Exhibit 4(a)(1)
________________________________________________________________________________
AMENDED AND RESTATED
TRUST AGREEMENT
[NW 1997 L]
Dated as of May 1, 1998
between
SUMITOMO BANK CAPITAL MARKETS, INC.,
Owner Participant
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Owner Trustee
One British Aerospace Avro 146-RJ85A
Aircraft
________________________________________________________________________________
AMENDED AND RESTATED
TRUST AGREEMENT
[NW 1997 L]
This AMENDED AND RESTATED TRUST AGREEMENT [NW 1997 L] dated as of
May 1, 1998 between SUMITOMO BANK CAPITAL MARKETS, INC., a Delaware
corporation (the "Owner Participant"), and FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association (in its individual capacity,
"FSB") and otherwise not in its individual capacity but solely as
trustee hereunder (herein in such capacity with its permitted successors
and assigns called the "Owner Trustee"), is an amendment and restatement
in its entirety of the Trust Agreement [NW 1997 L], dated as of
September 25, 1997, between Northwest Airlines, Inc. (the "Original
Trustor") and FSB, in its individual capacity and as Owner Trustee (said
Trust Agreement, prior to being amended and restated hereby, the
"Original Trust Agreement", and as so amended and restated in its
entirety hereby, and as hereafter from time to time supplemented or
amended, this or the "Trust Agreement");
WHEREAS, pursuant to the Original Trust Agreement the Original
Trustor created a trust for, among other things, the purpose of
borrowing for the Pass Through Trustee and issuing Secured Certificates
in respect of such borrowing, the proceeds of which issuance were
initially held by the Indenture Trustee on behalf of the Owner Trustee
in the Collateral Account and released, subject to the proviso to
Section 1(d) of the Original Participation Agreement, on the Delivery
Date in order to finance a portion of Lessor's Cost of the Aircraft, to
acquire the Aircraft from Lessee on the Delivery Date, to lease the
Aircraft to Lessee on the Delivery Date and to receive the benefits
herein provided;
WHEREAS, concurrently with the execution and delivery of this Trust
Agreement, the Original Trustor is transferring the Beneficial Interest
to the Owner Participant pursuant to the Assignment and Assumption
Agreement;
WHEREAS, the trust created under the Original Trust Agreement shall
continue and shall not be deemed liquidated or terminated by this Trust
Agreement; and
WHEREAS, the Owner Participant and FSB now desire to amend and
restate the Original Trust Agreement in its entirety on the terms and
conditions herein provided;
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein, FSB and the Owner Participant hereby amend
and restate the Original Trust Agreement in its entirety and agree as
follows:
W I T N E S S E T H:
ARTICLE I
DEFINITIONS AND TERMS
SECTION 1.01. Certain Definitions. Unless the context shall
otherwise require and except as contained in this Section 1.01, the
capitalized terms used herein shall have the respective meanings
assigned thereto in the Lease (as hereinafter defined) for all purposes
hereof. All definitions contained in this Section 1.01 shall be equally
applicable to both the singular and plural forms of the terms defined.
For all purposes of this Trust Agreement the following terms shall have
the following meanings:
"Control Rights" has the meaning ascribed to such term in Section
12.01 hereof.
"Excluded Payments" has the meaning ascribed to such term in the
Trust Indenture.
"Indenture Event of Default" has the meaning which the term "Event
of Default" has in the Trust Indenture.
"Lease" means that certain Lease Agreement [NW 1997 L], dated as of
the date hereof, between the Owner Trustee and Lessee, as said Lease
Agreement may from time to time be supplemented or amended, or the terms
thereof waived or modified, to the extent permitted by, and in
accordance with, the terms of this Trust Agreement. The term "Lease"
shall also include each Lease Supplement from time to time entered into
pursuant to the terms of the Lease.
"Lease Event of Default" has the meaning which the term "Event of
Default" has in the Lease.
"Lessee" means Northwest Airlines, Inc., a Minnesota corporation,
and its permitted successors and assigns.
"Owner Participant" means the Owner Participant and each Subsequent
Owner Participant to the extent that the same shall, at the relevant
time, have an Ownership Interest.
"Ownership Interest" means, in the case of each Owner Participant,
the percentage of its undivided beneficial interest in the Trust Estate
created by this Trust Agreement, which percentage shall be 100%.
"Participation Agreement" has the meaning ascribed to such term in
the Lease.
"Replacement Airframe" has the meaning ascribed to such term in the
Trust Indenture.
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"Replacement Engine" has the meaning ascribed to such term in the
Trust Indenture.
"Subsequent Owner Participant" means any corporation to which the
Owner Participant or any transferee from the Owner Participant or any
Subsequent Owner Participant shall have transferred at any time after
the Delivery Date all of the undivided right, title and interest
originally held by the Owner Participant in this Trust Agreement, the
Trust Estate and the Participation Agreement, to the extent permitted by
Section 8.01 of this Trust Agreement and Section 8 of the Participation
Agreement, provided that any such transfer: (i) shall be effected by a
written agreement, in form and substance reasonably satisfactory to the
Owner Trustee in its individual capacity, among such transferee, its
transferor and the Owner Trustee, which shall provide that such
transferee thereby becomes a party to, and beneficiary of, this Trust
Agreement and an Owner Participant for all purposes hereof and that such
transferee assumes all of the obligations of its transferor under this
Trust Agreement; and (ii) so long as the Lease shall be in effect or any
Secured Certificates remain unpaid, such transferee and its transferor
shall have complied with all of the terms of Section 8(n) of the
Participation Agreement.
"Trust Estate" means all estate, right, title and interest of the
Owner Trustee in and to the Aircraft, the Lease, any Lease Supplement,
the Purchase Agreement, the Purchase Agreement Assignment, the Residual
Agreement, the Xxxx of Sale and the FAA Xxxx of Sale, including, without
limitation, all amounts of Basic Rent and Supplemental Rent including
without limitation insurance proceeds (other than insurance proceeds
payable to or for the benefit of the Owner Trustee, for its own account
or in its individual capacity, the Owner Participant, the Loan
Participants or the Indenture Trustee) and requisition, indemnity or
other payments of any kind for or with respect to the Aircraft (except
amounts owing to the Owner Participant, to the Indenture Trustee, to the
Owner Trustee, in its individual capacity, or to the Loan Participants
or any other holder of a Secured Certificate, or to any of their
respective directors, officers, employees, servants and agents, pursuant
to Section 7 of the Participation Agreement). Notwithstanding the
foregoing, "Trust Estate" shall not include any Excluded Payments.
"Trust Indenture Estate" has the meaning ascribed to such term in
the Trust Indenture.
"Trust Office" shall mean the principal corporate trust office of
the Owner Trustee at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000,
Attention: Corporate Trust Department, or the principal corporate trust
office of any successor Owner Trustee.
"Trust Supplement" means a supplement to the Trust Indenture and to
this Trust Agreement in substantially the form of Exhibit A to the Trust
Indenture which shall particularly describe the Aircraft, and any
Replacement Airframe and Replacement Engine included in the property of
the Owner Trustee covered by this Trust Agreement.
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ARTICLE II
AUTHORITY TO EXECUTE CERTAIN OPERATIVE DOCUMENTS;
DECLARATION OF TRUST
SECTION 2.01. Authority to Execute Documents. The Owner
Participant hereby authorizes and directs the Owner Trustee to execute
and deliver the Operative Documents and any other agreements,
instruments or documents to which the Owner Trustee is a party in the
respective forms thereof in which delivered from time to time by the
Owner Participant to the Owner Trustee for execution and delivery and,
subject to the terms hereof, to perform its duties and, upon
instructions from the Owner Participant, exercise its rights under said
Operative Documents in accordance with the terms thereof.
SECTION 2.02. Declaration of Trust. The Owner Trustee hereby
declares that it shall continue to hold the Trust Estate upon the trusts
hereinafter set forth for the use and benefit of the Owner Participant,
subject, however, to the provisions of and the Lien created by the Trust
Indenture and to the provisions of the Lease.
ARTICLE III
ACCEPTANCE AND DELIVERY OF AIRCRAFT
SECTION 3.01. Acceptance of Aircraft. The Owner Participant
hereby authorizes and directs the Owner Trustee to, and the Owner
Trustee agrees for the benefit of the Owner Participant that it will, on
the Delivery Date, subject to due compliance with the terms of Section
3.02 hereof:
(a) purchase the Aircraft pursuant to the Participation
Agreement and the Xxxx of Sale;
(b) accept from Lessee the delivery of the Xxxx of Sale and
the FAA Xxxx of Sale;
(c) cause the Aircraft to be leased to Lessee under the Lease,
and in furtherance thereof execute and deliver a Lease Supplement
covering the Aircraft;
(d) execute and deliver the Trust Supplement covering the
Aircraft;
(e) [Intentionally Omitted];
(f) execute and deliver the financing statements referred to in
Section 5(a)(vi) of the Participation Agreement, together with all other
agreements, documents and instruments referred to in Section 5 of the
Participation Agreement to which the Owner Trustee is a party; and
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(g) effect the registration of the Aircraft in the name of the
Owner Trustee by filing or causing to be filed with the FAA: (i) the
FAA Xxxx of Sale; (ii) an application for registration of the Aircraft
in the name of the Owner Trustee (including without limitation an
affidavit from the Owner Trustee in compliance with the provisions of 14
C.F.R. Section 47.7(c)(2)(ii) (1979)); and (iii) the Trust Agreement.
SECTION 3.02. Conditions Precedent. The right and obligation
of the Owner Trustee to take the action required by Section 3.01 hereof
with respect to the Aircraft shall be subject to the following
conditions precedent:
(a) the Owner Participant shall have made the full amount of its
Commitment set forth in Schedule II of the Participation Agreement
available to the Owner Trustee, in immediately available funds, in
accordance with Section 1 of the Participation Agreement; and
(b) the terms and conditions of Section 5 of the Participation
Agreement, insofar as they relate to the Aircraft, shall have been
complied with in a manner satisfactory to the Owner Participant and the
Owner Trustee.
SECTION 3.03. Authorization in Respect of a Termination of
the Lease and Assumption of the Secured Certificates. The Owner
Participant hereby authorizes and directs the Owner Trustee to, and the
Owner Trustee agrees for the benefit of the Owner Participant that it
will, take the actions specified to be taken by the Owner Trustee in
Section 8(x) of the Participation Agreement upon Lessee's purchasing the
Aircraft pursuant to Section 19(d) of the Lease and upon Lessee's
assuming the indebtedness evidenced by the Secured Certificates in
accordance with the provisions of such Section 8(x).
SECTION 3.04. Authorization in Respect of a Replacement
Airframe or Replacement Engines. The Owner Participant hereby
authorizes and directs the Owner Trustee to, and the Owner Trustee
agrees for the benefit of the Owner Participant that it will, in the
event of a Replacement Airframe and Replacement Engines, if any, being
substituted pursuant to Section 10(a) of the Lease, or a Replacement
Engine being substituted pursuant to Section 10(b) of the Lease, subject
to due compliance with the terms of Section 10(a) or 10(b) of the Lease,
as the case may be:
(a) to the extent not previously accomplished by a prior
authorization, authorize a representative or representatives of the
Owner Trustee (who shall be an employee or employees of Lessee) to
accept delivery of the Replacement Airframe and Replacement Engines, if
any, or the Replacement Engines;
(b) accept from Lessee or other vendor of the Replacement Airframe
and Replacement Engines, if any, or the Replacement Engine a xxxx of
sale or bills of sale (if tendered), and the invoice, if any, with
respect to the Replacement Airframe and Replacement Engines, if any, or
the Replacement Engine being furnished pursuant to Section 10(a) or (b)
of the Lease;
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(c) in the case of a Replacement Airframe, make application
to the Federal Aviation Administration for the registration in the
name of the Owner Trustee of the Aircraft of which such Replacement
Airframe is a part;
(d) execute and deliver a Lease Supplement and a Trust Supplement
covering (i) the Aircraft of which such Replacement Airframe is part or
(ii) such Replacement Engine, as the case may be;
(e) transfer its interest in (without recourse except as to
obligations in respect of Lessor Liens, including for this purpose Liens
that would be Lessor Liens but for the proviso in the definition of
Lessor Liens) and to the Airframe and Engines (if any) or the Engine
being replaced to Lessee;
(f) request in writing that the Indenture Trustee execute and
deliver to Lessee appropriate instruments to release the Airframe and
Engines or engines (if any) or the Engine or engine being replaced from
the lien created under the Trust Indenture and release the Purchase
Agreement and the Purchase Agreement Assignment (solely with respect to
such replaced Airframe and Engines, if any, or Engine) from the
assignment and pledge under the Trust Indenture; and
(g) upon instructions from the Owner Participant, take such
further action as may be contemplated by clauses (A) and (B) of the
third paragraph of Section 10(a) of the Lease or clauses (ii) and
(iii) of Section 10(b) of the Lease, as the case may be.
SECTION 3.05. Trust Agreement Remaining in Full Force and
Effect. In the event of the substitution of a Replacement Airframe for
the Airframe or the substitution of a Replacement Engine for any Engine
or engine, all provisions of this Trust Agreement relating to such
replaced Airframe or Engine or engine shall be applicable to such
Replacement Airframe or Replacement Engine with the same force and
effect as if such Replacement Airframe or Replacement Engine were the
same airframe or engine as the Airframe or Engine being replaced but for
the Event of Loss with respect to such Airframe or Engine.
SECTION 3.06. Authorization in Respect of a Return of an
Engine. The Owner Participant hereby authorizes and directs the Owner
Trustee to, and the Owner Trustee agrees for the benefit of the Owner
Participant that it will, in the event of an engine being transferred to
the Owner Trustee pursuant to Section 5(b) of the Lease, subject to due
compliance with the terms of such Section 5(b):
(a) accept from Lessee the xxxx of sale with respect to such
engine contemplated by such Section 5(b) (if tendered);
(b) transfer its interest in (without recourse except as to
obligations in respect of Lessor Liens, including for this purpose Liens
that would be Lessor Liens but for the proviso in the definition of
Lessor Liens) and to an Engine to Lessee as contemplated by such Section
5(b); and
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(c) request in writing that the Indenture Trustee execute and
deliver to Lessee appropriate instruments to release the Engine
being transferred to Lessee pursuant to such Section 5(b) from the
lien of the Trust Indenture and to release the Purchase Agreement
and the Purchase Agreement Assignment (solely with respect to such
Engine) from the assignment and pledge under the Trust Indenture.
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE TRUST ESTATE
SECTION 4.01. Distribution of Payments. (a) Payments to
Indenture Trustee. Until the Trust Indenture shall have been discharged
pursuant to Section 10.01 thereof, all Basic Rent, Supplemental Rent,
insurance proceeds and requisition or other payments of any kind
included in the Trust Estate (other than Excluded Payments) payable to
the Owner Trustee shall be payable directly to the Indenture Trustee
(and if any of the same are received by the Owner Trustee shall upon
receipt be paid over to the Indenture Trustee without deduction, set-off
or adjustment of any kind) for distribution in accordance with the
provisions of Article III of the Trust Indenture.
(b) Payments to Owner Trustee; Other Parties. After the Trust
Indenture shall have been discharged pursuant to Section 10.01 thereof, any
payment of the type referred to in Section 4.01(a) hereof (other than
Excluded Payments) received by the Owner Trustee, any payments received from
the Indenture Trustee other than as specified in Section 4.01(d) hereof and
any other amount received as part of the Trust Estate and for the application
or distribution of which no provision is made herein, shall be distributed
forthwith upon receipt by the Owner Trustee in the following order of
priority: first, so much of such payment as shall be required to reimburse
the Owner Trustee for any expenses not otherwise reimbursed as to which the
Owner Trustee is entitled to be so reimbursed pursuant to the provisions
hereof shall be retained by the Owner Trustee; second, so much of the
remainder for which provision as to the application thereof is contained in
the Lease or any of the other Operative Documents shall be applied and
distributed in accordance with the terms of the Lease or such other Operative
Document; and third, the balance, if any, shall be paid to the Owner
Participant.
(c) Certain Distributions to Owner Participant. All amounts from
time to time distributable by the Indenture Trustee to the Owner Participant
pursuant to the Trust Indenture shall, if paid to the Owner Trustee, be
distributed by the Owner Trustee to the Owner Participant in accordance with
the provisions of Article III of the Trust Indenture.
(d) Excluded Payments. Any Excluded Payments received by the
Owner Trustee shall be paid by the Owner Trustee to the Person to whom such
Excluded Payments are payable under the provisions of the Participation
Agreement, the Tax Indemnity Agreement or the Lease.
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SECTION 4.02. Method of Payments. The Owner Trustee shall
make distributions or cause distributions to be made to the Owner
Participant pursuant to this Article IV by transferring by wire transfer
the amount to be distributed to such account or accounts of the Owner
Participant as the Owner Participant may designate from time to time in
writing to the Owner Trustee. Notwithstanding the foregoing, the Owner
Trustee will, if so requested by the Owner Participant in writing, pay
any or all amounts payable to the Owner Participant pursuant to this
Article IV either (i) by crediting such amount or amounts to an account
or accounts maintained by the Owner Participant with the Owner Trustee
in its individual capacity in immediately available funds, (ii) by
payment at the Trust Office of the Owner Trustee, in immediately
available funds, or (iii) by mailing an official bank check or checks in
such amount or amounts payable to the Owner Participant at such address
as the Owner Participant shall have designated in writing to the Owner
Trustee.
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
SECTION 5.01. Notice of Event of Default. If the Owner Trustee
shall have knowledge of a Lease Event of Default or an Indenture Event
of Default (or an event which with the passage of time or the giving of
notice or both would constitute a Lease Event of Default or an Indenture
Event of Default) the Owner Trustee shall give to the Owner Participant
prompt telephonic or telecopy notice thereof followed by prompt
confirmation thereof by certified mail, postage prepaid, provided that
(i) in the case of an event which with the passage of time would
constitute an Indenture Event of Default referred to in paragraph (c) of
Section 4.02 of the Trust Indenture, such notice shall in no event be
furnished later than ten (10) days after the Owner Trustee shall first
have knowledge of such event and (ii) in the case of a misrepresentation
by the Owner Trustee which with the passage of time would constitute an
Indenture Event of Default referred to in paragraph (d) of Section 4.02
of the Trust Indenture, such notice shall in no event be furnished later
than ten (10) days after the Owner Trustee shall first have knowledge of
such event. Subject to the terms of Section 5.03 hereof, the Owner
Trustee shall take such action or shall refrain from taking such action,
not inconsistent with the provisions of the Trust Indenture, with
respect to such Lease Event of Default, Indenture Event of Default or
other event as the Owner Trustee shall be directed in writing by the
Owner Participant. If the Owner Trustee shall not have received
instructions as above provided within twenty (20) days after the mailing
of such notice to the Owner Participant, the Owner Trustee until
instructed otherwise in accordance with the preceding sentence may, but
shall be under no duty to, take or refrain from taking such action with
respect to such Lease Event of Default, Indenture Event of Default or
other event, not inconsistent with the provisions of the Trust
Indenture, as it shall deem advisable in the best interests of the Owner
Participant. For all purposes of this Trust Agreement, the Lease and
the other Operative Documents, in the absence of actual knowledge by an
officer of FSB in the Corporate Trust Department, the Owner Trustee
shall not be deemed to have knowledge of a Lease Event of Default, an
Indenture Event of Default or other event referred to in this Section
5.01 unless notified in writing by the Indenture Trustee, the Owner
Participant or Lessee.
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SECTION 5.02. Action Upon Instructions. Subject to the terms of
Sections 5.01 and 5.03 hereof, upon the written instructions at any time
and from time to time of the Owner Participant, the Owner Trustee will
take such of the following actions, not inconsistent with the provisions
of the Trust Indenture, as may be specified in such instructions:
(i) give such notice or direction or exercise such right, remedy or
power hereunder or under any of the Operative Documents to which the
Owner Trustee is a party or in respect of all or any part of the Trust
Estate as shall be specified in such instructions (including entering
into agreements referred to in clause (i) of the definition of
"Subsequent Owner Participant"); (ii) take such action to preserve or
protect the Trust Estate (including the discharge of Liens) as may be
specified in such instructions; (iii) approve as satisfactory to it all
matters required by the terms of the Lease or the other Operative
Documents to be satisfactory to the Owner Trustee, it being understood
that without written instructions of the Owner Participant, the Owner
Trustee shall not approve any such matter as satisfactory to it (it
being understood that the provisions of Sections 3.03, 3.04 and 3.06
hereof do not constitute instructions by the Owner Participant for the
Owner Trustee to approve of or consent to the matters to be approved of
or consented to by the Owner Trustee in the sections of the Lease
referred to in Sections 3.03, 3.04 or 3.06 hereof); and (iv) subject to
the rights of Lessee under the Operative Documents, after the expiration
or earlier termination of the Lease, deliver the Aircraft to the Owner
Participant in accordance with such instructions, convey all of the
Owner Trustee's right, title and interest in and to the Aircraft for
such amount, on such terms and to such purchaser or purchasers as shall
be designated in such instructions, or net lease the Aircraft on such
terms and to such lessee or lessees as shall be designated in such
instructions.
SECTION 5.03. Indemnification. The Owner Trustee shall not be
required to take any action under Section 5.01 (other than the giving of
the notices referred to therein) or 5.02 hereof unless the Owner Trustee
shall have been indemnified by the Owner Participant, in manner and form
satisfactory to the Owner Trustee, against any liability, cost or
expense (including reasonable counsel fees and disbursements) which may
be incurred in connection therewith; and, if the Owner Participant shall
have directed the Owner Trustee to take any such action or refrain from
taking any action, the Owner Participant agrees to furnish such
indemnity as shall be required and, in addition, to the extent not
otherwise paid pursuant to the provisions of the Lease or the
Participation Agreement, to pay the reasonable compensation of the Owner
Trustee for the services performed or to be performed by it pursuant to
such direction and any fees and disbursements of counsel or agents
employed by the Owner Trustee in connection therewith. The Owner
Trustee shall not be required to take any action under Section 5.01 or
5.02 hereof if the Owner Trustee shall reasonably determine, or shall
have been advised by counsel, that such action is contrary to the terms
of any of the Operative Documents to which the Owner Trustee is a party,
or is otherwise contrary to law.
SECTION 5.04. No Duties Except as Specified in Trust Agreement or
Instructions. The Owner Trustee shall not have any duty or obligation
to manage, control, use, sell, dispose of or otherwise deal with the
Aircraft or any other part of the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with any of the
Operative Documents to which the Owner Trustee is a party, except as
expressly required by the terms of any of the Operative Documents to
which the Owner Trustee is a party, or (to the
9
extent not inconsistent with the provisions of the Trust Indenture) as
expressly provided by the terms hereof or in written instructions from
the Owner Participant received pursuant to the terms of Section 5.01 or
5.02, and no implied duties or obligations shall be read into this Trust
Agreement against the Owner Trustee. FSB agrees that it will, in its
individual capacity and at its own cost or expense (but without any
right of indemnity in respect of any such cost or expense under Section
7.01 hereof) promptly take such action as may be necessary to duly
discharge and satisfy in full all Lessor Liens which it is required to
discharge pursuant to Section 8(h) of the Participation Agreement and
otherwise comply with the terms of said Section binding on it.
SECTION 5.05. Satisfaction of Conditions Precedent. Anything
herein to the contrary notwithstanding, the Owner Trustee shall comply
with the provisions of Section 3.01 hereof upon the satisfaction, to the
satisfaction of special counsel for the Owner Trustee, of all the
applicable conditions precedent specified in 3.02 hereof and in Section
5 of the Participation Agreement.
SECTION 5.06. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not have any power, right or
authority to, and the Owner Trustee agrees that it will not, manage,
control, use, sell, dispose of or otherwise deal with the Aircraft or
any other part of the Trust Estate except (i) as expressly required by
the terms of any of the Operative Documents to which the Owner Trustee
is a party, (ii) as expressly provided by the terms hereof, or (iii) as
expressly provided in written instructions from the Owner Participant
pursuant to Section 5.01 or 5.02 hereof.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.01. Acceptance of Trusts and Duties. FSB accepts
the trusts hereby created and agrees to perform the same but only upon
the terms hereof applicable to it. The Owner Trustee also agrees to
receive and disburse all monies received by it constituting part of the
Trust Estate upon the terms hereof. FSB shall not be answerable or
accountable under any circumstances, except (a) for its own willful
misconduct or gross negligence, (b) for performance of the terms of the
last sentence of Section 5.04 hereof, (c) for its or the Owner Trustee's
failure to use ordinary care to disburse funds and (d) for liabilities
that may result from the inaccuracy of any representation or warranty of
it (or from the failure by it to perform any covenant) in Section 6.03
hereof, in Section 6.03 of the Trust Indenture, in Section 4 of the
Lease or in Section 8(c), 8(d) and 8(v) of the Participation Agreement.
SECTION 6.02. Absence of Certain Duties. Except in
accordance with written instructions furnished pursuant to Section 5.02
hereof and except as provided in, and without limiting the generality
of, Section 5.04 hereof and the last sentence of Section 9.01(b) hereof,
neither the Owner Trustee nor FSB shall have any duty (i) to see to any
recording or filing of any Operative Document or of any supplement to
any thereof or to see to the
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maintenance of any such recording or filing or any other filing of
reports with the Federal Aviation Administration or other governmental
agencies, except that FSB, in its individual capacity, shall comply with
the reporting requirements set forth in 14 C.F.R. Section 47.45 or any
successor provision and the Owner Trustee shall, to the extent that
information for that purpose is supplied by Lessee pursuant to any of
the Operative Documents, complete and timely submit (and furnish the
Owner Participant with a copy of) any and all reports relating to the
Aircraft which may from time to time be required by the Federal Aviation
Administration or any government or governmental authority having
jurisdiction, or (ii) to see to any insurance on the Aircraft or to
effect or maintain any such insurance, whether or not Lessee shall be in
default with respect thereto, other than to forward to the Owner
Participant copies of all reports and other written information which
the Owner Trustee receives from Lessee pursuant to Section 11(c) of the
Lease, (iii) to see to the payment or discharge of any tax, assessment
or other governmental charge or any lien or encumbrance of any kind
owing with respect to, assessed or levied against any part of the Trust
Indenture Estate or the Trust Estate, except as provided in Section 8 of
the Participation Agreement, or (iv) to inspect Lessee's books and
records with respect to the Aircraft at any time permitted pursuant to
the Lease. Notwithstanding the foregoing, the Owner Trustee will
furnish to the Indenture Trustee and the Owner Participant, promptly
upon receipt thereof, duplicates or copies of all reports, notices,
requests, demands, certificates, financial statements and other
instruments furnished to the Owner Trustee under the Lease or any other
Operative Document.
SECTION 6.03. No Representations or Warranties as to Certain
Matters. NEITHER THE OWNER TRUSTEE NOR FSB MAKES OR SHALL BE DEEMED TO
HAVE MADE (a) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO
THE TITLE, VALUE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR
FITNESS FOR USE OF THE AIRCRAFT OR ANY PART THEREOF, OR ANY OTHER
REPRESENTATION OR WARRANTY WITH RESPECT TO THE AIRCRAFT WHATSOEVER,
except that FSB in its individual capacity warrants that on the Delivery
Date the Owner Trustee shall have received whatever title was conveyed
to it by Lessee and that the Aircraft shall during the Term be free of
Lessor Liens attributable to it, or (b) any representation or warranty
as to the validity, legality or enforceability of this Trust Agreement
or any Operative Document to which the Owner Trustee is a party, or any
other document or instrument, or as to the correctness of any statement
contained in any thereof except to the extent that any such statement is
expressly made herein or therein as a representation by FSB in its
individual capacity or by the Owner Trustee and except that FSB in its
individual capacity hereby represents and warrants that this Trust
Agreement has been, and (assuming due authorization, execution and
delivery by the Owner Participant of this Trust Agreement) the Operative
Documents to which it or the Owner Trustee is a party have been (or at
the time of execution and delivery of any such instrument by it or the
Owner Trustee hereunder or pursuant to the terms of the Participation
Agreement that such an instrument will be) duly executed and delivered
by one of its officers who is or will be, as the case may be, duly
authorized to execute and deliver such instruments on behalf of itself
or the Owner Trustee, as the case may be.
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SECTION 6.04. No Segregation of Monies Required; No Interest.
Except as provided in Section 22 of the Lease, monies received by the
Owner Trustee hereunder need not be segregated in any manner except to
the extent required by law, and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee shall not
be liable for any interest thereon.
SECTION 6.05. Reliance Upon Certificates, Counsel and Agents.
The Owner Trustee shall incur no liability to anyone in acting in
reliance upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or
paper reasonably believed by it to be genuine and reasonably believed by
it to be signed by the proper party or parties. Unless other evidence
in respect thereof is specifically prescribed herein, any request,
direction, order or demand of the Owner Participant or Lessee mentioned
herein or in any of the Operative Documents to which the Owner Trustee
is a party shall be sufficiently evidenced by written instruments signed
by a person purporting to be the chairman of the board, the president,
any executive vice president, any senior vice president or any vice
president or a managing director and in the name of the Owner
Participant or Lessee, as the case may be. The Owner Trustee may accept
a copy of a resolution of the Board of Directors or Executive Committee
of Lessee, certified by the secretary or any assistant secretary of
Lessee as duly adopted and in full force and effect, as conclusive
evidence that such resolution has been duly adopted by said Board or
Committee and that the same is in full force and effect. As to any fact
or matter the manner of ascertainment of which is not specifically
described herein, the Owner Trustee may for all purposes hereof rely on
a certificate signed by a person purporting to be the chairman of the
board, the president, any executive vice president, any senior vice
president or any vice president or a managing director of Lessee, as to
such fact or matter, and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be
taken by it in good faith in reliance thereon. In the administration of
trusts hereunder, the Owner Trustee may execute any of the trusts or
powers hereof and perform its powers and duties hereunder directly or
through agents or attorneys and may, at the expense of the Trust Estate,
consult with counsel, accountants and other skilled persons to be
selected and employed by it. The Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance
with the advice or opinion of any such counsel, accountants or other
skilled persons and the Owner Trustee shall not be liable for the
negligence of any such agent, attorney, counsel, accountant or other
skilled person appointed by it with due care hereunder.
SECTION 6.06. Not Acting in Individual Capacity. In acting
hereunder, the Owner Trustee acts solely as trustee and not in its
individual capacity except as otherwise expressly provided herein; and,
subject to the terms of the Participation Agreement and the Trust
Indenture, all persons, other than the Owner Participant, as provided
herein, having any claim against the Owner Trustee by reason of the
transactions contemplated hereby shall look only to the Trust Estate for
payment or satisfaction thereof.
SECTION 6.07. Fees; Compensation. Except as provided in
Section 5.03 or 7.01 hereof, the Owner Trustee agrees that it shall have
no right against the Owner Participant or (subject to the provisions of
the Trust Indenture) the Trust Estate for any fee as
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compensation for its services hereunder; provided, however, that the
Owner Trustee shall have a lien upon the Trust Estate (subject, however,
to the lien of the Trust Indenture) for any such fee not paid by Lessee
as contemplated by the last paragraph of Section 7(c) of the
Participation Agreement.
SECTION 6.08. Tax Returns. The Owner Trustee shall be
responsible for the keeping of all appropriate books and records
relating to the receipt and disbursement of all monies under this Trust
Agreement or any agreement contemplated hereby. The Owner Participant
shall be responsible for causing to be prepared and filed all income tax
returns required to be filed by the Owner Participant. The Owner
Trustee shall be responsible for causing to be prepared, at the request
and expense of the Owner Participant, all income tax returns required to
be filed with respect to the trust created hereby and shall execute and
file such returns. The Owner Participant or the Owner Trustee, as the
case may be, upon request, will furnish the Owner Trustee or the Owner
Participant, as the case may be, with all such information as may be
reasonably required from the Owner Participant or the Owner Trustee, as
the case may be, in connection with the preparation of such income tax
returns.
ARTICLE VII
INDEMNIFICATION OF OWNER TRUSTEE BY OWNER PARTICIPANT
SECTION 7.01. Owner Participant to Indemnify Owner Trustee.
The Owner Participant hereby agrees, whether or not any of the
transactions contemplated hereby shall be consummated, to assume
liability for, and hereby indemnify, protect, save and keep harmless FSB
in its individual capacity and its successors, assigns, legal
representatives, agents and servants, from and against any and all
liabilities, obligations, losses, damages, penalties, taxes (excluding
any taxes payable by FSB in its individual capacity on or measured by
any compensation received by FSB in its individual capacity for its
services hereunder or in connection with the transactions contemplated
by the Operative Documents), claims, actions, suits, costs, expenses or
disbursements (including, without limitation, reasonable ongoing fees of
the Owner Trustee, reasonable legal fees and expenses, and including
without limitation any liability of an owner, any strict liability and
any liability without fault) of any kind and nature whatsoever which may
be imposed on, incurred by or asserted against FSB in its individual
capacity (whether or not also indemnified against by Lessee under the
Lease or under the Participation Agreement or also indemnified against
by any other person but only to the extent not otherwise paid or
reimbursed by Lessee or such other person) in any way relating to or
arising out of this Trust Agreement or any of the Operative Documents or
the enforcement of any of the terms of any thereof, or in any way
relating to or arising out of the manufacture, purchase, acceptance,
nonacceptance, rejection, ownership, delivery, lease, possession, use,
operation, condition, sale, return or other disposition of the Aircraft
(including, without limitation, latent and other defects, whether or not
discoverable, and any claim for patent, trademark or copyright
infringement), or in any way relating to or arising out of the
administration of the Trust Estate or the action or inaction of the
Owner Trustee or FSB in its individual capacity hereunder, except (a) in
the case of willful misconduct or gross negligence
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on the part of the Owner Trustee or FSB in its individual capacity in
the performance or non-performance of its duties hereunder or (b) those
resulting from the inaccuracy of any representation or warranty of FSB
in its individual capacity (or from the failure of FSB in its individual
capacity to perform any covenant) in Section 6.03 hereof, in Section
6.03 of the Trust Indenture or, with respect to representations or
warranties of FSB in its individual capacity only, in Section 4 of the
Lease, in Section 8(c), Section 8(d) or Section 8(v) of the
Participation Agreement or in any of the other Operative Documents or
(c) as may result from a breach by FSB in its individual capacity of its
covenants in the last sentence of Section 5.04 hereof or (d) in the case
of the failure to use ordinary care on the part of the Owner Trustee or
FSB in its individual capacity in the disbursement of funds. The
indemnities contained in this Section 7.01 extend to FSB only in its
individual capacity and shall not be construed as indemnities of the
Trust Indenture Estate or the Trust Estate (except to the extent, if
any, that FSB in its individual capacity has been reimbursed by the
Trust Indenture Estate or the Trust Estate for amounts covered by the
indemnities contained in this Section 7.01). The indemnities contained
in this Section 7.01 shall survive the termination of this Trust
Agreement. In addition, if necessary, FSB in its individual capacity
shall be entitled to indemnification from the Trust Estate, subject to
the Lien of the Trust Indenture, for any liability, obligation, loss,
damage, penalty, tax, claim, action, suit, cost, expense or disbursement
indemnified against pursuant to this Section 7.01 to the extent not
reimbursed by Lessee, the Owner Participant or others, but without
releasing any of them from their respective agreements of reimbursement;
and to secure the same FSB in its individual capacity shall have a Lien
on the Trust Estate, subject to the Lien of the Trust Indenture, which
shall be prior to any interest therein of the Owner Participant. The
payor of any indemnity under this Article VII shall be subrogated to any
right of the person indemnified in respect of the matter as to which
such indemnity was paid.
ARTICLE VIII
TRANSFER OF THE OWNER PARTICIPANT'S INTEREST
SECTION 8.01. Transfer of Interests. All provisions of
Section 8(n) of the Participation Agreement shall (with the same force
and effect as if set forth in full, mutatis mutandis, in this Section
8.01) be applicable to any assignment, conveyance or other transfer by
any Owner Participant of its right, title or interest in and to the
Participation Agreement, the Trust Estate or this Trust Agreement.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES: CO-TRUSTEES
SECTION 9.01. Resignation of Owner Trustee; Appointment of
Successor. (a) Resignation or Removal. The Owner Trustee or any
successor Owner Trustee (i) shall resign if required to do so pursuant
to Section 8(c) of the Participation Agreement and
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(ii) may resign at any time without cause by giving at least sixty (60)
days' prior written notice to the Owner Participant, the Indenture
Trustee (so long as the Lien of the Trust Indenture has not been fully
discharged) and Lessee (so long as the Lease is in effect), such
resignation to be effective upon the acceptance of appointment by the
successor Owner Trustee under Section 9.01(b) hereof. In addition, the
Owner Participant may at any time remove the Owner Trustee without cause
by a notice in writing delivered to the Owner Trustee, the Indenture
Trustee (so long as the Lien of the Trust Indenture has not been fully
discharged) and Lessee (so long as the Lease is in effect), such removal
to be effective upon the acceptance of appointment by the successor
Owner Trustee under Section 9.01(b) hereof. In the case of the
resignation or removal of the Owner Trustee, the Owner Participant may
appoint a successor Owner Trustee by an instrument signed by the Owner
Participant. If a successor Owner Trustee shall not have been appointed
within thirty (30) days after such notice of resignation or removal, the
Owner Trustee, the Owner Participant, Lessee or the Indenture Trustee
may apply to any court of competent jurisdiction to appoint a successor
Owner Trustee to act until such time, if any, as a successor shall have
been appointed as above provided. Any successor Owner Trustee so
appointed by such court shall immediately and without further act be
superseded by any successor Owner Trustee appointed as above provided.
(b) Execution and Delivery of Documents, etc. Any successor
Owner Trustee, however appointed, shall execute and deliver to the
predecessor Owner Trustee and the Owner Participant an instrument
accepting such appointment, and thereupon such successor Owner Trustee,
without further act, shall become vested with all the estates,
properties, rights, powers, duties and trusts of the predecessor Owner
Trustee in the trusts hereunder with like effect as if originally named
the Owner Trustee herein; but nevertheless, upon the written request of
such successor Owner Trustee, such predecessor Owner Trustee shall
execute and deliver an instrument transferring to such successor Owner
Trustee, upon the trusts herein expressed, all the estates, properties,
rights, powers and trusts of such predecessor Owner Trustee, and such
predecessor Owner Trustee shall duly assign, transfer, deliver and pay
over to such successor Owner Trustee all monies or other property then
held by such predecessor Owner Trustee upon the trusts herein expressed.
Upon the appointment of any successor Owner Trustee hereunder, the
predecessor Owner Trustee will execute such documents as are provided to
it by such successor Owner Trustee and will take such further actions as
are requested of it by such successor Owner Trustee as are reasonably
required to cause registration of the Aircraft included in the Trust
Estate to be transferred upon the records of the Federal Aviation
Administration, or other governmental authority having jurisdiction,
into the name of the successor Owner Trustee.
(c) Qualification. Any successor Owner Trustee, however
appointed, shall be a Citizen of the United States without making use of
a voting trust, voting powers agreement or similar arrangement and shall
also be a bank or trust company organized under the laws of the United
States or any state thereof having a combined capital and surplus of at
least $100,000,000, if there be such an institution willing, able and
legally qualified to perform the duties of the Owner Trustee hereunder
upon reasonable or customary terms.
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(d) Merger, etc. Any corporation into which the Owner
Trustee may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any
corporation to which substantially all the corporate trust business of
the Owner Trustee may be transferred, shall, subject to the terms of
Section 9.01(c) hereof, be the Owner Trustee hereunder without further
act.
SECTION 9.02. Co-Trustees and Separate Trustees. If at any
time it shall be necessary or prudent in order to conform to any law of
any jurisdiction in which all or any part of the Trust Estate is
located, or the Owner Trustee being advised by counsel shall determine
that it is so necessary or prudent in the interest of the Owner
Participant or the Owner Trustee, or the Owner Trustee shall have been
directed to do so by the Owner Participant, the Owner Trustee and the
Owner Participant shall execute and deliver an agreement supplemental
hereto and all other instruments and agreements necessary or proper to
constitute another bank or trust company or one or more persons (any and
all of which shall be a Citizen of the United States without making use
of a voting trust, voting powers agreement or similar arrangement)
approved by the Owner Trustee and the Owner Participant, either to act
as co-trustee, jointly with the Owner Trustee, or to act as separate
trustee hereunder (any such co-trustee or separate trustee being herein
sometimes referred to as an "additional trustee"). In the event an
Indenture Event of Default not arising from a Lease Event of Default
shall occur and be continuing, the Owner Trustee may act under the
foregoing provisions of this Section 9.02 without the concurrence of the
Owner Participant; and the Owner Participant hereby appoints the Owner
Trustee its agent and attorney-in-fact to act for it under the foregoing
provisions of this Section 9.02 in such contingency.
Every additional trustee hereunder shall, to the extent
permitted by law, be appointed and act, and the Owner Trustee and its
successors shall act, subject to the following provisions and
conditions:
(A) all powers, duties, obligations and rights conferred upon
the Owner Trustee in respect of the custody, control and management
of monies, or documents authorized to be delivered hereunder or
under the Participation Agreement shall be exercised solely by the
Owner Trustee;
(B) all other rights, powers, duties and obligations conferr ed
or imposed upon the Owner Trustee shall be conferr ed or imposed upon
and exercis ed or perform ed by the Owner Trustee and such additio nal
trustee jointly, except to the extent that under any law of any jurisdi
ction in which any particu lar act or acts are to be perform ed (includ
ing the holding of title to the Trust Estate) the Owner Trustee shall be
incompe tent or unquali fied to perform such act or acts, in which event
such rights, powers, duties and obligat ions shall be exercis ed and
perform ed by such additional trustee;
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(C) no power given to, or which it is provided hereby may be
exercised by, any such additional trustee shall be exercised
hereunder by such additional trustee, except jointly with, or with
the consent in writing of, the Owner Trustee;
(D) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder;
(E) the Owner Participant, at any time, by an instrument in
writing may remove any such additional trustee unless such
additional trustee was appointed by the Owner Trustee without the
concurrence of the Owner Participant during the occurrence of an
Indenture Event of Default not arising from a Lease Event of
Default, in which case the Owner Trustee shall have the power to
remove any such additional trustee without the concurrence of the
Owner Participant; and the Owner Participant hereby appoints the
Owner Trustee its agent and attorney-in-fact for it in such
connection in such contingency; and
(F) no appointment of, or action by, any additional trustee
will relieve the Owner Trustee of any of its obligations under, or
otherwise affect any of the terms of, the Trust Indenture or affect
the interests of the Indenture Trustee or the holders of the
Secured Certificates in the Trust Indenture Estate.
ARTICLE X
SUPPLEMENTS AND AMENDMENTS
TO TRUST AGREEMENT AND OTHER DOCUMENTS
SECTION 10.01. Supplements and Amendments. (a) Supplements
and Amendments. This Trust Agreement may not be amended, supplemented
or otherwise modified except by an instrument in writing signed by the
Owner Trustee and the Owner Participant. Subject to Section 10.02
hereof and the first sentence of Section 10 of the Participation
Agreement, the Owner Trustee will execute any amendment, supplement or
other modification of this Trust Agreement or of any other Operative
Document to which the Owner Trustee is a party which it is requested to
execute by the Owner Participant, except that the Owner Trustee shall
not execute any such amendment, supplement or other modification which,
by the express provisions of any of the above documents, requires the
consent of any other party unless such consent shall have been obtained.
(b) Delivery of Amendments and Supplements to Certain
Parties. A signed copy of each amendment or supplement referred to in
Section 10.01(a) hereof shall be delivered by the Owner Trustee to the
Indenture Trustee and each holder of a Secured Certificate.
SECTION 10.02. Discretion as to Execution of Documents. Prior
to executing any document required to be executed by it pursuant to the
terms of Section 10.01 hereof, the Owner Trustee shall be entitled to
receive an opinion of its counsel to the effect that
17
the execution of such document is authorized hereunder. If in the
opinion of the Owner Trustee any such document adversely affects any
right, duty, immunity or indemnity in favor of the Owner Trustee
hereunder or under any other Operative Document to which the Owner
Trustee is a party, the Owner Trustee may in its discretion decline to
execute such document.
SECTION 10.03. Absence of Requirements as to Form. It shall
not be necessary for any written request furnished pursuant to Section
10.01 hereof to specify the particular form of the proposed documents to
be executed pursuant to such Section, but it shall be sufficient if such
request shall indicate the substance thereof.
SECTION 10.04. Distribution of Documents. Promptly after the
execution by the Owner Trustee of any document entered into pursuant to
Section 10.01 hereof, the Owner Trustee shall mail, by certified mail,
postage prepaid, a conformed copy thereof to the Owner Participant, but
the failure of the Owner Trustee to mail such conformed copy shall not
impair or affect the validity of such document.
SECTION 10.05. No Request Needed as to Lease Supplement and
Trust Supplement. No written request pursuant to Section 10.01 hereof
shall be required to enable the Owner Trustee to enter into the Lease
Supplement covering the Aircraft with Lessee pursuant to the terms of
the Lease and Section 3.01 hereof and the Trust Supplement pursuant to
the terms of the Trust Indenture and Section 3.01 hereof.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Termination of Trust Agreement. This Trust
Agreement and the trusts created hereby shall be of no further force or
effect upon the earlier of (a) both the final discharge of the Trust
Indenture pursuant to Section 10.01 thereof and the sale or other final
disposition by the Owner Trustee of all property constituting part of
the Trust Estate and the final distribution by the Owner Trustee of all
monies or other property or proceeds constituting part of the Trust
Estate in accordance with Article IV hereof, provided that at such time
Lessee shall have fully complied with all of the terms of the Lease and
the Participation Agreement or (b) twenty-one years less one day after
the death of the last survivor of all of the descendants of the
grandparents of Xxxxx Xxxxxxxxxxx living on the date of the earliest
execution of this Trust Agreement by any party hereto; otherwise this
Trust Agreement and the trusts created hereby shall continue in full
force and effect in accordance with the terms hereof.
SECTION 11.02. Owner Participant Has No Legal Title in Trust
Estate. The Owner Participant shall not have legal title to any part of
the Trust Estate. No transfer, by operation of law or otherwise, of any
right, title and interest of the Owner Participant in and to the Trust
Estate hereunder shall operate to terminate this Trust Agreement or the
trusts hereunder or entitle any successors or transferees of the Owner
Participant to an accounting or to the transfer of legal title to any
part of the Trust Estate.
18
SECTION 11.03. Assignment, Sale, etc. of Aircraft. Any
assignment, sale, transfer or other conveyance of its interest in the
Aircraft by the Owner Trustee made pursuant to the terms hereof or of
the Lease or the Participation Agreement shall bind the Owner
Participant and shall be effective to transfer or convey all right,
title and interest of the Owner Trustee and the Owner Participant in and
to the Aircraft. No purchaser or other grantee shall be required to
inquire as to the authorization, necessity, expediency or regularity of
such assignment, sale, transfer or conveyance or as to the application
of any sale or other proceeds with respect thereto by the Owner Trustee.
SECTION 11.04. Trust Agreement for Benefit of Certain Parties
Only. Except for the terms of Section 8(n) of the Participation
Agreement incorporated in Article VIII hereof and except as otherwise
provided in Articles IX and X hereof, nothing herein, whether expressed
or implied, shall be construed to give any Person other than the Owner
Trustee and the Owner Participant any legal or equitable right, remedy
or claim under or in respect of this Trust Agreement; but this Trust
Agreement shall be held to be for the sole and exclusive benefit of the
Owner Trustee and the Owner Participant.
SECTION 11.05. Notices; Consent to Jurisdiction. (a) All
notices, demands, instructions and other communications required or
permitted to be given to or made upon any party hereto shall be in
writing and shall be personally delivered or sent by registered or
certified mail, postage prepaid, or by telecopier, or by prepaid courier
service, and shall be deemed to be given for purposes of this Trust
Agreement on the day that such writing is delivered or sent to the
intended recipient thereof in accordance with the provisions of this
Section 11.05(a). Unless otherwise specified in a notice sent or
delivered in accordance with the foregoing provisions of this Section
11.05(a), notices, demands, instructions and other communications in
writing shall be given to or made upon the respective parties hereto at
their respective addresses (or to their respective telecopier numbers)
as follows: (A) if to Lessee, the Owner Trustee, the Loan Participants,
the Indenture Trustee or the Owner Participant, to the respective
addresses set forth below the signatures of such parties on the
signature page of the Participation Agreement, or (B) if to a Subsequent
Owner Participant, addressed to such Subsequent Owner Participant at
such address as such Subsequent Owner Participant shall have furnished
by notice to the parties hereto or (C) if to any subsequent Certificate
Holder, addressed to such Certificate Holder at its address set forth in
the secured certificate register maintained pursuant to Section 2.07 of
the Trust Indenture.
(b) Each of the parties hereto (A) hereby irrevocably submits
itself to the non-exclusive jurisdiction of the United States District
Court for the Southern District of New York and to the non-exclusive
jurisdiction of the Supreme Court of the State of New York, New York
County, for the purposes of any suit, action or other proceeding arising
out of this Trust Agreement, the Participation Agreement, the Lease, the
Tax Indemnity Agreement or any other Operative Document, the subject
matter of any thereof or any of the transactions contemplated hereby or
thereby brought by any party or parties thereto, or their successors or
assigns, and (B) hereby waives, and agrees not to assert, by way of
motion, as a defense, or otherwise, in any such suit, action or
proceeding, to the extent permitted by applicable law, that the suit,
action or proceeding is brought in an inconvenient forum, that the venue
of the
19
suit, action or proceeding is improper, or that the Participation
Agreement, the Lease, the Tax Indemnity Agreement or any other Operative
Document or the subject matter of any thereof or any of the transactions
contemplated hereby or thereby may not be enforced in or by such courts.
SECTION 11.06. Severability. Any provision hereof which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 11.07. Waivers, etc. No term or provision hereof may
be changed, waived, discharged or terminated orally, but only by an
instrument in writing entered into in compliance with the terms of
Article X hereof; and any waiver of the terms hereof shall be effective
only in the specific instance and for the specific purpose given.
SECTION 11.08. Counterparts. This Trust Agreement may be
executed by the parties hereto in separate counterparts, each of which
when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
SECTION 11.09. Binding Effect, etc. All covenants and
agreements contained herein shall be binding upon, and inure to the
benefit of, the Owner Trustee and its successors and assigns, and the
Owner Participant, its successors and, to the extent permitted by
Article VIII hereof, its assigns. Any request, notice, direction,
consent, waiver or other instrument or action by the Owner Participant
shall bind its successors and assigns. Any Owner Participant which
shall cease to have any Ownership Interest shall thereupon cease to be a
party hereto or an Owner Participant for any reason and shall have no
further obligations hereunder.
SECTION 11.10. Headings; References. The headings of the
various Articles and Sections herein are for convenience of reference
only and shall not define or limit any of the terms or provisions
hereof.
SECTION 11.11. GOVERNING LAW. THIS TRUST AGREEMENT SHALL IN
ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF UTAH, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE.
ARTICLE XII
CERTAIN LIMITATIONS
SECTION 12.01. Limitations on Control. Notwithstanding any
other provision of this Trust Agreement, but subject to Section 12.03
hereof, until termination of this
20
Trust Agreement, (i) the Owner Participant shall not have any voting
rights or other rights or powers to direct, influence or control the
Owner Trustee in connection with matters involving the ownership and
operation of the Aircraft or any part thereof by the Owner Trustee
(collectively, the "Control Rights") and (ii) the Owner Trustee shall
have absolute and complete discretion in all matters as to which the
Owner Participant otherwise would have had Control Rights but for the
provisions of this Article XII and shall be free of any kind of
influence or control whatsoever by the Owner Participant, and the Owner
Trustee shall exercise the Control Rights solely to the extent it, in
its discretion, shall deem necessary to protect the interests of the
United States, notwithstanding any countervailing interest of any
foreign power which, or whose citizens, may have a direct or indirect
interest in the Owner Participant. Such discretion (x) is in addition
to the discretion given to the Owner Trustee under the other Sections of
this Trust Agreement, and (y) is expressly limited to the Control Rights
that, but for the provisions of this Article XII, would be held or
exercisable by the Owner Participant, and does not extend to any other
rights, powers or privileges in respect of the beneficial interest of
the Owner Participant in the Trust Estate. The Owner Trustee shall
notify the Owner Participant of its exercise of rights and duties under
this Trust Agreement in connection with matters involving the Control
Rights.
SECTION 12.02. Discretion and Actions of Owner Trustee. In
exercising its discretion under this Article XII, the Owner Trustee
shall exercise its best judgment and shall not be liable for any action
taken or omitted hereunder, except for its gross negligence or willful
misconduct, and shall exercise the Control Rights in connection with all
matters involving the ownership and operation of the Aircraft by the
Owner Trustee.
SECTION 12.03. Certain Exceptions. Subject to the
requirements of the preceding Sections 12.01 and 12.02, the Owner
Trustee agrees that it will not, without the prior written consent of
the Owner Participant, (i) sell, mortgage, pledge or otherwise dispose
of the Aircraft or other assets held in the Trust Estate relating
thereto except as otherwise expressly provided for herein, or (ii) amend
the Lease or any other document or give any consents thereunder.
SECTION 12.04. Purpose. The purpose of this Article XII is to
give the Owner Trustee the power to manage and control the Aircraft with
respect to matters involving the ownership and operation of the Aircraft
by the Owner Trustee so as to assure that (i) the Aircraft shall be
controlled with respect to such matters by a Citizen of the United
States, (ii) the Owner Participant shall have no power to influence or
control the exercise of the Owner Trustee's authority with respect to
such matters and (iii) the Owner Trustee shall be able to give the
affidavit required by Section 47.7(c)(2)(iii) of the Federal Aviation
Regulations, 14 C.F.R. 47.7(c)(2)(iii). This Article XII shall be
construed in furtherance of, and the powers given to the Owner Trustee
hereby shall be construed no more broadly than is required by, the
foregoing purpose.
SECTION 12.05. Amendments to Article XII. Notwithstanding any
other provision of this Trust Agreement, so long as the Aircraft shall
be registered under the laws of the United States and so long as this
Article XII shall not have been terminated pursuant to
21
Section 12.06 hereof, this Article XII shall not be amended,
supplemented or modified unless either (i) the Owner Participant shall
have become a Citizen of the United States, or (ii) the FAA shall have
concluded that such amendment, supplement or modification would not
cause the Aircraft to be ineligible for registration in the United
States.
SECTION 12.06. Termination. The provisions of this Article
XII shall terminate upon the earliest of (i) the Aircraft ceasing to be
registered under the laws of the United States, (ii) the Owner
Participant becoming a Citizen of the United States, or (iii) the
termination of this Trust Agreement pursuant to the provisions of
Section 11.01 hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
SUMITOMO BANK CAPITAL MARKETS, INC.
By: /s/ Xxxxxxxxx Xxxxxxx
------------------------------
Title: President
FIRST SECURITY BANK,
NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxx
------------------------------
Title: Vice President
