EXHIBIT 4.19
--------------------------------------------------------------------------------
AMENDED AND RESTATED
TRUST AGREEMENT
Dated as of May 24, 2001
between
XXXXXX LEASING COMPANY-1,
As Owner Participant
and
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
Individually and as Owner Trustee
-----------------------------
One aircraft of the make and model and bearing
U.S. Registration Number and Manufacturer's
Serial Number listed on Schedule A hereto.
-------------------
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
Parties ........................................................................................................ 1
ARTICLE I DEFINITIONS AND TERMS 1
Section 1.1. Certain Definitions........................................................................1
ARTICLE II AUTHORITY TO EXECUTE CERTAIN OPERATIVE DOCUMENTS; DECLARATION OF TRUST 1
Section 2.1. Authority to Execute Documents.............................................................1
Section 2.2. Declaration of Trust.......................................................................1
ARTICLE III ACTIONS AT CLOSING TIME 2
Section 3.1. Actions at Closing Time....................................................................2
Section 3.2. Conditions Precedent.......................................................................2
ARTICLE IV PAYMENTS AND DISTRIBUTIONS 2
Section 4.1. Payments from Trust Estate Only............................................................2
Section 4.2. Method of Payment..........................................................................2
Section 4.3. Distribution of Payments. (a).............................................................2
Section 4.4. Certain Distributions to Owner Participant.................................................3
Section 4.5. Multiple Owner Participants................................................................3
ARTICLE V DUTIES OF THE OWNER TRUSTEE 3
Section 5.1. Action Upon Instructions...................................................................3
Section 5.2. Notice of Event of Default.................................................................4
Section 5.3. Indemnification............................................................................4
Section 5.4. No Duties Except as Specified in Trust Agreement or Instructions...........................4
Section 5.5. No Action Except Under Specified Documents or Instructions.................................5
Section 5.6. Fixed Investment Trust.....................................................................5
ARTICLE VI THE OWNER TRUSTEE 5
Section 6.1. Acceptance of Trusts and Duties............................................................5
Section 6.2. Absence of Certain Duties; Furnishing of Documents.........................................6
Section 6.3. No Representations or Warranties as to Certain Matters.....................................6
Section 6.4. No Segregation of Moneys Required..........................................................7
Section 6.5. Reliance Upon Certificates, Counsel and Agents.............................................7
Section 6.6. Not Acting in Individual Capacity..........................................................8
Section 6.7. Fees; Compensation.........................................................................8
Section 6.8. Tax Returns................................................................................8
ARTICLE VII INDEMNIFICATION OF THE BANK BY OWNER PARTICIPANT 9
Section 7.1. Owner Participant to Indemnify the Bank....................................................9
i
AMENDED & RESTATED
TRUST AGREEMENT (AA EETC 2001-1)
Page
ARTICLE VIII TRANSFER OF AN OWNER PARTICIPANT'S INTEREST 10
Section 8.2. Actions of Owner Participants.............................................................10
ARTICLE IX SUCCESSOR OWNER TRUSTEES; CO-OWNER TRUSTEES; AND SEPARATE OWNER TRUSTEES 10
Section 9.1. Resignation of Owner Trustee; Appointment of Successor....................................10
Section 9.2. Co-Trustees and Separate Trustees. (a)...................................................11
ARTICLE X SUPPLEMENTS AND AMENDMENTS TO TRUST AGREEMENT AND OTHER DOCUMENTS 13
Section 10.1. Supplements and Amendments and Delivery Thereof..........................................13
Section 10.2. Discretion as to Execution of Documents..................................................13
Section 10.3. Absence of Requirements as to Form.......................................................14
Section 10.4. Distribution of Documents................................................................14
Section 10.5. No Request Needed as to Lease Supplement and Trust Indenture Supplement..................14
ARTICLE XI MISCELLANEOUS 14
Section 11.1. Termination of Trust Agreement...........................................................14
Section 11.2. Owner Participant Has No Legal Title to Trust Estate.....................................15
Section 11.3. Assignment, Sale, etc. of Aircraft.......................................................15
Section 11.4. Trust Agreement for Benefit of Certain Parties Only......................................15
Section 11.5. Citizenship of Owner Participant.........................................................16
Section 11.6. Notices..................................................................................16
Section 11.7. Severability.............................................................................16
Section 11.8. Waivers, etc.............................................................................16
Section 11.9. Counterparts.............................................................................16
Section 11.10. Binding Effect, etc.....................................................................16
Section 11.11. Headings; References....................................................................17
Section 11.12. GOVERNING LAW...........................................................................17
Section 11.13. Performance by Owner Participant........................................................17
Section 11.14. Limitation on Owner Participant's Liability.............................................17
Schedule A - Aircraft Description
ii
AMENDED & RESTATED
TRUST AGREEMENT (AA EETC 2001-1)
AMENDED AND RESTATED
TRUST AGREEMENT
AMENDED AND RESTATED
TRUST AGREEMENT dated as of May 24, 2001 between
XXXXXX LEASING COMPANY-1, a Delaware corporation (the "Owner Participant"), and
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION (formerly First Security Bank,
National Association), a national banking association (in its individual
capacity, the "Bank", and otherwise not in its individual capacity but solely as
trustee hereunder, and with its permitted successors and assigns called the
"Owner Trustee") amending and restating that certain
Trust Agreement dated as of
April 9, 2001 between Owner Participant and First Security Bank, National
Association, a national banking association, filed with the FAA on April 9, 2001
and pertaining to the Aircraft described on Schedule A hereto;
WITNESSETH:
ARTICLE I
DEFINITIONS AND TERMS
Section 1.1. Certain Definitions. Unless the context shall otherwise
require, the capitalized terms used herein shall have the respective meanings
assigned to them in Annex A to the Amended and Restated Lease Agreement relating
to the lease of the aircraft specified on Schedule A hereto, dated as of the
date hereof, among American Airlines, Inc., as Lessee and the Owner Trustee, as
Lessor, as amended, modified or supplemented from time to time, which Annex A
also contains rules of usage which shall apply herein.
ARTICLE II
AUTHORITY TO EXECUTE CERTAIN OPERATIVE
DOCUMENTS; DECLARATION OF TRUST
Section 2.1. Authority to Execute Documents. The Owner Participant
hereby authorizes and directs the Owner Trustee and the Owner Trustee hereby
agrees for the benefit of the Owner Participant (i) on and after the Closing
Date, to execute and deliver the Operative Documents to which the Owner Trustee
is a party and any other agreements, instruments or documents to which the Owner
Trustee is a party in the respective forms thereof delivered from time to time
by the Owner Participant to the Owner Trustee for execution and delivery, (ii)
subject to the terms hereof, to exercise its rights and perform its duties under
the documents referred to in this Section 2.1 in accordance with the terms
thereof and (iii) subject to the terms of this Agreement, to take such other
action in connection with the foregoing as the Owner Participant may from time
to time direct.
Section 2.2. Declaration of Trust. The Bank hereby declares that it
will hold the Trust Estate upon the trusts hereinafter set forth for the use and
benefit of the Owner Participant, subject, however, to the Lien of the
Indenture.
1
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
ARTICLE III
ACTIONS AT CLOSING TIME
Section 3.1. Actions at Closing Time. The Owner Participant hereby
authorizes and directs the Owner Trustee to, and the Owner Trustee agrees for
the benefit of the Owner Participant that at or after the time of the Closing,
it will, subject to due compliance with the terms of Section 3.2 hereof take
such actions as are required of the Owner Trustee hereunder or under the
Indenture, the Participation Agreement or the Lease.
Section 3.2. Conditions Precedent. The rights and obligations of the
Owner Trustee to take the actions required by Section 3.1 hereof shall be
subject to (a) the conditions precedent enumerated in the Indenture, the
Participation Agreement and the Lease and (b) Owner Participant having notified
Owner Trustee that the terms and conditions of Section 4 of the Participation
Agreement, insofar as they relate to conditions precedent to performance by
Owner Participant of its obligations thereunder, have been either fulfilled to
the satisfaction of, or waived by, Owner Participant.
ARTICLE IV
PAYMENTS AND DISTRIBUTIONS
Section 4.1. Payments from Trust Estate Only. All payments to be made
by the Owner Trustee under this Agreement shall be made only from the income and
the proceeds from the Trust Estate and only to the extent that the Owner Trustee
shall have received income or proceeds from the Trust Estate, except as
specifically provided in Section 6.1. The Owner Participant agrees that it will
look solely to the income and proceeds from the Trust Estate to the extent
available for payment as herein provided and that, except as specifically
provided herein, the Owner Trustee is not liable in its individual capacity to
the Owner Participant for any amounts payable under this Agreement and is not
subject to any liability in its individual capacity under this Agreement except
as set forth in Article VI.
Section 4.2. Method of Payment. Owner Trustee shall make distributions
or cause distributions to be made to Owner Participant pursuant to this Section
4 by transferring the amount to be distributed by wire transfer in immediately
available funds on the day received (or on the next succeeding Business Day if
the funds to be so distributed shall not have been received by Owner Trustee by
12:00 noon, New York City time, and which funds Owner Trustee shall not have
been reasonably able to distribute to Owner Participant on the day received) to
Owner Participant's account set forth in Schedule I to the Participation
Agreement or to such other account or accounts of Owner Participant as Owner
Participant may designate from time to time in writing to Owner Trustee;
provided, that Owner Trustee shall use reasonable efforts to invest overnight,
all funds received by it at or later than 12:00 noon, New York City time, and
which funds Owner Trustee shall not have been reasonably able to distribute to
Owner Participant on the day received).
Section 4.3. Distribution of Payments. (a) Until the Indenture shall
have been discharged pursuant to Section 13.01 thereof, all Basic Rent,
Supplemental Rent, insurance proceeds and requisition or other payments of any
kind included in the Trust Estate (other than
2
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
Excepted Property) payable to Owner Trustee shall be payable directly to Loan
Trustee (and, if any of the same are received by Owner Trustee, shall upon
receipt be paid over to loan Trustee without deduction, set-off or adjustment of
any kind) for distribution in accordance with the provisions of Article III of
the Indenture; provided, that any payments received by Owner Trustee from (a)
Lessee with respect to Owner Trustee's fees and disbursements or (b) Owner
Participant pursuant to Article 7, shall not be paid over to Loan Trustee, but
shall be retained by Owner Trustee and applied toward the purpose for which such
payments were made.
(b) Subject to the terms and requirements of the Indenture (prior to
the discharge thereof), all payments and amounts received by the Owner Trustee,
if any, shall be distributed forthwith upon receipt in the following order of
priority: first, so much of such payment or amount as shall be required to
reimburse the Owner Trustee for any fees or expenses not reimbursed by the Owner
Participant as to which the Owner Trustee is entitled to be reimbursed hereunder
shall be retained by the Owner Trustee; and, second, the balance, if any, of
such payment or amount remaining thereafter shall be distributed to the Owner
Participant.
Section 4.4. Certain Distributions to Owner Participant. All amounts
from time to time distributable by Loan Trustee to Owner Participant pursuant to
the Indenture shall, if paid to Owner Trustee, be distributed by Owner Trustee
to Owner Participant in accordance with the provisions of Article 3 of the
Indenture; provided, that any payments received by Owner Trustee from (a) Lessee
with respect to Owner Trustee's fees and disbursements or (b) Owner Participant
pursuant to Section 7.1 shall not be paid over to Owner Participant but shall be
retained by Owner Trustee and applied toward the purpose for which such payments
were made.
Section 4.5. Multiple Owner Participants. If, as a result of a transfer
by Owner Participant under Section 8.1, there is more than one Owner Participant
under this Trust Agreement, each such Owner Participant shall hold in proportion
to its respective beneficial interest in the Trust Estate an undivided
beneficial interest in the entire Trust Estate and is entitled to receive
ratably with any other Owner Participant payments distributable by Owner Trustee
under this Trust Agreement. No Owner Participant shall have legal title to the
Aircraft or any other portion of the Trust Estate.
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
Section 5.1. Action Upon Instructions. Subject to the terms of Section
5.2 hereof and the terms of the other Operative Documents, upon the written
instructions at any time and from time to time of the Owner Participant, the
Owner Trustee will take or refrain from such of the following actions, as may be
specified in such instructions: (a) 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, or take such other action, as shall be specified in such instructions;
(b) take such action to preserve or protect the Trust Estate (including the
discharge of Liens) as may be specified in such instructions; (c) approve as
satisfactory to it all matters required by the terms of the Lease or the other
Operative 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; and (d) after the
expiration or earlier termination of the Lease,
3
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
convey all of the Owner Trustee's right, title and interest in and to the
Aircraft for such amount, on such terms and to such purchaser or purchasers as
shall be designated in such instructions, or retain, lease or otherwise dispose
of, or from time to time take such other action with respect to, the Aircraft on
such terms as shall be designated in such instructions.
Section 5.2. Notice of Event of Default.
(a) If Owner Trustee shall have knowledge of a Specified Default or an
Event of Default or an Indenture Default or an Indenture Event of Default, Owner
Trustee shall give to Owner Participant, Loan Trustee and Lessee prompt
telephonic notice thereof followed by prompt confirmation thereof by certified
mail, postage prepaid; provided, that (i) in the case of an event which with the
passage of time would constitute an Indenture Event of Default of the type
referred to in paragraph (c), (d) or (i) of Section 8.01 of the Indenture, such
notice shall in no event be furnished later than ten days after Owner Trustee
shall first have knowledge of such event and (ii) in the case of a
misrepresentation by Owner Trustee which with the passage of time would
constitute an Indenture Event of Default of the type referred to in Section
8.01(e) of the Indenture, such notice shall in no event by furnished later than
ten days after Owner Trustee shall first have knowledge of such event.
(b) Subject to the terms of Section 5.4, Owner Trustee shall take such
action or shall refrain from taking such action, not inconsistent with the
provisions of the Indenture, with respect to such Specified Default, Event of
Default, Indenture Default or Indenture Event of Default or other event as Owner
Trustee shall be directed in writing by Owner Participant. For all purposes of
this Trust Agreement, the Lease and the other Operative Documents, in the
absence of actual knowledge of Owner Trustee, Owner Trustee shall not be deemed
to have knowledge of a Specified Default, Event of Default, Indenture Default or
Indenture Event of Default unless notified in writing by Loan Trustee, Owner
Participant or Lessee.
Section 5.3. Indemnification. The Owner Trustee shall not be required
to take any action under Section 5.1 hereof or under Section 5.2 (other than the
giving of the notices referred to therein) hereof if Owner Trustee shall
reasonably believe that it is not adequately indemnified by the Owner
Participant under Article VII hereof, unless the Owner Trustee shall have been
indemnified by the Owner Participant, in manner and form reasonably satisfactory
to the Owner Trustee, against any liability, cost or expense (including
reasonable counsel fees and disbursements) which may be incurred in connection
therewith other than any such liability, cost or expense for which the Owner
Trustee is answerable or accountable pursuant to the third sentence of Section
6.1 hereof. The Owner Trustee shall not be required to take any action under
Section 5.1 hereof or under Section 5.2 (other than the giving of the notices
referred to therein) 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, and the Owner Trustee in such case shall deliver
promptly to the Owner Participant written notice of the basis of its refusal to
act.
Section 5.4. 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
4
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
Operative Documents to which the Owner Trustee is a party, or as expressly
provided by the terms hereof or in a written instruction from the Owner
Participant received pursuant to the terms of Section 5.1 or 5.2, and no implied
duties or obligations shall be read into this Agreement against the Owner
Trustee. Notwithstanding anything to the contrary contained in this Agreement,
the Bank agrees that it will, at its own cost or expense (but without any right
of indemnity in respect of any such cost or expense under Section 7.1 hereof or
under the Participation Agreement), promptly take such action as may be
necessary duly to discharge and satisfy in full any Liens on any part of the
Trust Estate attributable to the Bank which it is required to discharge pursuant
to the Participation Agreement. The Bank agrees to indemnify, protect, save and
keep harmless the Owner Participant from and against any loss, cost or expense
(including reasonable counsel fees and disbursements) incurred by the Owner
Participant as a result of the imposition or enforcement of any such Lien
against the Aircraft, any interest herein or on any part of the Trust Estate
resulting from any Lien attributable to the Bank.
Section 5.5. No Action Except Under Specified Documents or
Instructions. The Owner Trustee agrees that it shall have no right, power or
authority to, and it will not manage, control, use, sell, dispose of or
otherwise deal with the Aircraft or any other part of the Trust Estate except
(a) as expressly required by the terms of any of the Operative Documents to
which the Owner Trustee is a party, (b) as expressly provided by the terms
hereof, or (c) as expressly provided in written instructions from the Owner
Participant pursuant to Section 5.1 or 5.2 hereof, but subject always to the
provisions of the Indenture, the Lease and the Participation Agreement.
Section 5.6. Fixed Investment Trust. Notwithstanding anything in this
Trust Agreement to the contrary, the Owner Trustee shall not be authorized and
shall have no power to "vary the investment" of the Owner Participant within the
meaning of Treasury Regulations Section 301.7701-4(c)(1), it being duly
understood that Owner Trustee shall have the power and authority to fulfill
Owner Participant's obligations under Section 4.2 hereof and Section 25 of the
Lease.
ARTICLE VI
THE OWNER TRUSTEE
Section 6.1. Acceptance of Trusts and Duties. The Bank accepts the
trusts hereby created and agrees to perform the same as Owner Trustee but only
upon the terms hereof and of the Indenture applicable to it. The Owner Trustee
also agrees to receive and disburse all moneys received by it constituting part
of the Trust Estate pursuant to the terms hereof. The Bank 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 5.4 hereof, (c) for its or the Owner Trustee's failure
to use ordinary care to comply with the first sentence of Section 6.8 or to
receive, disburse or invest funds in accordance with the terms hereof or the
Lease or for any negligence or willful misconduct of the Owner Trustee arising
out of its obligations under Section 5.1 hereof, (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 any Operative Document to which it is
a party, (e) for taxes, fees or other charges on, based on or measured by any
fees, commissions or other compensation received by the Bank as compensation for
its services rendered as the Owner Trustee, (f) its or Owner Trustee's failure
5
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
to use ordinary care in receiving or disbursing funds or in connection with its
obligation to invest funds pursuant to Section 25 of the Lease or Section 4.2
hereof, or (g) for any liability on the part of Owner Trustee arising out of its
negligence or willful or negligent misconduct in connection with its obligations
under Section 5.2 hereof (other than paragraph (a) thereof), 6.8 or 9.2 or under
Section 4.01 of the Indenture. The Bank shall have no obligation to advance its
individual funds for any purpose, and Owner Trustee shall have no obligation to
distribute to Owner Participant, Lessee or any third party any amounts to be
paid to Owner Trustee until such amounts are collected by Owner Trustee.
Section 6.2. Absence of Certain Duties; Furnishing of Documents.
(a) Except in accordance with written instructions furnished pursuant
to Section 5.1 or 5.2 hereof and except as otherwise provided herein or in any
other Operative Document to which the Bank or the Owner Participant is a party,
neither Owner Trustee nor the Bank 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 maintenance of any such recording or filing or any
other filing of reports with the FAA or other governmental agencies, except that
of the Bank to comply with the FAA reporting requirements set forth in 14 C.F.R.
ss. 47.45 and 14 C.F.R. ss. 47.51, and Owner Trustee shall, to the extent that
information for that purpose is timely supplied by Lessee pursuant to any of the
Operative Documents, complete and timely submit (and furnish Owner Participant
with a copy of) any and all reports relating to the Aircraft that may from time
to time be required by the FAA or any government or governmental authority
having jurisdiction, (ii) to see to any insurance on the Aircraft or to effect
or maintain any such insurance, whether or not Lessee shall be in default with
respect thereto, other than to forward to Owner Participant copies of all
reports and other written information which Owner Trustee receives from Lessee
pursuant to Section 11 of the Lease, (iii) except as provided in Section 12(c)
of the Participation Agreement, Section 4.01 of the Indenture or Section 5.4 or
6.1 hereof, to see to the payment or discharge of any tax, assessment or other
governmental charge or any lien or encumbrance of any kind owning with respect
to or assessed or levied against any part of the Trust Indenture Estate or the
Trust Estate, or (iv) to inspect Lessee's books and records with respect to the
Aircraft at any time permitted pursuant to the Lease.
(b) Notwithstanding Section 6.2(a), the Owner Trustee will furnish to
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, unless the same are required to be furnished directly to the
Owner Participant by the Lessee pursuant to any Operative Document.
Section 6.3. No Representations or Warranties as to Certain Matters.
NEITHER THE OWNER TRUSTEE NOR THE BANK MAKES OR SHALL BE DEEMED TO HAVE MADE (a)
ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE,
AIRWORTHINESS, VALUE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS
FOR USE FOR A PARTICULAR PURPOSE OF THE AIRCRAFT OR ANY PART THEREOF, AS TO THE
ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO THE
ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, OR AS TO THE
ABSENCE OF ANY STRICT LIABILITY OBLIGATION OR ANY OTHER
6
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE AIRCRAFT OR
ANY PART THEREOF WHATSOEVER, except that the Bank represents and warrants that
at the time of the Closing the Owner Trustee has whatever title was conveyed to
it by the Manufacturer and that the Aircraft shall, during the Term be free of
any Liens attributable to the Bank, and (b) any representation or warranty as to
the validity, legality or enforceability of this Agreement or any Operative
Document to which the Owner Trustee or the Bank, is a party, or any other
document or instrument, or as to the correctness of any statement contained in
any thereof except (x) to the extent that any such statement is expressly made
herein or therein by such party as a representation by the Bank or the Owner
Trustee, and (y) the Bank hereby represents and warrants that it has all
corporate power and authority to execute, deliver and perform this Agreement and
that this Agreement constitutes the legal, valid and binding obligation of the
Bank or the Owner Trustee, as the case may be, and is enforceable against the
Bank or Owner Trustee, as the case may be, in accordance with its terms and has
been, and (assuming due authorization, execution and delivery by the Owner
Participant of this 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.
Section 6.4. No Segregation of Moneys Required. Except as provided
herein or in the Indenture, moneys 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, or except
as provided in written instructions from the Owner Participant, and shall be
invested as provided in Section 4.2 hereof or Section 25 of the Lease.
Section 6.5. Reliance Upon Certificates, Counsel and Agents. The Owner
Trustee shall incur no liability to anyone in acting in good faith 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 Vice President or any other officer 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 an Assistant Secretary of Lessee as
duly adopted and in full force and effect, as conclusive evidence that such
resolution has been duly adopted by said Board 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, absent
actual knowledge to the contrary, for all purposes hereof rely on a certificate
signed by a person purporting to be the Chairman of the Board, the President,
any Vice President or any other officer of Lessee or Owner Participant, 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
7
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
may consult with counsel, accountants and other skilled persons to be selected
and employed by it in each case other than persons regularly 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 written advice or opinion of any such
counsel, accountants or other skilled persons.
Section 6.6. Not Acting in Individual Capacity. In executing the trust
established hereby the Bank acts in its individual capacity, otherwise the Owner
Trustee acts solely as trustee and not in its individual capacity except as
otherwise expressly provided herein or in any other Operative Document; and,
except as may be otherwise expressly provided in this Agreement or any other
Operative Document to which the Owner Trustee is a party, all Persons, other
than the Owner Participant, as provided herein or in the Indenture, having any
claim against the Owner Trustee by reason of the transactions contemplated
hereby and thereby shall look only to the Trust Estate for payment or
satisfaction thereof.
Section 6.7. Fees; Compensation. The Owner Trustee shall receive from
the Owner Participant as compensation for the Owner Trustee's services hereunder
such fees, including extraordinary fees, as may heretofore and from time to time
hereafter be agreed upon by the Owner Trustee and the Owner Participant,
including the fees described in Section 12(a) of the Participation Agreement,
and the Owner Trustee shall be reimbursed by the Owner Participant for all
reasonable costs and expenses incurred or made by it in accordance with this
Agreement. The Owner Trustee shall have a lien on the Trust Estate, prior to any
interest therein of the Owner Participant, to secure payment of such fees and
expenses.
Section 6.8. 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 moneys received by it under this Agreement or any agreement
contemplated hereby. At the request of the Owner Participant, the Owner Trustee
agrees to file an application with the Internal Revenue Service for a taxpayer
identification number with respect to the trust created by this Agreement. Upon
request of the Owner Participant and at the expense of the Owner Participant,
the Owner Trustee shall prepare, execute and file all income tax reports or
returns required to be filed with respect to the trusts created 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. Upon request,
the Owner Trustee and the Owner Participant will provide each other with such
instruments, documents, certificates or other information as is reasonably
required in connection with the preparation of any such tax report or return.
Each party hereto, upon request, will furnish the other party with all such
information as may be reasonably required from any such other party in
connection with the preparation of such income tax returns. The Owner Trustee
shall keep copies of all returns delivered to it. The Owner Trustee (i) shall
deliver to the Owner Participant a completed copy of any return requested to be
prepared and filed by it not more than 60 and not less than 15 days prior to the
due date of such return and (ii) agrees to forward to the Owner Participant in
accordance with the provisions of Section 11.5 any communications with respect
to taxes pertaining to the Trust Estate which are received by the Owner Trustee.
8
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
ARTICLE VII
INDEMNIFICATION OF THE BANK
BY OWNER PARTICIPANT
Section 7.1. Owner Participant to Indemnify the Bank. 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 the Bank and its successors, assigns, legal
representatives, agents and servants, from and against any and all Claims which
may be imposed on, incurred by or asserted against the Bank, whether or not also
indemnified by any other Person (provided, however, that to the extent the Bank
shall have actually received any payment in the nature of an indemnity payment
from any such other Person relating to a Claim hereunder, the Bank shall not be
entitled to the amount of any such payment pursuant to this Section 7.1) in any
way relating to or arising out of this Agreement or any of the other 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, 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 Bank
hereunder; provided, that such indemnification shall not extend to (a) any of
the foregoing resulting from willful misconduct or gross negligence on the part
of the Owner Trustee or the Bank or any agents thereof in the performance or
nonperformance of its duties hereunder, or under any other Operative Document to
which the Bank or Owner Trustee is a party or (b) any of the foregoing resulting
from the inaccuracy of any representation or warranty of the Bank (or from the
failure of the Bank to perform any of its covenants) in Section 6.3 hereof or in
any of the other Operative Documents, or (c) any of the foregoing resulting from
a breach by the Bank of any of its covenants in the Operative Documents, (d)
notwithstanding clause (a) above, any of the foregoing resulting from the
failure to use ordinary care on the part of the Owner Trustee or the Bank in the
receipt, disbursement or investment of funds hereunder or under any other
Operative Document to which the Bank or the Owner Trustee is a party, (e) any of
the foregoing resulting from taxes, fees or other charges on, based on or
measured by any fees, commissions or other compensation received by the Bank as
compensation for its services rendered as the Owner Trustee, (f) any liability
on the part of Owner Trustee arising out of its negligence or willful or
negligent misconduct in connection with its obligations under Section 5.2, 6.8
or 9.2 or under Section 4.01 of the Indenture, or (g) those claims arising under
any circumstances or upon any terms where Lessee would not have been required to
indemnify the Bank pursuant to Section 10(b) or 10(c) of the Participation
Agreement; provided, that before asserting its right to indemnification, if any,
pursuant to this Section 7.1, the Bank, so long as the Lease is still in effect,
shall first demand its corresponding right to indemnification pursuant to
Section 10 of the Participation Agreement (but need not exhaust any or all
remedies available thereunder) or (h) any of the foregoing relating to a
resignation by the Owner Trustee. The indemnities contained in this Section 7.1
extend to the Bank 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 the Bank has been reimbursed by the Trust Indenture Estate
or the Trust Estate for amounts covered by the indemnities contained in this
Section 7.1). The indemnities contained in this Section 7.1 shall survive the
termination of this Agreement. The payor of any indemnity under this Article
9
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
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 AN OWNER PARTICIPANT'S INTEREST
Section 8.1. (a) Transfer of Interests. All provisions of Section 19(c)
of the Participation Agreement shall (with the same force and effect as if set
forth in full in this Section 8.1) be applicable to any assignment, conveyance
or other transfer by any Owner Participant of any of its right, title or
interest in and to the Participation Agreement, the Trust Estate, this Agreement
or any other Operative Document to which it is a party. If there is more than
one Owner Participant, no assignment, conveyance or other transfer by an Owner
Participant of any of its right, title or interest in and to this Agreement or
the Trust Estate shall be valid unless each other Owner Participant's prior
written consent (which consent may be withheld in the sole discretion of such
other Owner Participant) is given to such assignment, conveyance or other
transfer.
Section 8.2. Actions of Owner Participants. If at any time prior to the
termination of this Agreement there is more than one Owner Participant, then,
subject to Section 11.5, during such time, if any action is required to be taken
by all Owner Participants and whenever any direction, authorization, approval,
consent, instruction or other action is permitted to be given or taken by Owner
Participant, it shall be given or taken only upon unanimous agreement of all
Owner Participants; provided, that the termination of this Agreement pursuant to
Section 11.1 may be effected upon the election of any Owner Participant.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES; CO-OWNER TRUSTEES;
AND SEPARATE OWNER TRUSTEES
Section 9.1. Resignation of Owner Trustee; Appointment of Successor.
(a) Resignation or Removal. The Owner Trustee or any successor Owner Trustee may
resign at any time without cause by giving at least 60 days' prior written
notice to the Owner Participant, the Loan Trustee and the Lessee, such
resignation to be effective upon the acceptance of appointment by the successor
Owner Trustee under Section 9.1(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 Loan Trustee and the Lessee, such removal to
be effective upon the acceptance of appointment by the successor Owner Trustee
under Section 9.1(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 30 days after such notice of resignation or
removal, the Owner Trustee, the Owner Participant, the Loan Trustee or the
Lessee may apply to any court of competent jurisdiction to appoint a successor
Owner Trustee to act until such time, if any, as a successor shall have been
appointed as above provided. Any successor Owner Trustee so appointed by such
court shall immediately and without further act be superseded by any successor
Owner Trustee appointed as above provided within one year from the date of
10
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
appointment by such court. Any entity becoming a successor Owner Trustee
hereunder shall be deemed the "Owner Trustee" for all purposes hereof, and each
reference herein to the Owner Trustee shall thereafter be deemed a reference to
such entity.
(b) Execution and Delivery of Documents, etc. Any successor Owner
Trustee, however appointed, shall execute and deliver to the predecessor Owner
Trustee, with a copy to Owner Participant, Lessee and Loan Trustee an instrument
accepting such appointment and assuming the obligations of Owner Trustee and the
Bank under the Operative Document to which each is a party, and thereupon such
successor Owner Trustee, without further act, shall become vested with all the
estates, properties, rights, powers, duties and trusts of the predecessor Owner
Trustee in the 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, duties 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 moneys 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 FAA, or other governmental authority
having jurisdiction, into the name of the successor Owner Trustee.
(c) Qualifications. Any successor Owner Trustee, however appointed,
shall be a Citizen of the United States and shall also be a bank or trust
company organized under the laws of the United States or any state thereof
having a combined capital and surplus of at least $100,000,000, if there be such
an institution willing, able and legally qualified to perform the duties of the
Owner Trustee hereunder upon reasonable or customary terms.
(d) Merger, etc. Any corporation (or other entity) into which the Owner
Trustee or the Bank may be merged or converted or with which it may be
consolidated, or any corporation (or other entity) resulting from any merger,
conversion or consolidation to which the Owner Trustee or the Bank shall be a
party, or any corporation (or other entity) to which substantially all the
corporate trust business of the Owner Trustee or the Bank may be transferred
(including the owner trusteeship under this Agreement), shall, subject to the
terms of Section 9.1(c) hereof, be the Owner Trustee hereunder without further
act; provided, that such corporation shall in no event be the Loan Trustee.
Section 9.2. Co-Trustees and Separate Trustees. (a) If at any time it
shall be necessary or prudent in order to conform to any law of any jurisdiction
in which all or any part of the Trust Estate is located or to make or defend any
claim or bring or defend any suit or action, 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 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
11
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
all of which shall be a Citizen of the United States approved by the Owner
Trustee and Owner Participant (and the Owner Trustee may appoint one or more of
its officers), 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 case any such
additional trustee or separate trustee shall resign or be removed, all the
assets, property, rights, powers or duties of such additional trustee or
separate trustee, as the case may be, so far as permitted by any applicable law,
shall vest in and be exercised by a new successor to such additional trustee,
appointed in the manner otherwise provided in this Agreement.
(b) The Owner Trustee shall execute, acknowledge and deliver all such
instruments as may be required by any separate or additional trustee for more
fully confirming such title, rights or duties to such separate or additional
trustee. Upon the acceptance in writing of such appointment, such separate or
additional trustee shall be vested with such title to the Trust Estate or any
part thereof, and with such rights and duties, as shall be specified in the
instrument of appointment, jointly with the Owner Trustee (except insofar as
local law makes it necessary for such separate or additional trustee to act
alone) subject to all the terms of this Agreement. Any separate or additional
trustee may, at any time by a instrument in writing, constitute the Owner
Trustee its attorney-in-fact and agent, with full power and authority to do all
acts and things and to exercise all discretion on its behalf in its name. In
case any such separate or additional trustee shall die, become incapable of
acting, resigning or being removed, the title to the Trust Estate and all rights
and duties of such separate or additional trustee shall, so far as permitted by
law, vest in and be exercised by the Owner Trustee, without the appointment of a
successor to such separate or additional trustee.
(c) All provisions of this Agreement which are for the benefit of the
Owner Trustee shall extend to and apply to each separate or additional trustee
appointed pursuant to the foregoing provisions of this Section 9.2.
(d) 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:
(i) all powers, duties, obligations and rights conferred or
imposed upon the Owner Trustee in respect of the custody, control and
management of moneys, the Aircraft or documents authorized to be
delivered hereunder or under the Participation Agreement shall be
exercised solely by the Owner Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Owner Trustee shall be conferred or
imposed upon and exercised or performed by the Owner Trustee and such
additional trustee jointly, except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be
performed (including the holding of title to the Trust Estate) the
Owner Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations
shall be exercised and performed by such additional trustee;
(iii) 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;
12
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
(iv) no trustee hereunder shall be personally liable by reason
of any action or omission of any other trustee hereunder;
(v) the Owner Participant, at any time, by an instrument in
writing may remove any such additional trustee; and
(vi) 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 Indenture or affect the
interests of the Loan Trustee or the Noteholder in the Indenture
Estate.
(e) If at any time the Owner Participant shall deem it no longer
necessary or prudent in order to conform to any applicable law or shall be
advised by its counsel that it is no longer necessary or prudent in the interest
of the Owner Trustee or the Owner Participant to maintain the appointment of
such additional or separate trustee as provided herein, the Owner Participant
and the Owner Trustee shall execute and deliver any agreement supplemental
hereto and all other instruments and agreements necessary or proper to remove
any such additional or separate trustee.
ARTICLE X
SUPPLEMENTS AND AMENDMENTS
TO TRUST AGREEMENT AND OTHER DOCUMENTS
Section 10.1. Supplements and Amendments and Delivery Thereof. Subject
to Section 12(d) of the Participation Agreement, this Agreement may not be
amended, supplemented or otherwise modified except by an instrument in writing
signed by the Owner Trustee and Owner Participant. Subject to Section 10.2
hereof and the applicable provisions of the Participation Agreement and
Indenture, the Owner Trustee will execute any amendment, supplement or other
modification of this Agreement or any other Operative Documents to which the
Owner Trustee is a party which it is requested to execute by Owner Participant
except that Owner Trustee shall not execute any such amendment, supplement or
other modification which, by the express provisions of any of the above
documents, requires the consent of any other party unless such consent shall
have been obtained; and provided, that, without the prior written consent of
Owner Participant, Owner Trustee shall not execute any such supplement,
amendment or modification.
Section 10.2. Discretion as to Execution of Documents. Prior to
executing any document required to be executed by it pursuant to the terms of
Section 10.1 hereof, the Owner Trustee shall be entitled to receive an opinion
of its counsel to the effect that the execution of such document is authorized
hereunder and under the other Operative Documents. If in the reasonable opinion
of the Owner Trustee any such document materially 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 unless Owner
Trustee is furnished with indemnification from Lessee or any other party upon
terms and in amounts reasonably satisfactory to Owner Trustee to protect the
Trust Estate and the Owner Trustee against any and all liabilities, costs and
expenses arising out of the execution of such documents.
13
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
Section 10.3. Absence of Requirements as to Form. It shall not be
necessary for any written request furnished pursuant to Section 10.1 hereof to
specify the particular form of the proposed documents to be executed pursuant to
such Section 10.1, but it shall be sufficient if such request shall indicate the
substance thereof.
Section 10.4. Distribution of Documents. Promptly after the execution
by the Owner Trustee of any document entered into pursuant to Section 10.1
hereof, the Owner Trustee shall mail, by certified mail, postage prepaid or send
by air courier, a conformed copy thereof to the Owner Participant, the Loan
Trustee and the Lessee, but the failure of the Owner Trustee to mail such
conformed copy shall not impair or affect the validity of such document.
Section 10.5. No Request Needed as to Lease Supplement and Trust
Indenture Supplement. No written request pursuant to Section 10.1 hereof shall
be required to enable Owner Trustee to enter into, pursuant to Section 3.1
hereof and the Indenture, the Indenture Supplement.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Termination of Trust Agreement. This Agreement and the
trust created hereby shall terminate and be of no further force or effect upon
the earlier of (a) sale, transfer 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 moneys 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 and the Lien of the Indenture
shall have been discharged with respect to the Trust Estate or (b) 90 years
after the date of the earliest execution of this Agreement by any party hereto,
but if this Agreement and the trust created hereby shall be or become authorized
under applicable law to be valid for a period subsequent to 90 years after the
earliest execution of this Agreement by any party hereto (or, without limiting
the generality of the foregoing, if legislation shall become effective providing
for the validity of this Agreement and the trust created hereby for a period in
gross exceeding the period for which this Agreement and the trust created hereby
are hereinabove stated to extend and be valid), then this Agreement and the
trust created hereby shall not terminate under this subsection (b) but shall
extend to and continue in effect, but only if such nontermination and extension
shall then be valid under applicable law, until the day preceding such date as
the same shall, under applicable law, cease to be valid; otherwise this
Agreement and the trust created hereby shall continue in full force and effect
in accordance with the term hereof, subject to the Owner Participant's right to
revoke the trust created hereby and cause the Trust Estate (to the extent
applicable, subject to the Lien of the Indenture and the right of Lessee to
approve such revocation) to be distributed.
Irrespective of any other provision of this Agreement, but subject to
Section 12(d) of the Participation Agreement, the Owner Participant, at its sole
option, may, at any time after the discharge of the Lien of the Indenture in
accordance with its terms, revoke the trust created hereby and vest in itself
title to the Aircraft, moneys or other property, proceeds and rights comprising
the Trust Estate upon delivery of written instructions to such effect to the
Owner Trustee. Upon receipt of such instructions and the satisfaction of all
liabilities of the Owner Participant to the Owner Trustee hereunder, the Owner
Trustee shall transfer to the Owner
14
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
Participant the Aircraft, moneys or other property, proceeds and rights
comprising the Trust Estate and the trust created hereby shall thereupon
terminate. In the event of the transfer of the Aircraft, moneys and other
property, proceeds and rights comprising the Trust Estate to the Owner
Participant, the Owner Participant will, to the extent of the Trust Estate and
to no greater extent, discharge the obligations of the Owner Trustee hereunder
and under the Operative Documents to which the Owner Trustee is a party (as such
obligations are limited in said instruments) (other than any obligations or
liabilities for which the Bank is answerable or accountable pursuant to this
Agreement or any other Operative Document to which the Owner Trustee is a party,
including without limitation, any obligation or liabilities attributable to the
Owner Trustee's gross negligence, willful misconduct or breach of any
representation, warranty, covenant or agreement in any such Operative Document).
In the event of such transfer, pursuant to this Section 11.1, the Owner
Participant will execute a written instrument or instruments in form and
substance satisfactory to the other parties thereto and their counsel,
evidencing the Owner Participant's full assumption of the aforementioned
obligations of the Owner Trustee. Nothing contained in this Section 11.1 shall
be deemed to impose on the Owner Participant any liability or obligation in the
event that the trust created hereby are terminated (whether by operation of law
or otherwise) other than expressly in accordance with the terms of this Section
11.1.
Irrespective of any other provision of this Agreement, so long as any
Equipment Note is outstanding, the Owner Participant may not terminate or revoke
the trust created hereby without the prior written consent of the Loan Trustee.
Section 11.2. Owner Participant Has No Legal Title to 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 Agreement or the trusts hereunder or entitle any successors or
transferees of the Owner Participant to an accounting or to the transfer of
legal title to any part of the Trust Estate.
Section 11.3. Assignment, Sale, etc. of Aircraft. Any assignment, sale,
transfer or other conveyance of the Aircraft or any part thereof by the Owner
Trustee made pursuant to the terms hereof or of the other Operative Documents
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 or any part thereof. 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 11.4. Trust Agreement for Benefit of Certain Parties Only.
Except for the terms of Section 19(c) of the Participation Agreement
incorporated in Article VIII hereof and except as otherwise provided in Articles
II, V and IX and Sections 10.1 and 10.4 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 Agreement; but this Agreement shall be held to be
for the sole and exclusive benefit of the Owner Trustee and the Owner
Participant.
15
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
Section 11.5. Citizenship of Owner Participant. If at any time there
shall be more than one Owner Participant, then any Owner Participant who shall
cease to be a Citizen of the United States shall have no voting or similar
rights under this Agreement and shall have no right to direct, influence or
limit the exercise of, or to prevent the direction or influence of, or place any
limitation on the exercise of, Owner Trustee's authority or to remove Owner
Trustee.
Section 11.6. Notices. Unless otherwise expressly permitted by the
terms of this Agreement, all notices, requests, demands, authorizations,
directions, consents, waivers and other communications required or permitted to
be made, given, furnished or filed under this Agreement shall be in writing,
shall refer specifically to this Agreement and shall be personally delivered,
sent by telecopy , telex or other means of electronic facsimile or
telecommunication transmission, sent by registered mail or certified mail,
return receipt requested, postage prepaid, or sent by overnight courier service,
in each case to the respective telex, telecopy or other number or address set
forth for such party as set forth in Section 18 of the Participation Agreement,
or to such other telex, telecopy or other number or address as each party hereto
may hereafter specify by notice to the other parties hereto. Each such notice,
request, demand, authorization, direction, consent, waiver or other
communication shall be effective when received or, if made, given, furnished or
filed (a) by telecopy or other means of electronic facsimile or
telecommunication transmission, when confirmed, or (b) by registered or
certified mail, three Business Days after being deposited, properly addressed,
in the U.S. mail.
Section 11.7. 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. If, however, any law pursuant to which such provisions are
held prohibited or unenforceable may be waived, such law is hereby waived by the
parties hereto to the full extent permitted, to the end that this Agreement
shall be deemed to be a valid and binding agreement in all respects, enforceable
in accordance with its terms.
Section 11.8. 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 11.9. Counterparts. This Agreement and any amendments, waivers,
consents or supplements hereto may be executed by the parties hereto in separate
counterparts (or upon separate signature pages bound together in one or more
counterparts), each of which when so executed and delivered shall be deemed to
be an original, but all such counterparts shall together constitute but one and
the same instrument.
Section 11.10. 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
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.
16
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
Section 11.11. Headings; References. THE HEADINGS AND THE TABLE OF
CONTENTS OF THE VARIOUS ARTICLES AND SECTIONS USED HEREIN ARE FOR CONVENIENCE OF
REFERENCE ONLY AND SHALL NOT DEFINE OR LIMIT ANY OF THE TERMS OR PROVISIONS
HEREOF AND SHALL NOT IN ANY WAY EFFECT THE CONSTRUCTION OF, OR BE TAKEN INTO
CONSIDERATION IN INTERPRETING THIS AGREEMENT.
Section 11.12. GOVERNING LAW. THIS TRUST AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF UTAH, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
Section 11.13. Performance by Owner Participant. Any obligation of the
Bank or the Owner Trustee hereunder or under any other Operative Document or
other document contemplated hereby, may be performed by the Owner Participant
(without any obligation of Owner Participant to do so), and any such performance
shall not be construed as a revocation of the trusts created hereby.
Section 11.14. Limitation on Owner Participant's Liability. The Owner
Participant shall not have any liability for the performance of this Trust
Agreement, except as expressly set forth herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
17
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above written.
XXXXXX LEASING COMPANY-1
By: /s/ X.X. Xxxxxxxx, Xx.
-----------------------
Name: X.X. Xxxxxxxx, Xx.
Title: Senior Director
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION
in its individual capacity and
as Owner Trustee
By: /s/ Xxxxx X. Xxxx
-----------------------
Name: Xxxxx X. Xxxx
Title: Vice President
SIGNATURE PAGE
AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)
SCHEDULE A
AIRCRAFT DESCRIPTION
One XxXxxxxxx Xxxxxxx MD-83 Aircraft bearing U.S. Registration Number N9630A and
Airframe Manufacturer's Serial No. 53561 with two Xxxxx & Whitney Model JT8D-219
engines bearing engine manufacturer's serial nos. P728123D and P728124D.
SCHEDULE A TO AMENDED & RESTATED TRUST AGREEMENT (AA EETC 2001-1)