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Exhibit 3.1
TRUST AGREEMENT
OF
AIRCRAFT FINANCE TRUST
This TRUST AGREEMENT, dated as of April 13, 1999 (this "Agreement"),
is by and between UNICAPITAL AFT-I, INC. and UNICAPITAL AFT-II INC., each a
Delaware corporation, as grantors (collectively the "Depositor"), and WILMINGTON
TRUST COMPANY, a Delaware banking corporation (the "Trustee"). The Depositor and
the Trustee hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Aircraft Finance Trust," in which name the Trust may conduct business, make and
execute contracts, and xxx and be sued.
2. Wilmington Trust Company is hereby appointed trustee of the Trust
and hereby accepts such appointment. The Depositor hereby sells, assigns,
transfers, conveys and sets over to the Trustee, as of the date hereof, the sum
of one dollar ($1.00). The Trustee hereby acknowledges receipt in trust of such
amount from the Depositor as of the date hereof and hereby declares that it will
hold such amount in trust upon and subject to the conditions set forth herein
for the use and benefit of the Depositor, as the sole beneficiary of the Trust.
It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under the Delaware Business Trust Act, 12 Del. Code
ss. 3801 et seq. (the "Business Trust Statute"), and that this document
constitute the governing instrument of the Trust. The business and purpose of
the Trust shall be to directly or indirectly acquire a portfolio of aircraft and
related leases and to securitize the lease receivables. The Trustee is hereby
authorized and directed by the Depositor to file a certificate of trust with the
Office of the Secretary of State of the State of Delaware, pursuant to the
Business Trust Statute.
3. The Trustee shall be the trustee required to 12 Del. Code ss.
3807(a), shall have only the rights, obligations and liabilities specifically
provided for herein and in the Business Trust Statute and shall have no implied
rights, obligations or liabilities with respect to the affairs of the Trust.
Unless and to the extent specifically directed by the Depositor and consented to
in writing by the Trustee, the Trustee shall not participate in any decisions
relating to, or possess any authority independently to manage or control, the
business and affairs of the Trust. Pursuant to Section 3806 of the Business
Trust Statute, the Trust shall be managed, and the Trust's business shall be
controlled and conducted, solely at the direction of the Depositor in accordance
with this Agreement. In no event shall the trustee have liability for any acts
or omissions of, or taken at the direction of, the Depositor. The Trustee shall
have the power and authority to take such actions, to execute, deliver,
acknowledge and file all necessary documents and to maintain all necessary
records on behalf of the Trust as required by the Business Trust Statute and
this Agreement or as directed in writing by the
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Depositor. The Trustee shall provide notice to the Depositor of its performance
of any of the foregoing. The Depositors shall reasonably keep the Trustee
informed of any actions taken by the Depositor with respect to the Trust that
affect the rights, obligations or liabilities of the Trustee hereunder or under
the Business Trust Statute. In no way limiting any of the foregoing, the Trust
is hereby expressly authorized to apply for and purchase directors and officers
insurance in such amounts and at such terms as the Depositor may instruct the
Trustee, and may form such subsidiaries, and settle such trusts, as the
Depositor may instruct the Trustee.
4. The Depositor is hereby specifically empowered, authorized and
directed to execute, deliver and perform on behalf of the Trust, such
instruments, agreements, deeds, conveyances and other documents as the Depositor
determines are necessary or desirable in connection with the Trust's business or
purposes, such determination to be conclusively, but not exclusively, evidenced
in each case by the execution and delivery of such instruments, agreements,
deeds, conveyances or other documents by the Depositor.
5. To the fullest extent permitted by law, the Depositor and the
Trust shall defend and indemnify the Trustee for, and hold it harmless against,
any and all losses and liabilities, obligations, damages, penalties, taxes
(excluding any taxes payable by the Trustee on or measured by any compensation
for services rendered by the Trustee under this Agreement), claims, actions,
suits or out-of-pocket expenses or costs of any kind and nature whatsoever
incurred or arising out of or in connection with the acceptance or
administration of this Trust (each, a "Claim"), including the reasonable costs
and out-of-pocket expenses of the Trustee defending itself against any Claim,
except to the extent that the same may be incurred or arise out of the bad
faith, gross negligence or willful misconduct of such Trustee. The foregoing
indemnification obligations shall survive the termination of this Agreement.
6. The Depositor and the Trustee will enter into an amended and
restated trust agreement, satisfactory to each such party, to provide for the
contemplated operation of the Trust created hereby, which agreement shall amend
and restate this Agreement in its entirety.
7. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to principles or rules
of conflicts of laws).
8. This Agreement may be executed and delivered in any number of
counterparts, each of which shall be an original, with the same effect as if all
signatures were on the same instrument.
[THE REMAINDER OF THIS PAGE IS BLANK
INTENTIONALLY; THE NEXT PAGE IS THE
SIGNATURE PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
WILMINGTON TRUST COMPANY
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
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Title: Financial Services Officer
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UNICAPITAL AFT-I, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: VP
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UNICAPITAL AFT-II, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: VP
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