlling Trustees), any such payments shall
be made by wire transfer to an account designated by such Certificateholder at a
financial institution in the United States of America.
The Certificateholder of this Beneficial Interest Certificate
agrees, by acceptance hereof, to pay over to the Administrative Agent any money
paid to it in respect of this Beneficial Interest Certificate in the event that
the Administrative Agent, acting in good faith, determines subsequently that
such monies were not paid in accordance with the priority of payment provisions
of the Trust Agreement or as a result of any other mistake of fact or law on the
part of the Administrative Agent in making such payment.
This Beneficial Interest Certificate is issuable only in registered
form. A Certificateholder may transfer this Beneficial Interest Certificate only
by written application to the Owner Trustee stating the name of the proposed
transferee and otherwise complying with the terms of the Trust Agreement. No
such transfer shall be effected until, and such transferee shall succeed to the
rights of a Certificateholder only upon, final acceptance and registration of
the transfer by the Owner Trustee in the Register. When this Beneficial Interest
Certificate is presented to the Owner Trustee with a request to register the
transfer or to exchange it for a Beneficial Interest Certificate having the same
percentage residual interest, the Owner Trustee shall register the transfer or
make the exchange as requested if its requirements for such transactions are met
(including, in the case of a transfer, that such Beneficial Interest Certificate
is duly endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee duly executed by the Certificateholder thereof
or by an attorney who is authorized in writing to act on behalf of the
Certificateholder). No service charge shall be made for any registration of
transfer or exchange of this Beneficial Interest Certificate, but the party
requesting such new Beneficial Interest Certificate or Beneficial Interest
Certificates may be required to pay a sum sufficient to cover any transfer tax
or similar governmental charge payable in connection therewith.
Prior to the registration of transfer of this Beneficial Interest
Certificate, the Issuer and the Owner Trustee may deem and treat the Person in
whose name this Beneficial Interest Certificate (as of the day of determination
or as of such other date as may be specified in the Trust Agreement) is
registered as the absolute owner and Certificateholder hereof for the purpose
2
43
of receiving payment of all amounts payable with respect to this Beneficial
Interest Certificate and for all other purposes, and neither the Issuer nor the
Owner Trustee shall be affected by notice to the contrary.
The Trust Agreement permits the amendment or modification of the
Trust Agreement and the Beneficial Interest Certificate by AFT with the consent
of the majority in interest of the Certificateholders on the date of any vote of
such Certificateholders and certain of the Trustees as provided in the Trust
Agreement; provided that, no Basic Terms Modification shall be effected without
the consent of each Certificateholder affected thereby. Any such amendment or
modification shall be binding on every Certificateholder, whether or not
notation thereof is made upon this Beneficial Interest Certificate.
The Issuer is permitted by the Trust Agreement, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee under the Indenture and the Trustees and the Certificateholders under
the Trust Agreement.
This Beneficial Interest Certificate shall in all respects be
governed by, and construed in accordance with, the laws of the State of
Delaware.
3
44
IN WITNESS WHEREOF, AFT has caused this Beneficial Interest
Certificate to be signed manually or by facsimile by the Owner Trustee.
Date:______________ AIRCRAFT FINANCE TRUST
By: Wilmington Trust Company,
not in its individual capacity but solely
as the Owner Trustee
_____________________________________________
Name:
Title:
4
45
[FORM OF] TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No. __________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including zip code of assignee)
the within Beneficial Interest Certificate and all rights thereunder, hereby
irrevocably constituting and
appointing ___________________________________ attorney to transfer said
Beneficial Interest Certificate on the books of AFT with full power of
substitution in the premises.
Date:
{Signature of Transferor}
NOTE: The signature to this assignment
must correspond with the name as
written upon the face of the
within-mentioned instrument in
every particular, without
alteration or any change
whatsoever.
Date:
In connection with any transfer of this Beneficial Interest
Certificate, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
{Check One}
{ } (a) this Beneficial Interest Certificate is being transferred
in compliance with the exemption from registration under the
Securities Act of 1933 provided by Rule 144A thereunder.
or
{ } (b) this Beneficial Interest Certificate is being transferred
other than in accordance with (a) above and documents are being
furnished that comply with the conditions of transfer set forth
in this Beneficial Interest Certificate and the Trust Agreement.
If none of the foregoing boxes is checked or if any of the other
conditions to transfer set forth in Section 3.09 of the Trust Agreement are not
satisfied, the Owner Trustee
46
shall not be obligated to register this Beneficial Interest Certificate in the
name of any Person other than the Certificateholder hereof unless and until the
conditions to any such transfer of registration set forth herein and in Section
3.09 of the Trust Agreement shall have been satisfied.
Date:
NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of the
within-mentioned instrument in every
particular, without alteration or
any change whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing this
Beneficial Interest Certificate for its own account or an account with respect
to which it exercises sole investment discretion and that it and any such
account is a "qualified institutional buyer" within the meaning of Rule 144A
under the Securities Act of 1933 and is aware that the sale to it is being made
in reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
_____________________________________________
Dated:
NOTICE: to be executed by an executive
officer
2
47
EXHIBIT B
AFFIDAVIT OF CITIZENSHIP
)
) ss.
)
I, ________________, being duly sworn, depose and say, that:
1. I am a ________________ of [CERTIFICATEHOLDER], a _____________ (the
"Certificateholder");
2. The president and two-thirds or more of the board of directors and
other managing officers of the Certificateholder are individuals who are
citizens of the United States of America and at least seventy-five percent (75%)
of the voting interest of the Certificateholder is owned or controlled by
persons or corporations who are citizens of the United States of America
OR
The Certificateholder is a partnership each of whose partners is an
individual who is a citizen of the United States, and
3. Accordingly, the Certificateholder is a "citizen of the United States"
as defined in Section 40102(a)(15) of the Federal Aviation Act.
SWORN to this ____ day of ____________, ____.
[CERTIFICATEHOLDER]
By: ________________________________
Name:
Title:
SWORN AND SUBSCRIBED TO
Before me this ________ day
of ____________, _____
_______________________
Notary Public
My Commission Expires on _________________
48
EXHIBIT C
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
_____, ____
AIRCRAFT FINANCE TRUST
c/o Wilmington Trust Company
Attention: Corporate Trust Administrator
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
In connection with our proposed purchase of the Beneficial Interest
Certificate of AIRCRAFT FINANCE TRUST (the "Issuer"), we confirm that:
1. We have received a copy of the Trust Agreement dated as of April 13,
1999 as amended and restated under the Amended and Restated Trust Agreement
dated May 4, 1999 (the "Trust Agreement") relating to the Beneficial Interest
Certificate and such other information as we deem necessary in order to make our
investment decision. We acknowledge that we have read and agreed to the matters
stated therein.
2. We understand that any subsequent transfer of the Beneficial Interest
Certificate is subject to certain restrictions and conditions set forth in the
Trust Agreement and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Beneficial Interest Certificate except in
compliance with such restrictions and conditions and the Securities Act of 1933
(the "Securities Act").
3. We understand that the offer and sale of the Beneficial Interest
Certificate has not been registered under the Securities Act, that the
Beneficial Interest Certificate will only be in the form of definitive physical
certificates and that the Beneficial Interest Certificate may not be offered or
sold except as permitted in the following sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated,
that if we should sell a Beneficial Interest Certificate in the future, we will
do so only (1) (A) to the Issuer or any subsidiary thereof that is a citizen of
the United States, (B) to a "qualified institutional buyer" in compliance with
Rule 144A under the Securities Act (and as defined therein) that is a "citizen
of the United States" (as defined in Section 40102(a)(15) of Part A of Subtitle
VII of Xxxxx 00, Xxxxxx Xxxxxx Code and in the Federal Aviation Regulations),
(C) to an institutional "accredited investor" (as defined below) that is also a
"citizen of the United States" (as defined in Section 40102(a)(15) of Part A of
Subtitle VII of Xxxxx 00, Xxxxxx Xxxxxx Code and in the Federal Aviation
Regulations) that, prior to such transfer, furnishes to the Owner Trustee (as
defined in
49
the Trust Agreement) a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the Beneficial Interest
Certificate and an opinion of counsel acceptable to the Owner Trustee that such
transfer is in compliance with the Securities Act, (D) to a citizen of the
United States, pursuant to the exemption from registration provided by Rule 144
under the Securities Act (if available) or (E) pursuant to an effective
registration statement under the Securities Act, and we further agree to provide
to any person purchasing any Beneficial Interest Certificate from us a notice
advising such purchaser that resales of the Beneficial Interest Certificates are
restricted as stated herein and (2) in each case, in accordance with any
applicable securities laws of any state in the United States or any other
applicable jurisdiction and in accordance with the legend to be set forth in the
Beneficial Interest Certificates, which will reflect the substance of this
paragraph.
4. We understand that, on any proposed resale of any Beneficial Interest
Certificates, we will be required to furnish to the Owner Trustee such
certifications, legal opinions and other information as the Owner Trustee may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3), (7) or (8) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Beneficial
Interest Certificates, and we and any accounts for which we are acting are each
able to bear the economic risks of our or their investment.
6. We are acquiring the Beneficial Interest Certificates purchased by us
for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
7. We are not acquiring the Beneficial Interest Certificates with a view
to distribution thereof or with any present intention of offering or selling the
Beneficial Interest Certificates, except as permitted above, provided that the
disposition of our property and property of any accounts for which we are acting
as fiduciary shall remain at all times within our control.
8. We understand the additional restrictions on transfer contained in
Section 3.09 of the Trust Agreement.
An opinion of counsel to the effect that the purchase of this Beneficial
Interest Certificate does not require registration under the Securities Act is
attached to this certificate. You, the Issuer and the Owner Trustee are entitled
to rely upon this letter and are irrevocably authorized to produce this letter
or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours,
By: ________________________________
Name:
Title:
2
