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CONFORMED COPY
Exhibit 3.2
THIRD AMENDED AND RESTATED TRUST AGREEMENT
OF
XXXXXX XXXXXXX AIRCRAFT FINANCE
Dated as of March 3, 1998
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS
SECTION 1.01. Definitions.................................... 2
ARTICLE 2 CREATION OF MSAF
SECTION 2.01. Organizational Matters......................... 3
SECTION 2.02. Acceptance of Trust and Duties;
Controlling Trustees; Signatory Trustees....... 4
SECTION 2.03. Objects........................................ 5
SECTION 2.04. Prohibition and Limitation of Actions
by MSAF and the Trustees....................... 6
SECTION 2.05. Independent Business........................... 10
SECTION 2.06. Duration of MSAF............................... 11
SECTION 2.07. Trust for benefit of holders of
MSAF debt securities........................... 11
ARTICLE 3 TRUSTEES
SECTION 3.01. Number and Status.............................. 12
SECTION 3.02. Delaware Trustee............................... 12
SECTION 3.03. Controlling Trustees;
Alternate Controlling Trustee.................. 12
SECTION 3.04. Independent Trustees........................... 13
SECTION 3.05. Quorum......................................... 13
SECTION 3.06. Meetings....................................... 13
SECTION 3.07. Notice......................................... 14
SECTION 3.08. Voting Following the Appointment of
Independent Trustees........................... 14
SECTION 3.09. Resolutions.................................... 15
SECTION 3.10. Committees..................................... 15
SECTION 3.11. Vacancies...................................... 16
SECTION 3.12. Effect of Vacancies............................ 16
SECTION 3.13. Transactions with Trustees..................... 16
SECTION 3.14. Interests of Trustees.......................... 17
SECTION 3.15. Disclosure of Interests........................ 17
SECTION 3.16. Contract with Trustee.......................... 17
SECTION 3.17. Validity of Acts............................... 17
SECTION 3.18. Minute Book.................................... 18
SECTION 3.19. Fees and Remuneration.......................... 18
SECTION 3.20. Trustees May Rely.............................. 18
SECTION 3.21. Trustees Act Solely as Trustees................ 19
SECTION 3.22. No Expenses for the Trustees................... 19
SECTION 3.23. No Representations or Warranties as to
Certain Matters................................ 19
ARTICLE 4 INDEMNIFICATION OF TRUSTEES
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SECTION 4.01. Liability and Indemnity................... 19
SECTION 4.02. Agents.................................... 20
SECTION 4.03. Insurance................................. 20
SECTION 4.04. Non-exclusive Rights...................... 20
SECTION 4.05. Survival.................................. 20
ARTICLE 5 TERMINATION OF MSAF
SECTION 5.01. Termination of MSAF....................... 21
ARTICLE 6 AMENDMENTS
SECTION 6.01. Amendments................................ 21
ARTICLE 7 MISCELLANEOUS
SECTION 7.01. Notices................................... 22
SECTION 7.02. Governing Law............................. 23
SECTION 7.03. Jurisdiction.............................. 23
SECTION 7.04. Counterparts.............................. 23
SECTION 7.05. Agreement................................. 23
SECTION 7.06. Table of Contents; Headings............... 23
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THIRD AMENDED AND RESTATED TRUST AGREEMENT (this "TRUST AGREEMENT"), dated
as of March 3, 1998, among MS Financing Inc., a Delaware corporation, as
depositor (the "DEPOSITOR"), Wilmington Trust Company, a Delaware banking
corporation, which is acting hereunder not in its individual capacity but solely
as owner trustee (the "DELAWARE TRUSTEE"), Xxxx Xxxxx, Xxxxxxx Xxxxx and
Xxxxxxxxx Xxxxx (the "CONTROLLING TRUSTEES") and Xxxxx Xxxxxxxx as an alternate
for Xxxx Xxxxx in his capacity as Controlling Trustee (the "ALTERNATE
CONTROLLING TRUSTEE") and Xxxx X'Xxxxxxxx and Xxxxxxxxx Xxxxxxxx (the
"INDEPENDENT TRUSTEES" and, together with the Controlling Trustees, the
Alternate Controlling Trustee and the Delaware Trustee, the "TRUSTEES"). This
Trust Agreement amends and restates in its entirety the second amended and
restated trust agreement (the "SECOND AMENDED AND RESTATED TRUST AGREEMENT")
entered into among the Depositor, the Delaware Trustee, Xxxx Xxxxx, Xxxxxxx
Xxxxx and Xxxxxxxxx Xxxxx, as Controlling Trustees and Xxxxx Xxxxxxxx, as the
Alternate Controlling Trustee, dated as of February 18, 1998.
RECITALS
WHEREAS, pursuant to the original trust agreement entered into among the
Depositor, the Delaware Trustee and Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxxx and Xxxxxxx
Xxxxx, as controlling trustees, dated as of October 30, 1997, the First
Amended and Restated Trust Agreement, the Second Amended and Restated Trust
Agreement and a Certificate of Trust filed with the Secretary of State of
Delaware on October 31, 1997, the Depositor created a business trust under
Chapter 38 of Title 12 of the Delaware Code, 12 Del.C. Section 3801 et seq.
(the "BUSINESS TRUST ACT") named "Xxxxxx Xxxxxxx Aircraft Finance" ("MSAF") by
assigning and transferring to MSAF $1. (such $1., together with any and all
property owned directly or indirectly from time to time by MSAF, "TRUST
PROPERTY");
WHEREAS, MSAF was created to acquire, directly or indirectly through
intermediaries, aircraft and related assets from time to time and to issue and
sell debt securities to finance and refinance such acquisitions;
NOW, THEREFORE, it being the intention of the parties hereto to continue
MSAF as a business trust under the Business Trust Act and that this Trust
Agreement constitute the governing instrument of such business trust, the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
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SECTION 1.01. Definitions. The following terms, as used herein, have the
following meanings. Capitalized terms used but not defined herein have the
meaning assigned to such terms in the Indenture.
"AFFILIATE" means as to any Person, any other Person that, directly or
indirectly through one or more intermediaries, controls or is controlled by or
is under common control with such Person; provided, however that neither MSAF
nor any of its subsidiaries shall be considered to be Affiliates of the
Depositor or its Affiliates.
"ASSET PURCHASE AGREEMENT" has the meaning assigned to such term in
Section 2.03 herein.
"CONTROL" (including, with its correlative meanings, "CONTROLLED BY" and
"UNDER COMMON CONTROL WITH") means possession, direct or indirect, of the power
to direct or cause the direction of management or policies of a Person, whether
through the ownership of securities or partnership or other ownership
interests, by contract or otherwise).
"INDENTURE" means the Indenture dated as of March 3, 1998 between MSAF and
Bankers Trust Company, a New York banking corporation, as trustee.
"INDEPENDENT TRUSTEE" means a Trustee who is not at the time of his
appointment or at any time during his service as Trustee, and has not been for
the twenty-four months prior to his appointment as Trustee, an employee,
officer, director, creditor or supplier of Xxxxxx Xxxxxxx, Xxxx Xxxxxx,
Discover & Co., MSAF, or any Affiliate of any such person, except with the
approval of the Rating Agencies.
"PERSON" means an individual, corporation, partnership, limited liability
company, association, statutory business trust, common law trust, or other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.
"RATING AGENCIES" means Xxxxx'x Investors Service, Inc., Standard & Poor's
Rating Group and Duff & Xxxxxx Credit Rating Co. and any other nationally
recognized statistical rating organizations that from time to time are
contracted to rate debt securities issued by MSAF.
"SIGNATORY TRUSTEES" has the meaning assigned to such term in Section 2.02
herein.
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ARTICLE 2
CREATION OF MSAF
SECTION 2.01. Organizational Matters.
(a) The name of the trust continued hereby is "Xxxxxx Xxxxxxx Aircraft
Finance". To the extent practicable, the Trustees shall conduct MSAF's
activities, execute all documents and cause MSAF to xxx or be sued under the
foregoing name, which name (and the word "Trust" wherever used in this Trust
Agreement, except where the context otherwise requires) shall refer to the
business trust created hereby, or the Trustees acting on behalf of the Trust as
trustees, and not individually, and shall not refer to the officers, agents,
employees or beneficial owners of MSAF. Under circumstances in which the
Trustees determine that the use of the name "Xxxxxx Xxxxxxx Aircraft Finance"
is not practicable or desirable, they may change the name and use any other
designation or name for the Trust.
(b) The principal office of MSAF, and such additional offices as the
Controlling Trustees may determine to establish, shall be located at such place
or places inside or outside the State of Delaware as the Controlling Trustees
may designate from time to time.
(c) MSAF is a "business trust", the Trustees are the "trustees" and the
Depositor is the sole "beneficial" owner", within the meaning of the Business
Trust Act. MSAF shall not be deemed to be a general partnership, limited
partnership, joint venture, joint shares company or a corporation (but nothing
herein shall preclude MSAF from being treated for tax purposes as a trust under
the United States Internal Revenue Code of 1986, as amended).
(d) Legal title to all Trust Property shall be vested in MSAF as a
separate legal entity, except that the Controlling Trustees may cause legal
title to any Trust Property to be held by or in the name of any other Person as
nominee. The right, title and interest of the Trustees in and to the Trust
Property shall automatically vest in successor and additional Trustees upon
their qualification and acceptance of election or appointment as Trustees, and
they shall thereupon have all the rights and obligations of Trustees, whether
or not conveyancing documents have been executed and delivered. Written
evidence of the qualification and acceptance of election or appointment of
successor and additional Trustees may be filed with the records of MSAF and in
such other offices, agencies or places as the Controlling Trustees may deem
necessary or desirable. No beneficial owner of MSAF shall be deemed to have a
severable ownership interest in any individual asset of MSAF or any right of
partition or possession thereof.
(e) The Trustees hereby declare that they shall hold the Trust Property
upon the terms hereinafter set forth in this Trust Agreement.
SECTION 2.02. Acceptance of Trust and Duties; Controlling Trustees;
Signatory Trustees; Alternate Signatory Trustee.
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(a) Each of the Trustees accepts the trust created hereby and agrees to
perform its duties in accordance with all of the terms and conditions contained
in this Trust Agreement. In performing its duties hereunder, no Trustee shall
have any duty or liability with respect to the administration of MSAF, except
for its gross negligence or willful misconduct, and no implied duties shall be
read into this Trust Agreement against any Trustee. The Trustees shall not be
liable for the acts or omissions of the Depositor nor shall the Delaware
Trustee be liable for any act or omission by it in good faith in accordance
with directions of the Controlling Trustees or for any act or omission of the
Controlling Trustees or the Independent Trustees.
(b) The Controlling Trustees shall manage the property and affairs of MSAF
and specifically, for so long as any debt securities of MSAF remain
outstanding, for the benefit of the holders of such debt securities such that
no action shall be taken with respect to the Trust Property or the proceeds
thereof which contravenes or conflicts with any provision of the indenture or
other instrument governing such debt securities. The sole purpose of the
Delaware Trustee in entering into this Trust Agreement is to satisfy the
requirements of Section 3807(a) of the Business Trust Act. It is understood
and agreed by the parties hereto that the Delaware Trustee shall have none of
the duties or liabilities of the Controlling Trustees. The duties of the
Delaware Trustee shall be limited to (i) accepting legal process served on MSAF
in the State of Delaware and (ii) the execution of any certificates required to
be filed with the Delaware Secretary of State which the Delaware Trustee is
required to execute under Section 3811 of the Business Trust Act. To the
extent that, at law or in equity, the Delaware Trustee has duties (including
fiduciary duties) and liabilities relating thereto to MSAF or the Depositor, it
is hereby understood and agreed by the parties hereto that such duties and
liabilities are replaced by the duties and liabilities of the Delaware Trustee
expressly set forth in this Trust Agreement.
(c) Each of Xxxx Xxxxx and Xxxxxxxxx Xxxxx (the "SIGNATORY TRUSTEES") is
hereby authorized and directed to enter into the agreements approved by either
of them, such approval to be evidenced by the signature of any one of such
Signatory Trustees on any such agreement. Xxxxx Xxxxxxxx is hereby authorized
to act as an alternate for Xxxx Xxxxx in his capacity as Signatory Trustee (the
"ALTERNATE SIGNATORY TRUSTEE") The Delaware Trustee is further authorized and
directed to enter into such other documents and take such other action as
either Signatory Trustee shall specifically direct in written instructions
delivered to the Delaware Trustee; provided, however, that the Delaware Trustee
shall not be required to take any action if the Delaware Trustee shall
determine, or shall be advised by counsel, that such action is likely to result
in personal liability or is contrary to applicable law or any agreement to
which the Delaware Trustee is a party.
SECTION 2.03. Objects. MSAF is formed for the following objects only:
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(a) to act as the Depositor of MSA I, a Delaware business trust;
(b) to enter into such agreements as the Controlling Trustees see fit in
order to engage in the transactions contemplated hereby, including the Asset
Purchase Agreement dated as of November 10, 1997 between MSAF and International
Lease Finance Corporation (the "ASSET PURCHASE AGREEMENT");
(c) to acquire aircraft and related assets (including the capital stock of
one corporation) pursuant to the Asset Purchase Agreement;
(d) to purchase or otherwise acquire, directly or indirectly through
intermediaries, additional aircraft and related assets from time to time and
own, hold, convert, maintain, modify, manage, operate, lease, re-lease and sell
or otherwise dispose of aircraft assets and enter into all contracts and engage
in all related activities incidental thereto, including from time to time,
accepting, exchanging, holding or permitting any of its subsidiaries to accept,
exchange or hold promissory notes, contingent payment obligations or equity
interests of lessees or their affiliates issued in connection with the
bankruptcy, reorganization or other similar process, or in settlement of
delinquent obligations or obligations anticipated to be delinquent, of such
lessees or their respective Affiliates in the ordinary course of business;
(e) to provide loans to or guarantee or otherwise support the obligations
and liabilities of any of its subsidiaries on such terms and in such manner as
the Controlling Trustees see fit and (whether or not MSAF or any of its
subsidiaries shall derive a benefit therefrom) so long as such loans,
guarantees, or other supports are provided for the purposes set forth in
paragraphs 2.03(a), (b), (c) or (d) hereof; provided that no such loan,
guarantee or other support of the obligations or liabilities of any of its
subsidiaries shall be granted if it would materially adversely affect the
holders of any debt securities of MSAF;
(f) to finance and refinance the activities described in paragraphs
2.03(a), (b), (c) or (d) above through the offer, sale and issuance of any
securities of MSAF upon such terms and conditions as the Controlling Trustees
see fit, for cash or in payment or in partial payment for any property
purchased or otherwise acquired by MSAF or any of its subsidiaries and to grant
a security interest or other form of mortgage or charge in the Trust Property
or proceeds of the Trust Property whether now or hereinafter acquired;
(g) to engage in currency and interest rate exchange transactions for the
purposes of avoiding, reducing, minimizing, hedging against or otherwise
managing the risk of any loss, cost, expense or liability arising, or which may
arise, directly or indirectly, from any change or changes in any interest rate
or currency exchange rate or in the price or value of any of MSAF's or any of
its subsidiaries' property or assets, within limits determined by the
Controlling Trustees from time to time and submitted to the Rating Agencies,
including but not limited to dealings, whether involving purchases, sales or
otherwise, in foreign currency, spot and forward interest rate exchange rate
contracts, forward
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interest rate agreements, caps, floors and collars, futures, options, swaps and
any other currency, interest rate and other similar hedging arrangements and
such other instruments as are similar to, or derivatives of, any of the
foregoing;
(h) to establish, promote and aid in promoting, constituting, forming or
organizing companies, trusts, syndicates, partnerships or other entities of all
kinds in any part of the world for the purposes set forth in paragraph 2.03(a),
(b), (c) or (d) hereof and to acquire, hold and dispose of shares, securities
and other interests in, or causing the dissolution of any existing subsidiary;
(i) to take out, acquire, surrender and assign policies of insurance and
assurances with any insurance company or companies which MSAF or any of its
subsidiaries may think fit and to pay the premiums thereon; and
(j) to do all such things as may be deemed incidental or conducive to the
attainment of the above objects or any of them.
SECTION 2.04. Prohibition and Limitation of Actions by MSAF and the
Trustees.
(a) Prohibited activity. MSAF shall not, and the Trustees shall not cause
MSAF to engage in any activity other than as required or authorized by Section
2.03 in particular, or any other provision of this Trust Agreement. Any party
to this Trust Agreement and, for so long as any debt securities of MSAF remain
outstanding, any holders of such debt securities, may bring a proceeding to set
aside and enjoin the performance of any act or acts by MSAF that are not
required or authorized by Section 2.03 in particular or any other provision of
this Trust Agreement.
(b) Limitation on activities of new subsidiaries. The organizational
documents of any direct or indirect subsidiaries of MSAF formed or acquired on
or after the date hereof shall contain express objects clauses identical in all
material respects to those contained in the organizational documents of the
existing subsidiaries of MSAF.
(c) Limitation on employees. MSAF shall not, and MSAF shall not permit
any of its subsidiaries to, employ or maintain any employees other than as
required by any provisions of local law; provided that the trustees and
directors of MSAF and each of its subsidiaries shall not be deemed to be
employees for purposes of this Section 2.04(c).
(d) Limitation on Indebtedness. MSAF shall not, and MSAF shall not permit
any of its subsidiaries to, incur, create, issue, assume, guarantee or
otherwise become liable for or with respect to, or become responsible for, the
payment of, contingently or otherwise, whether present or future (in any such
case, to "INCUR"), Indebtedness.
For the purposes of this Trust Agreement, "INDEBTEDNESS" means, with
respect to any Person at any date of determination (without duplication), (i)
all indebtedness of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all
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obligations of such Person in respect of letters of credit or other similar
instruments (including reimbursement obligations with respect thereto), (iv)
all obligations of such Person to pay the deferred and unpaid purchase price of
property or services, which purchase price is due more than six months after
the date of purchasing such property or service or taking delivery and title
thereto or the completion of such services, and payment deferrals arranged
primarily as a method of raising finance or financing the acquisition of such
property or service, (v) all obligations of such Person under a lease of (or
other agreement conveying the right to use) any property (whether real,
personal or mixed) that is required to be classified and accounted for as a
capital lease obligation under U.S. GAAP, (vi) all Indebtedness (as defined in
clauses (i) through (v) of this paragraph) of other Persons secured by a lien
on any asset of such Person, whether or not such Indebtedness is assumed by
such Person, and (vii) all Indebtedness (as defined in clauses (i) through (v)
of this paragraph) of other Persons guaranteed by such Person.
Notwithstanding the foregoing, MSAF and any of its subsidiaries may incur
each and all of the following:
(i) Indebtedness in respect of any Initial Notes issued on the
Initial Closing Date;
(ii) Indebtedness in respect of any Refinancing Notes or other
Indebtedness described in the proviso to Section 5.02(c)(iii) of the
Indenture; provided that (A) such Refinancing Notes or other Indebtedness
receive ratings from the Rating Agencies at the close of such Refinancing
or repurchase equal to or higher than those of the subclass being
refinanced or repurchased (determined at the date of incurrence), (B)
taking into account such Refinancing or repurchase, MSAF receives Rating
Agency Confirmation prior to such Refinancing or repurchase with respect
to each subclass of MSAF Group Notes Outstanding at such time and (C) the
net proceeds of any such Refinancing or other Indebtedness shall be used
only to repay the Outstanding Principal Balance of the subclass of Notes
being so refinanced or repurchased (plus any Redemption Premium and
transaction expenses relating thereto);
(iii) Indebtedness in respect of guarantees by MSAF or any of its
subsidiaries of any other MSAF Group Member (other than the Guarantee
described in (v) below), provided that no such Indebtedness shall be
incurred if it would materially adversely affect the Noteholders;
(iv) Indebtedness in respect of any Issuer Additional Notes the
proceeds of which are applied to finance a Permitted Additional Aircraft
Acquisition; provided that (A) MSAF receives Rating Agency Confirmation
prior to the incurrence of such Indebtedness with respect to all of the
MSAF Group Notes Outstanding at such time and (B) the net
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proceeds of such Indebtedness shall be used only to finance such Permitted
Additional Aircraft Acquisition and (C) such Issuer Additional Notes will
be cross-collateralized with all Outstanding Notes by the Collateral under
the Security Trust Agreement;
(v) Indebtedness in respect of the Guarantee set forth in Article XII
of the Indenture; provided that (A) the Indebtedness guaranteed thereby is
incurred by a Guarantor that has guaranteed the Notes, (B) the
Indebtedness being guaranteed would be permitted pursuant to clause (ii)
or (iv) if such Indebtedness were incurred directly by the Issuer and (C)
the Indebtedness being guaranteed was issued by the Guarantor under an
indenture the terms of which (including the covenants and other
obligations of the Guarantor thereunder) are substantially identical to
those of the Indenture;
(vi) obligations to each Seller under each Acquisition Agreement and
any related lease assignment and assumption agreements and the documents
related thereto;
(vii) Indebtedness under any agreements between MSAF or any of its
subsidiaries and any other MSAF Group Members (each, an "INTERCOMPANY
LOAN"); provided that such Indebtedness shall be evidenced by promissory
notes and written notification shall have been given to each Rating Agency
of the incurrence of such Indebtedness; and
(viii) Indebtedness of MSAF Group under any Credit Facility.
For the purposes of this Trust Agreement, "GUARANTEE" means any
obligation, contingent or otherwise, of any Person directly or indirectly
guaranteeing any Indebtedness or other obligation of any other Person and,
without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of such Indebtedness or
other obligation of such other Person or (ii) entered into for purposes of
assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided that the term "guarantee" shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "guarantee" when used as a verb has a corresponding
meaning.
(e) Limitation on Consolidation, Merger and Transfer of Assets. MSAF
shall not, and MSAF shall not permit any of its subsidiaries to, consolidate
with, merge with or into, or sell, convey, transfer, lease or otherwise dispose
of its property and assets (as an entirety or substantially an entirety in one
transaction or in a series of related transactions) to, any other Person, or
permit any other Person to merge with or into MSAF or any of its subsidiaries,
unless (i) the resulting entity is a special purpose entity, the organizational
document of which is substantially similar to this Trust Agreement or the
equivalent organizational
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document of such MSAF subsidiary, as the case may be, and, after such
consolidation, merger, sale, conveyance, transfer, lease or other disposition,
payments from such resulting entity to the Noteholders do not give rise to any
withholding tax payments less favorable to the Noteholders than the amount of
any withholding tax payments which would have been required had such event not
occured, (ii) in the case of any consolidation, merger or transfer by MSAF, the
surviving successor or transferee entity shall expressly assume all of the
obligations of MSAF under the Indenture, the Notes and each other Related
Document to which MSAF is then a party, (iii) the Controlling Trustees shall
have obtained a Rating Agency Confirmation with respect to such merger, sale,
conveyance, transfer, lease or disposition, (iv) immediately after giving
effect to such transaction, no Event of Default shall have occurred and be
continuing and (v) MSAF delivers to the trustee under the Indenture an
Officer's Certificate and an opinion of counsel, in each case stating that such
consolidation, merger or transfer and such supplemental indenture comply with
the above criteria and, if applicable, Section 5.02(g) of the Indenture and
that all conditions precedent provided for in the Indenture relating to such
transaction have been complied with; provided that this covenant shall not
apply to any such consolidation, merger, sale, conveyance, transfer, lease or
disposition (a) within and among MSAF and any of its subsidiaries and any other
MSAF Group Member if such consolidation, merger, sale, conveyance, transfer,
lease or disposition, as the case may be, would not materially adversely affect
the Noteholders, (b) complying with the terms of Section 5.02(g) of the
Indenture or (c) effected as part of a single transaction providing for the
redemption or defeasance of MSAF Group Notes in accordance with Section 3.10 or
Article XI, respectively, of the Indenture.
SECTION 2.05. Independent Business. MSAF will conduct its activities, and
will procure that each of its subsidiaries will conduct its business such that
it is a separate and readily identifiable business from, and independent of, the
Depositor and any of its Affiliates (it being understood that the Depositor and
its Affiliates may publish financial statements that consolidate those of MSAF
and any of its Affiliates, if to do so is required by any applicable law or
accounting principles from time to time in effect and MSAF's subsidiaries may
file consolidated tax returns with the Depositor and its Affiliates for tax
purposes) and:
(a) it will observe, and will cause its subsidiaries to observe, all
formalities necessary to remain legal entities separate and distinct from the
Depositor and any of its Affiliates;
(b) it will maintain, and will cause its subsidiaries to maintain, each of
their respective assets and liabilities separate and distinct from those of the
Depositor and any of its Affiliates;
(c) it will maintain, and will cause its subsidiaries to maintain,
records, books, accounts, and minutes separate from those of the Depositor and
any of its
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Affiliates;
(d) it will pay its obligations, and will cause its subsidiaries to pay
each of their respective obligations in the ordinary course of business as
legal entities separate from the Depositor and any of its Affiliates;
(e) it will keep, and will cause its subsidiaries to keep, each of their
respective funds separate and distinct from any funds of the Depositor and any
of its Affiliates, and will receive, deposit, withdraw and disburse such funds
separately from any funds of the Depositor and any of its Affiliates;
(f) it will conduct its activities, and will cause each of its respective
subsidiaries to conduct their respective businesses in their own name, and not
in the name of the Depositor or any of its Affiliates;
(g) it will not agree, and will cause its subsidiaries not to agree, to
pay or become liable for any debt of the Depositor or any of its Affiliates;
(h) it will not hold out, and will cause its subsidiaries not to hold out,
that any of them is a division of the Depositor or any of its Affiliates or
that the Depositor or any of its Affiliates is a division of any of them;
(i) it will not induce, and will cause its subsidiaries not to induce, any
third party to rely on the creditworthiness of the Depositor or any of its
Affiliates in order that such third party will be induced to contract with it;
and
(j) it will not enter into, and will cause its subsidiaries not to enter
into, any transaction between any of them and the Depositor or any of its
Affiliates that are more favorable to the Depositor and its Affiliates than
transactions that MSAF and its subsidiaries would have been able to enter into
at such time on an arm's-length basis with a non-affiliated third party, other
than any agreements in effect on the date hereof or any transactions permitted
pursuant to the Indenture.
SECTION 2.06. Duration of MSAF. MSAF, unless terminated pursuant to the
provisions of Article 5, shall have a perpetual existence.
SECTION 2.07. Trust for benefit of holders of MSAF debt securities.
(a) This Trust Agreement has been entered into, and MSAF has been created,
in part to induce the holders from time to time of MSAF's debt securities to
purchase such debt securities. The Depositor and the Controlling Trustees
agree that the holders of MSAF's debt securities from time to time are third
party beneficiaries hereof, and shall be entitled to enforce the terms of this
Trust Agreement to the same extent as if they were parties hereto, subject,
however, to the provisions of the documents governing such debt securities.
(b) The Depositor and each other beneficial owner of MSAF hereby expressly
acknowledges and agrees that (i) its right, if any, to receive dividends or
other distributions of Trust Property is subordinate to the rights of the
holders from time to time of MSAF's debt securities and (ii) it may not
withdraw from MSAF or obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the Trust Property prior to the payment in
full of the principal and
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interest of, and any other amount owing with respect to, MSAF's debt securities
from time to time outstanding.
(c) Neither the bankruptcy, insolvency or other incapacity of the
Depositor or any other beneficial owner of MSAF, nor any transfer, by operation
of law or otherwise, by it of any interest in MSAF or the Trust Property, shall
(i) operate to terminate this Trust Agreement or MSAF, (ii) entitle the
Depositor's or such other beneficial owner's legal representatives or
transferees to claim an accounting or to take any action in any court for a
partition of the Trust Property or winding up of MSAF or (iii) otherwise affect
the rights, duties and liabilities of the parties hereto.
ARTICLE 3
TRUSTEES
SECTION 3.01. Number and Status. The number of Trustees shall be at least
six (at least two of which shall be Independent Trustees). At all times, one of
the Trustees shall be the Delaware Trustee or any successor or permitted
assigns.
SECTION 3.02. Delaware Trustee. (a) The Delaware Trustee shall be:
Wilmington Trust Company
(b) As required under the Business Trust Act, the Delaware Trustee is and
any successor or permitted assigns shall be:
(i) a natural Person who is a resident of the state of Delaware; or
(ii) if not a natural Person, an entity which has its principal place
of business in the State of Delaware, and otherwise meets the requirements
of applicable law.
(c) The Delaware Trustee may resign upon 30 days prior written notice to
MSAF, such resignation to be effective upon the appointment of a successor
Delaware Trustee. If no successor has been appointed within such 30 day
period, the Delaware Trustee may, at the expense of MSAF, petition a court to
appoint a successor Delaware trustee.
SECTION 3.03. Controlling Trustees; Alternate Controlling Trustee.
(a) The Controlling Trustees shall be:
Xxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxxxxxx Xxxxx
(b) The Alternate Controlling Trustee shall be:
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Xxxxx Xxxxxxxx
The Alternate Controlling Trustee is hereby authorized to act as an
alternate for Xxxx Xxxxx in his capacity as Controlling Trustee in accordance
with all of the terms and conditions contained in this Trust Agreement.
SECTION 3.04. Independent Trustees. (a) The Independent Trustees
shall be:
Xxxx X'Xxxxxxxx
Xxxxxxxxx Xxxxxxxx
(b) The Controlling Trustees shall have the power at any time and from
time to time to elect any person to be an Independent Trustee in order to
ensure that the provisions of this Trust Agreement as to the number of
Independent Trustees required to be in office are fulfilled. Any Independent
Trustee so appointed shall hold office until he resigns or is disqualified in
accordance with Section 3.11 hereof.
SECTION 3.05. Quorum. A meeting of the Controlling Trustees at which a
quorum is present shall be competent to exercise all powers and discretion for
the time being exercisable by the Controlling Trustees. The quorum necessary
for the transaction of the business of the Controlling Trustees shall be a
majority of the Controlling Trustees except that the quorum necessary for the
transaction of any business specified in Section 3.08(a), Section 3.08(b) or
unless the proviso of Section 3.08(c) applies, Section 3.08(c) shall be all
Controlling Trustees and all Independent Trustees. A Controlling Trustee,
notwithstanding his interest, may be counted in the quorum present at any
meeting at which he is appointed to hold office or place of profit under MSAF,
or at which the terms of his appointment are arranged, but he may not vote on
his own appointment or the terms thereof. In the absence of Xxxx Xxxxx at any
meeting of the Controlling Trustees, the Alternate Controlling Trustee, if
present, shall be counted in the quorum present at any such meeting.
SECTION 3.06. Meetings. (a) The Controlling Trustees may meet together
for the dispatch of business, adjourn and otherwise regulate their meetings as
they think fit. Questions arising at any meeting shall be determined by a
majority of the Controlling Trustees or, if less than three, all of the
Controlling Trustees. At any meeting of the Controlling Trustees in which Xxxx
Xxxxx is not present, the Alternate Controlling Trustee, if present, shall be
competent to exercise all powers and discretion exercisable by Xxxx Xxxxx in his
capacity as Controlling Trustee. A Controlling Trustee may, at any time, summon
a meeting of the Controlling Trustees by giving to each Controlling Trustee not
less than twenty-four hours'
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notice of the meeting; provided, that any meeting may be convened at shorter
notice and in such manner as all Controlling Trustees shall approve; provided
further, that, notwithstanding the provisions of Section 7.01 hereof, unless
otherwise resolved by the Controlling Trustees, notices of Controlling
Trustees' meetings need not be in writing. Notice of Controlling Trustees'
meetings need not be provided to the Alternate Controlling Trustee.
(b) If a Trustee is by any means in communication with one or more other
Trustees so that each Trustee participating in the communication can hear what
is said by any other of them, each Trustee so participating in the
communication is deemed to be present at a meeting with the other Trustees so
participating, notwithstanding that all the Trustees so participating are not
present together in the same place.
SECTION 3.07. Notice. Any notice to be given to or by any Person pursuant
to this Trust Agreement shall be in writing, save as provided in Section 3.06
hereof. Any Trustee present in person at any meeting of Trustees shall, for all
purposes, be deemed to have received due notice of such meeting and, where
requisite, of the purposes for which such meeting was convened. Any notice or
document served on a Trustee shall, notwithstanding that such Trustee be then
incompetent, disabled, dead or bankrupt and whether or not MSAF has notice of
his incompetency, disability, death or bankruptcy, be deemed to have been duly
served on such Trustee. Notwithstanding any of the provisions of this Trust
Agreement, any notice to be given by MSAF to a Trustee may be given in any
manner agreed in advance by any such Trustee.
SECTION 3.08. Voting Following the Appointment of Independent Trustees.
The Controlling Trustees shall possess and be entitled in their discretion to
exercise all rights and power to vote with respect to any lawful action to be
taken by the Controlling Trustees, except as otherwise provided herein. For so
long as any amount is outstanding or payable under any debt securities of MSAF,
the Trustees shall not have the power to take any action in their capacities as
Trustees that would cause MSAF or any of its subsidiaries to be in violation of
the terms governing any such debt securities. Each Controlling Trustee shall
have the power to vote an equal portion of all of the voting rights of MSAF.
A unanimous vote of the Controlling Trustees and the Independent Trustees
shall be required to:
(a) cause MSAF or any subsidiary of MSAF to take any action with respect
to the institution of any proceeding by MSAF or any subsidiary of MSAF seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order
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for relief or the appointment of a receiver, trustee, or other similar official
for it or any substantial part of its property, or seeking termination of
MSAF's existence other than pursuant to Section 5.01 or the existence of any
subsidiary of MSAF;
(b) in the case of any such proceeding instituted against MSAF or any
subsidiary of MSAF (but not instituted by it), cause MSAF or any subsidiary of
MSAF to take any action to authorize or consent to such proceedings (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for
MSAF or any subsidiary of MSAF, or any substantial part of its property, or
that of any subsidiary); and
(c) cause MSAF or any subsidiary of MSAF to take any action with respect
to any merger, consolidation, amalgamation, or reorganization of MSAF or any
subsidiary of MSAF, with or into any other person or entity, or any conveyance,
transfer or other disposal of (whether in one transaction or a series of
transactions) all or substantially all of the assets of MSAF or any subsidiary
of MSAF; provided, however, that such unanimous approval is not required so
long as the organizational documents of the resulting person or entity provide
for the unanimous approval of the Independent Trustees for the events
contemplated by this Section 3.08 and Section 6.01 hereof.
(d) sell, transfer, or otherwise dispose of, directly or indirectly, any
aircraft pursuant to Section 5.02(g)(v) of the Indenture whereby the net
present value of the cash Net Sale Proceeds is less than the Note Target Price.
SECTION 3.09. Resolutions. A resolution in writing signed by all of the
Controlling Trustees or by all of the members of a committee appointed pursuant
to Section 3.10 hereof or by all of the Controlling Trustees and Independent
Trustees pursuant to Section 3.08 hereof (as the case may be) shall be valid and
effectual as if it had been passed at a meeting of the Controlling Trustees or
of the relevant committee or of the Controlling Trustees and Independent
Trustees duly convened and held. Such resolution may consist of two or more
documents in like form each signed by one or more of the Controlling Trustees,
Independent Trustees or members of the relevant committee (as the case may be).
With respect to any resolutions requiring the approval of the Controlling
Trustees, the signature of Xxxx Xxxxx or the Alternate Controlling Trustee shall
count as one vote in favor of any such resolutions.
SECTION 3.10. Committees. Except as otherwise provided in Section 3.08,
the Controlling Trustees may delegate any of their powers to committees
consisting of any one or more of such Controlling Trustees or such other persons
as they think fit. Any committee so formed shall in the exercise of the powers
so delegated conform to any regulations that may be imposed on it by the
Controlling Trustees. The meetings and proceedings of any such committee
consisting of one or more persons shall be governed by the provisions of this
Trust Agreement regulating the meetings and proceedings of the Controlling
Trustees, so far as the same are applicable and are not superseded by any
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regulations made by the Trustees under this Trust Agreement.
SECTION 3.11. Vacancies. The office of a Trustee shall be vacated if:
(a) he resigns his office by 30 days prior written notice to MSAF, such
resignation to be effective upon the appointment of a successor Delaware
Trustee;
(b) in the case of an Independent Trustee, he ceases to be qualified as an
Independent Trustee within the meaning of that term contained in this Trust
Agreement;
(c) he dies or is unable or refuses to act;
(d) he is removed by a majority vote of the Controlling Trustees;
provided, that in the case of the removal of a Controlling Trustee, the
Controlling Trustee subject to the removal action shall not be required or
entitled to vote; or
(e) in the case of the Delaware Trustee, or any successor or permitted
assigns acting as the Delaware Trustee, the failure of the Delaware Trustee or
such successor or assigns to meet the requirements of Section 3807(a) of the
Business Trust Act.
SECTION 3.12. Effect of Vacancies. (a) Neither the death, resignation,
retirement, removal, bankruptcy, dissolution, liquidation, incompetence or
incapacity of a Trustee, including without limitation the failure of the
Delaware Trustee to meet the requirements of Section 3807(a) of the Business
Trust Act, shall operate to terminate this Trust Agreement or MSAF.
(b) If there is at any time a vacancy in the position of a Trustee, it is
understood that the Depositor may not exercise the voting power of the vacant
Trustee position and that said voting power will accordingly remain suspended
during such vacancy.
SECTION 3.13. Transactions with Trustees. A Trustee may hold any other
office or place of profit under MSAF (other than the office of auditor) in
conjunction with his office of Trustee and may act in a professional capacity to
MSAF on such terms as to tenure of office, remuneration and otherwise as the
Controlling Trustees may determine.
SECTION 3.14. Interests of Trustees. Subject to applicable Delaware law,
and provided that he has disclosed to the Controlling Trustees the nature and
extent of any of his material interests, a Trustee notwithstanding his office:
(a) may be a party to, or otherwise interested in, any transaction or
arrangement with MSAF or in which MSAF is otherwise interested;
(b) other than, in the case of an Independent Trustee, to the extent
limited by the definition thereof, may be a director or other officer of, or
employed by, or a party to any transaction or arrangement with, or otherwise
interested in, any body corporate promoted by MSAF or in which MSAF is
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otherwise interested or which engages in transactions similar to those engaged
in by MSAF and might present a conflict of interest for such Trustee in
discharging his duties; and
(c) shall not, by reason of his office, be accountable to MSAF or the
Depositor for any benefit which he derives from any such office or employment
or from any such transaction or arrangement or from any interest in such body
corporate and no such transaction or arrangement shall be liable to be avoided
on the ground of any such interest or benefit.
SECTION 3.15. Disclosure of Interests. For the purposes of Section 3.16:
(a) a general notice given to the Controlling Trustees that a Trustee is
to be regarded as having an interest of the nature and extent specified in the
notice in any transaction or arrangement in which a specified Person or class
of persons is interested shall be deemed to be a disclosure that the Trustee
has an interest in any such transaction of the nature and extent so specified;
and
(b) an interest of which a Trustee has no knowledge and of which it is
unreasonable to expect him to have knowledge shall not be treated as an
interest of that Trustee.
SECTION 3.16. Contract with Trustee. A Controlling Trustee,
notwithstanding his interest, may be counted in the quorum present at any
meeting at which any contract or arrangement in which he is interested is
considered and, subject to the provisions of Sections 3.13 and 3.14 hereof, he
may vote in respect of any such contract or arrangement.
SECTION 3.17. Validity of Acts. All acts done bona fide by any meeting of
Trustees or of a committee appointed by the Controlling Trustees or by any
Person acting as a Trustee shall, notwithstanding that it is afterwards
discovered that there was some defect in the appointment of any such Trustee or
committee or Person acting as aforesaid, or that they or any of them were
disqualified or had vacated office or were not entitled to vote, be as valid as
if every such Person had been duly appointed and was qualified and had continued
to be a Trustee or a member of a committee appointed by the Trustees and had
been entitled to vote.
SECTION 3.18. Minute Book. The Trustees shall cause all resolutions in
writing passed in accordance with Section 3.09 hereof and minutes of proceedings
at all meetings of the Trustees and of committees appointed by the Controlling
Trustees to be entered in books kept for the purpose. Any minutes of a meeting
shall be evidence of the proceedings.
SECTION 3.19. Fees and Remuneration. The Trustees shall be paid out of the
funds of MSAF their reasonable traveling and other expenses (including
reasonable fees and expenses of counsel and other experts) properly and
necessarily expended by them in attending meetings of the Trustees or otherwise
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in the affairs of MSAF. The Independent Trustees shall each be paid by way of
remuneration for their services a sum of $50,000 per annum which shall be
deemed to accrue from day to day. The Delaware Trustee shall be paid such
fee(s) as shall be agreed upon in a separate fee agreement to be entered into
by the Delaware Trustee and MSAF.
SECTION 3.20. Trustees May Rely. No Trustee shall incur any liability to
anyone in acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or paper
reasonably and in good faith believed by it to be genuine and signed by the
proper party or parties thereto. The Trustees may accept a copy of a resolution
of the board of directors of any corporate entity, certified by the secretary,
an assistant secretary or any other officer of the said entity, as duly adopted
and in full force and effect, as conclusive evidence that such resolution has
been adopted by said board and is in full force and effect. As to any fact or
matter, the manner of ascertainment of which is not specifically described
herein, the Trustees may for all purposes hereof rely on a certificate, signed
by or on behalf of the party executing such certificate, as to such fact or
matter, and such certificate shall constitute full protection of the Trustees
for any action taken or omitted to be taken by them in good faith in reliance
thereon. The Trustees may (a) exercise their powers and perform their duties by
or through such attorneys and agents as they shall appoint with due care, and
they shall not be liable for the acts or omissions of such attorneys and agents
and (b) consult with counsel, accountants and other experts, and the Trustees
shall be entitled to rely upon the advice of counsel, accountants and other
experts selected by them with due care and shall be protected by the advice of
such counsel in anything done or omitted to be done in accordance with such
advice. In particular, no provision of this Trust Agreement shall be deemed to
impose any duty on any Trustee to take any action if such Trustee shall have
been advised by counsel that such action would expose it to personal liability
or is contrary to the terms hereof, or is contrary to law.
SECTION 3.21. Trustees Act Solely as Trustees. In accepting and
performing the trusts created hereby, each Trustee acts solely as trustee
hereunder and not in any individual capacity, and all persons having any claims
against any Trustee by reason of the transactions contemplated hereby shall not
have any recourse to such Trustee in its individual capacity and shall look only
to the property of MSAF for payment or satisfaction thereof.
SECTION 3.22. No Expenses for the Trustees. No Trustee shall have any
obligation by virtue of this Trust Agreement to spend any of its own funds, or
to take any action which could, in the discretion of such Trustee, result in any
cost or expense being incurred by the Trustee, other than in connection with its
own obligations hereunder.
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SECTION 3.23. No Representations or Warranties as to Certain Matters .
NONE OF THE TRUSTEES, EITHER IN ITS CAPACITY AS TRUSTEE OR IN ITS INDIVIDUAL
CAPACITY, MAKES OR SHALL BE DEEMED TO HAVE MADE (A) ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, AIRWORTHINESS, VALUE, CONDITION,
WORKMANSHIP, DESIGN, COMPLIANCE WITH SPECIFICATIONS, CONSTRUCTION, OPERATION,
MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE OF THE AIRCRAFT
OWNED BY MSAF, AS TO THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT
DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR
COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT,
OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO THOSE AIRCRAFT OR ANY PART THEREOF.
ARTICLE 4
INDEMNIFICATION OF TRUSTEES
SECTION 4.01. Liability and Indemnity. (a) The Trustees shall not be
liable to MSAF or the Depositor for monetary damages for breach of fiduciary
duty as a Trustee to the fullest extent permitted by Delaware law.
(b) Each Trustee (and the officers, directors, employees, heirs, executors
or administrators of such Trustee) who was or is a party or is threatened to be
made a party to, or is involved in any threatened, pending or completed action
or suit by or in the right of MSAF to procure a judgment in its favor by reason
of the fact that such Person is or was a Trustee of MSAF or is or was serving
at the request of MSAF as a trustee, director or officer of another trust,
corporation, partnership, joint venture or other enterprise, shall be
indemnified and held harmless by MSAF to the fullest extent permitted by
Delaware law.
(c) MSAF does hereby assume liability for and agree to indemnify,
reimburse and hold harmless each of the Trustees from any and all losses,
liabilities or expenses that may be imposed on, incurred by or asserted against
any of them arising out of, in connection with or related to their performance
under this Trust Agreement to the fullest extent permitted by Delaware law.
(d) The right to indemnification conferred in this Article 4 shall also
include the right to be paid by MSAF the expenses incurred in connection with
any such proceeding in advance of its final disposition to the fullest extent
authorized by Delaware law. The right to indemnification conferred in this
Article 4 shall be a contract right.
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SECTION 4.02. Agents. MSAF may, by action of its Controlling Trustees,
provide indemnification to such of the agents of MSAF to such extent and to such
effect as the Controlling Trustees shall determine to be appropriate and
authorized by Delaware law.
SECTION 4.03. Insurance. MSAF shall have power to purchase and maintain
insurance on behalf of any Person who is or was a Trustee or agent of MSAF, or
is or was serving at the request of MSAF as a trustee, director, officer,
employee or agent of another trust, corporation, partnership, joint venture or
other enterprise against any expense, liability or loss incurred by such Person
in any such capacity or arising out of his status as such, whether or not MSAF
would have the power to indemnify him against such liability under Delaware law.
SECTION 4.04. Non-exclusive Rights. The rights and authority conferred in
this Article 4 shall not be exclusive of any other right which any Person may
otherwise have or hereafter acquire.
SECTION 4.05. Survival. Neither the amendment nor repeal of this Trust
Agreement, nor, to the fullest extent permitted by Delaware law, any adoption or
modification of law, shall eliminate or reduce the effect of this Article 4 in
respect of any acts or omissions occurring prior to such amendment, repeal,
adoption or modification.
ARTICLE 5
TERMINATION OF MSAF
SECTION 5.01. Termination of MSAF. (a) MSAF shall dissolve only: (i) upon
satisfaction in full by MSAF of all debt securities issued by MSAF in accordance
with their respective terms and (ii) with the consent of all of the Controlling
Trustees.
(b) As soon as is practicable after the occurrence of the events referred
to in Section 5.01(a) above, the Controlling Trustees shall, after paying or
making provision for the payment of all obligations of MSAF in accordance with
applicable law, file a certificate of cancellation with the Secretary of State
of the State of Delaware, and thereupon MSAF shall terminate.
(c) The provisions of Article 4 shall survive termination of MSAF.
ARTICLE 6
AMENDMENTS
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SECTION 6.01. Amendments. (a) This Trust Agreement may only be amended
by a written instrument approved and executed by:
(i) a majority of the Controlling Trustees; and
(ii) if the amendment affects the rights, powers, duties or
obligations of the Delaware Trustee, the Delaware Trustee;
provided, however, that if the amendment affects (A) the rights, powers,
duties or obligations, including but not limited to, the events contemplated by
Section 3.08 hereof, of the Independent Trustees, (B) any organizational
documents of any subsidiaries of MSAF, to the extent such amendment would
affect the rights, powers or duties of the independent trustees or directors of
such subsidiary comparable to those in Sections 3.08 and 6.01 hereof or (C) any
of the provisions of Sections 2.02(b), 2.07 or 6.01, such amendment may only be
affected by a written instrument approved and executed by all of the
Controlling Trustees and Independent Trustees.
(b) At such time after MSAF has issued any debt securities that remain
outstanding, any amendment that would adversely affect the rights, privileges
or preferences of any holder of such debt securities, as determined by the
Controlling Trustees, may be effected only with such additional requirements as
may be set forth in the terms of the indenture or other instrument governing
such debt securities.
(C) Notice of each amendment to this Trust Agreement shall be given to
each of the Rating Agencies.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Notices. All notices, consents, directions, approvals,
instructions, requests and other communications required or permitted by such
agreement to be given to any Person shall be in writing, and any such notice
shall become effective ten days after being deposited in the mails, certified or
registered, return receipt requested, with appropriate postage prepaid for first
class mail, or if delivered by hand or courier service or in the form of a
facsimile, when received (and, in the case of a facsimile, receipt of such
facsimile is confirmed to the sender), and shall be directed to the address or
facsimile number of such Person set forth below:
If to the Delaware Trustee:
Wilmington Trust Company
Attention: Corporate Trust Administration
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Square North
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Xxxxxxxxxx, Xxxxxxxx 00000
Fax:(000) 000-0000
If to the Depositor, to:
MS Financing Inc.
x/x Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxxx Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Attention: Mr. Xxxxx Xxxxxxxx
Fax: + 00-000-000 4328
With a copy to:
Xxxxx Xxxx & Xxxxxxxx
0 Xxxxxxxxx'x Xxxxx
Xxxxxx XX0X 0XX
Attention: Mr. Xxx Xxxx
Fax: + 00-000-000 1400
From time to time any party to such agreement may designate a new address
or number for purposes of notice thereunder by notice to each of the other
parties thereto.
SECTION 7.02. Governing Law. This Trust Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware.
SECTION 7.03. Jurisdiction. The Depositor hereby submits to the
jurisdiction of the Courts of Delaware or the United States Federal Courts
sitting therein, in any action or proceeding brought to enforce or otherwise
arising out of or relating to this Trust Agreement. The Depositor irrevocably
appoints Corporation Service Corporation, with an office on the date hereof at
0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000, as its agent
for service of process to receive on behalf of the Depositor service of copies
of the summons and complaint and any other process which may be served in any
such action or proceeding. Such service may be made by mailing or delivering a
copy of such process to the Depositor in care of such process agent, at the
address of such process agent stated above, and the Depositor hereby irrevocably
authorizes and directs such process agent to accept such service on its behalf.
As an alternative method of service of process, the Depositor consents to the
service of any and all process in any such action or proceeding by the mailing
of copies of such process to the Depositor by registered or certified mail at
its address
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designated in Section 7.01. In addition, the Depositor hereby irrevocably
waives to the fullest extent permitted by law any objection which it may now or
hereafter have to the laying of venue in any such action or proceeding in the
Courts of the State of Delaware or the United States Federal Courts sitting
therein, and hereby further irrevocably waives any claim that any such forum is
an inconvenient forum.
SECTION 7.04. Counterparts. This Trust Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
SECTION 7.05. Agreement. The terms of this Trust Agreement shall be
binding upon and inure to the benefit of and shall be enforceable by the
Depositor and the Trustees and their respective successors and assigns.
SECTION 7.06. Table of Contents; Headings. The table of contents and
headings of the various articles, sections and other subdivisions of this Trust
Agreement are for convenience of reference only and shall not modify, define or
limit any of the terms or provisions of such agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Trust Agreement
or caused this Trust Agreement to be duly executed by their respective officers
hereunto duly authorized, as of the day and year first above written.
WILMINGTON TRUST COMPANY, as Delaware Trustee
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
MS FINANCING INC., as the Depositor
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
XXXX XXXXX, as Controlling Trustee
/s/ Xxxx Xxxxx
XXXXXXXXX XXXXX, as Controlling Trustee
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/s/ Xxxxxxxxx Xxxxx
XXXXXXX XXXXX, as Controlling Trustee
/s/ Xxxxxxx Xxxxx
XXXX X'XXXXXXXX, as Independent Trustee
/s/ Xxxx X'Xxxxxxxx
XXXXXXXXX XXXXXXXX, as Independent Trustee
/s/ Xxxxxxxxx Xxxxxxxx
XXXXX XXXXXXXX, as Alternate Controlling Trustee
/s/ Xxxxx Xxxxxxxx
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