AMENDED AND RESTATED]1 TRUST AGREEMENT [TN] Dated as of [DD] Between [OP] and WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION One Embraer Model EMB-145 XR Aircraft Bearing Manufacturer’s Serial No. [MSN] and U.S. Registration No. N[REG] with Two...
[AMENDED
AND RESTATED]1
TRUST
AGREEMENT [TN]
Dated
as
of [DD]
Between
[OP]
and
XXXXX
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
One
Embraer Model EMB-145 XR Aircraft
Bearing
Manufacturer’s Serial No. [MSN]
and
U.S.
Registration No. N[REG]
with
Two
Xxxxxxx Model AE3007A1E Engines
Bearing
Engine Manufacturer’s Serial Nos. CAE[E1] and CAE[E2]
_____________________
1. Delete
for New Aircraft.
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SECTION
10. SUPPLEMENTS AND AMENDMENTS TO TRUST
AGREEMENT AND OTHER DOCUMENTS
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11.5 Trust
Agreement for Benefit of Certain
Parties Only
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[AMENDED
AND RESTATED]2
TRUST
AGREEMENT [TN]
This
[AMENDED AND RESTATED]3 TRUST
AGREEMENT [TN], dated as of [DD], between [OP], a corporation organized under
the laws of the OP Jurisdiction (“Owner Participant”), and XXXXX FARGO BANK
NORTHWEST, NATIONAL ASSOCIATION, a national banking association (in its
individual capacity, “Xxxxx Fargo” and otherwise not in its individual capacity
but solely as trustee hereunder, “Owner Trustee”)[, which amends and restates in
its entirety the Trust Agreement [TN], dated as of [EPD], between the Owner
Participant and Xxxxx Fargo (the “Original Trust Agreement”).]4
In
connection with the issuance of the Equipment Notes on a non-recourse basis
by
the Owner Trustee in accordance with the Participation Agreement [TN], dated
as
of the date hereof, among Continental Airlines, Inc., Owner Participant, Owner
Trustee, Wilmington Trust Company and Embraer-Empresa Brasileira de Aeronáutica
S.A., Owner Participant and Xxxxx Fargo wish to [amend and restate the Original
Trust Agreement in its entirety as]5 [enter
into this agreement on the terms]6 set
forth
below.
Accordingly,
the parties hereto agree as follows:
W
I T
N E S S E T H:
SECTION
1. DEFINITIONS
Capitalized
terms used but not defined herein shall have the respective meanings set forth
or incorporated by reference, and shall be construed and interpreted in the
manner described, in Annex A to the Lease Agreement [TN], dated as of the date
hereof, between Owner Trustee and Continental Airlines, Inc, as
Lessee.
SECTION
2. DECLARATION
OF TRUST
Xxxxx
Fargo hereby declares that it will hold the Trust Estate as Owner Trustee upon
the trusts hereinafter set forth for the use and benefit of Owner Participant,
subject, however, to the provisions of and the Lien created by the Trust
Indenture and to the provisions of the Lease and the Participation
Agreement.
_____________________
2. Delete
for New Aircraft.
3. Delete
for New Aircraft.
4. Delete
for New Aircraft.
5. Delete
for New Aircraft.
6. Insert
for New Aircraft.
SECTION
3. AUTHORIZATION;
CONDITIONS PRECEDENT
3.1
Authorization
In
respect of the Aircraft, Owner Participant hereby authorizes and directs Owner
Trustee to, and Owner Trustee agrees for the benefit of Owner Participant that
it will, on and after the Closing Date, subject (except with respect to Section
3.1(a)) to due compliance with the terms of Section 3.2:
(a) execute
and deliver the Participation Agreement, the Trust Indenture, the Lease and
the
other Owner Trustee Agreements (in the respective forms in which they are
delivered from time to time by Owner Participant to Owner Trustee);
(b) subject
to the terms of this Trust Agreement, exercise (i) its rights and perform its
duties under the Participation Agreement, (ii) the rights and perform the duties
of Lessor under the Lease and (iii) its rights and perform its duties under
the
Trust Indenture and the other Owner Trustee Agreements;
(c) execute,
issue and deliver to Mortgagee for authentication and further delivery to the
Subordination Agent the Equipment Notes in the amount and as provided in Section
2 of the Participation Agreement;
[(d) purchase
the Aircraft pursuant to the Purchase Agreement as assigned to Owner Trustee
pursuant to the Purchase Agreement Assignment;]7
[(e) accept
from Seller the delivery of the Aircraft Xxxx of Sale, the FAA Xxxx of Sale
and
the invoice with respect to such Aircraft;]8
[(f) effect
the registration of the Aircraft with the FAA in the name of Owner Trustee
by
filing or causing to be filed with the FAA: (i) the FAA Xxxx of Sale;
(ii) an Aircraft Registration Application in the name of Owner Trustee
(including, without limitation, an affidavit from Owner Trustee in compliance
with the provisions of Section 47.7(c)(2) of the FAA Regulations); and
(iii) this Trust Agreement;]9
(g) execute
and deliver all agreements, documents and instruments referred to in Section
5
of the Participation Agreement to which Owner Trustee is to be a
party;
(h) execute
and deliver Lease Supplement No. 1 covering the Aircraft;
(i) execute
and deliver a Trust Indenture Supplement covering the Aircraft;
_____________________
7. Insert
for New Aircraft.
8. Insert
for New Aircraft.
9. Insert
for New Aircraft.
(j) [make
payment to the Owner Participant of the proceeds from the sale of the Equipment
Notes received by it;]10 [make
payment of Lessor’s Cost for the Aircraft from the aggregate amount of the
Commitments for the Aircraft of Owner Participant and Loan Participant, to
the
extent available to Owner Trustee, in the manner provided in the Participation
Agreement;]11 and
(k) execute
and deliver all such other instruments, documents or certificates and take
all
such other actions in accordance with the direction of Owner Participant, as
Owner Participant may deem necessary or advisable in connection with the
transactions contemplated by this Trust Agreement and the other Operative
Agreements.
3.2
Conditions Precedent
The
rights and obligations of Owner Trustee to take the actions required by Section
3.1 shall be subject to the following conditions precedent:
(a) Owner
Trustee shall have received the notice described in Section 5.1.1 of the
Participation Agreement, when and as required thereby, or shall have been deemed
to have waived such notice in accordance with Section 5.1.1 of the Participation
Agreement;
[(b) Each
Participant shall have made the full amount of its Commitment specified in
Section 2.1 of the Participation Agreement available to Owner Trustee, in
immediately available funds, in accordance with Sections 2 and 4 of the
Participation Agreement; and]12
(c) Owner
Participant shall have notified Owner Trustee that the terms and conditions
of
Section 5 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. Owner Participant shall, by instructing Owner Trustee to release
for filing with the FAA the FAA Filed Documents be deemed to have found
satisfactory to it, or waived, all such conditions precedent.
SECTION
4. RECEIPT,
DISTRIBUTION AND APPLICATION OF INCOME FROM THE TRUST ESTATE
4.1
Payments from Trust Estate Only
Except
as
provided in Section 7, all payments to be made by Owner Trustee under this
Trust
Agreement shall be made only from [(a) in the case of funds made available
in accordance with Section 4 of the Participation Agreement, the
Commitments (except as otherwise provided in Section 14 of the
Participation Agreement) and (b) in the case of all other
_____________________
10. Delete
for New Aircraft.
11. Insert
for New Aircraft.
12. Insert
for New Aircraft.
payments,]13
the
income from and proceeds of the Trust Estate to the extent that Owner Trustee
shall have received sufficient income or proceeds from the Trust Estate to
make
such payments. Owner Participant agrees that it will look solely to the income
from and proceeds of the Trust Estate (except as otherwise provided in Section
14 of the Participation Agreement) to the extent available for distribution
to
Owner Participant as provided in this Trust Agreement. Except as provided in
Section 7, Owner Participant agrees that Xxxxx Fargo is neither personally
liable to Owner Participant for any amounts payable nor subject to any other
liability under this Trust Agreement.
4.2
Distribution of Payments
4.2.1
Payments
to Mortgagee
Until
the
Trust Indenture shall have been discharged pursuant to Section 10.01 thereof,
all Rent, insurance proceeds and requisition or other payments of any kind
included in the Trust Estate (other than Excluded Payments) payable to Owner
Trustee shall be payable directly to Mortgagee (and, if any of the same are
received by Owner Trustee, shall upon receipt be paid over to Mortgagee without
deduction, set-off or adjustment of any kind) for distribution in accordance
with the provisions of Article III of the Trust Indenture; provided,
that
any payments received by Owner Trustee from (a) Airframe Manufacturer with
respect to Owner Trustee’s fees and disbursements or (b) Owner Participant
pursuant to Section 7 shall not be paid over to Mortgagee but shall be retained
by Owner Trustee and applied toward the purpose for which such payments were
made.
4.2.2
Payments
to Owner Trustee, Other Parties
After
the
Trust Indenture shall have been discharged pursuant to Section 10.01 thereof,
any payment of the type referred to in Section 4.2.1 (other than Excluded
Payments) received by Owner Trustee, any payment received from Mortgagee (other
than Excluded Payments) and any other amount received as part of the Trust
Estate and for the application or distribution of which no provision is made
in
this Trust Agreement shall be distributed forthwith upon receipt by Owner
Trustee in the following order of priority: first,
so much
of such payment as shall be required to reimburse Owner Trustee for any expenses
not otherwise reimbursed as to which Owner Trustee is entitled to be so
reimbursed pursuant to the provisions hereof shall be retained by Owner Trustee;
second,
the
balance, if any, shall be paid to Owner Participant.
4.2.3
Certain
Distributions to Owner Participant
All
amounts from time to time distributable by Mortgagee to Owner Participant
pursuant to the Trust Indenture shall, if paid to Owner Trustee, be distributed
by Owner Trustee to Owner Participant in accordance with the provisions of
Article III of the Trust 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
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.
_____________________
13. Insert
for New Aircraft.
4.2.4
Excluded
Payments
Any
Excluded Payments received by Owner Trustee shall be paid by Owner Trustee
to
the Person to whom such Excluded Payments are payable under the provisions
of
the Participation Agreement, the Tax Indemnity Agreement or the
Lease.
4.2.5
Payments to the Lessee
Notwithstanding
any other provision of any Operative Agreement to the contrary, if Lessee shall
have given to Owner Trustee written notice that an amount is due to Lessee
and
unpaid under the Indemnity Agreement, all amounts that would otherwise be paid
to Owner Participant under this Agreement shall instead be paid to Lessee until
such amount owed to Lessee shall have been paid in full, provided
that
Lessee shall not be entitled to payment of a Primary Amount (as defined in
the
Indemnity Agreement) under this Section 4.2.5 if at the time Lessee gives such
notice to Owner Trustee the Owner Participant is not the Airframe Manufacturer
or an Affiliate of Airframe Manufacturer.
4.3
Method
of
Payments
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 1 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, in investments
that would be permitted under Section 4.4 of the Lease, 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
5. DUTIES
OF
OWNER TRUSTEE
5.1
Notice
of
Event of Default
(a) If
Owner
Trustee shall have knowledge of a Lease Default or a Lease Event of Default
or
an Indenture Default or an Indenture Event of Default, Owner Trustee shall
give
to Owner Participant, Mortgagee and Lessee prompt telephonic or telex 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) or (e)
of
Section 4.02 of the Trust 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 paragraph (d) of Section 4.02 of the Trust Indenture, such notice
shall in no event be furnished later than ten days after Owner Trustee shall
first have knowledge of such event.
(b) Subject
to the terms of Section 5.3, Owner Trustee shall take such action or shall
refrain from taking such action, not inconsistent with the provisions of the
Trust Indenture, with respect to such Lease Default, Lease 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 Agreements, in the absence
of
Actual Knowledge of Owner Trustee, Owner Trustee shall not be deemed to have
knowledge of a Lease Default, Lease Event of Default, Indenture Default or
Indenture Event of Default unless notified in writing by Mortgagee, Owner
Participant or Lessee.
5.2
Action upon Instructions
Subject
to the terms of Sections 5.1 and 5.3, upon the written instructions at any
time
and from time to time of Owner Participant, Owner Trustee will take such of
the
following actions, not inconsistent with the provisions of the Lease and the
Trust Indenture, as may be specified in such instructions: (a) give such notice
or direction or exercise such right, remedy or power under this Trust Agreement
or any of the other Owner Trustee Agreements or in respect of all or any part
of
the Trust Estate, or take such other action, as shall be specified in such
instructions (including entering into such agreements and instruments as shall
be necessary under Section 10); (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 Agreements to be satisfactory to
Owner
Trustee, it being understood that without written instructions of Owner
Participant, Owner Trustee shall not approve any such matter as satisfactory
to
it; (d) subject to the rights of Lessee under the Operative Agreements, after
the expiration or earlier termination of the Lease, convey all of 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; and (e) take or refrain from taking such other
action or actions as may be specified in such instructions.
5.3
Limitations
on Duties
Owner
Trustee shall not be required to take any action under Section 5.1 (other than
the giving of the notices referred to therein) or 5.2 if Owner Trustee shall
reasonably believe such action is not adequately indemnified by Owner
Participant under Section 7, unless Lessee or Owner Participant agrees to
furnish such additional indemnity as shall reasonably be required, in manner
and
form satisfactory to Owner Trustee, and, in addition to the extent not otherwise
paid pursuant to the provisions of the Lease or of the Participation Agreement,
to pay the reasonable compensation of Owner Trustee for the services performed
or to be performed by it pursuant to such direction and any reasonable fees
and
disbursements of counsel or agents employed by Owner Trustee in connection
therewith. Owner Trustee shall not be required to take any action under Section
5.1 or 5.2 (other than the giving of the notices referred to therein) if Owner
Trustee shall have been advised by counsel that such action is contrary to
the
terms of any of the Owner Trustee Agreements or is otherwise contrary to Law
and
Owner Trustee has delivered to Owner Participant written notice of the basis
for
its refusal to act.
5.4
No
Duties
except as Specified; No Action except as Specified
5.4.1
No
Duties except as
Specified
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 Owner Trustee Agreements, except as expressly
required by the terms of any of the Owner Trustee Agreements, or (to the extent
not inconsistent with the provisions of the Trust Indenture) as expressly
provided by the terms hereof or in a written instruction from 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 Trust Agreement against Owner Trustee.
Xxxxx
Fargo agrees that it will, in its individual capacity and at its own cost or
expense (but without any right of indemnity in respect of any such cost or
expense hereunder or under the Participation Agreement), promptly take such
action as may be necessary to duly discharge and satisfy in full all Lessor
Liens attributable to it in its individual capacity which it is required to
discharge pursuant to Section 7.3.1 of the Participation Agreement and otherwise
comply with the terms of said Section binding upon it.
5.4.2
No
Action except as
Specified
Owner
Trustee shall have no power, right or authority to, and agrees that it will
not,
manage, control, use, sell, dispose of or otherwise deal with the Aircraft
or
any other part of the Trust Estate except (a) as expressly required by the
terms
of any of the Owner Trustee Agreements, (b) as expressly provided by the terms
hereof or (c) as expressly provided in written instructions from Owner
Participant pursuant to Section 5.1 or 5.2.
5.5
Satisfaction
of Conditions Precedent
Anything
in this Trust Agreement to the contrary notwithstanding, Owner Trustee shall,
subject to the satisfaction of special counsel for Owner Trustee of the
occurrence of all the applicable conditions precedent specified in Section
3.2,
comply with the provisions of Section 3.1.
5.6
Fixed
Investment Trust
Notwithstanding
anything in this Trust Agreement to the contrary, Owner Trustee shall not be
authorized and shall have no power to “vary the investment” of Owner Participant
within the meaning of Treasury Regulations Section 301.7701-4(c)(1), it being
understood that Owner Trustee shall have the power and authority to fulfill
its
obligations under Section 4.3 hereof, Section 4.3.3 of the Participation
Agreement and Section 4.4 of the Lease.
SECTION
6. OWNER
TRUSTEE
6.1
Acceptance
of Trusts and Duties
Xxxxx
Fargo accepts the trusts hereby created and agrees to perform the same as Owner
Trustee but only upon the terms hereof and the Trust Indenture applicable to
it.
Owner Trustee also agrees to receive and disburse all monies received by it
constituting part of the Trust
Estate
pursuant to the terms hereof. Xxxxx Fargo shall not be answerable or accountable
under any circumstances, except for (a) its own willful misconduct or gross
negligence (including, without limitation, in connection with any activities
of
Owner Trustee in violation of Section 5.4.2), (b) its failure (in its individual
capacity) to perform its obligations under Section 5.4.1, (c) its or Owner
Trustee’s failure to use ordinary care to receive or disburse funds or to comply
with the first sentence of Section 6.8, (d) liabilities that may result from
the
inaccuracy of any representation or breach of warranty of it in its individual
capacity (or from the failure by it in its individual capacity to perform any
covenant) in this Trust Agreement, the Trust Indenture, the Lease or the
Participation Agreement or elsewhere in any of the other Operative Agreements,
(e) taxes, fees or other charges on, based on or measured by any fees,
commissions or compensation received by Xxxxx Fargo in connection with the
transactions contemplated by this Trust Agreement and the other Operative
Agreements to which it (in its individual capacity or as Owner Trustee) is
a
party, (f) its or Owner Trustee’s failure to use ordinary care in receiving or
disbursing funds or in connection with its obligation to invest funds pursuant
to Section 4 of the Participation Agreement, Section 4.4 of the Lease or Section
4.3 hereof, (g) 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 5.1 (other than the first sentence thereof), 6.8 or 9.2 hereof
or
Section 4.01 of the Trust Indenture. Xxxxx Fargo 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.
6.2
Absence
of Certain Duties
(a) Except
in
accordance with written instructions furnished pursuant to Section 5.1 or 5.2
and except as provided in, and without limiting the generality of, Sections
3.1
and 5.4.1 and the last sentence of Section 9.1.2, and subject to Section 4.01
of
the Trust Indenture, neither Owner Trustee nor Xxxxx Fargo shall have any duty
(i) to see to any recording or filing of any Operative Agreement 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 Xxxxx Fargo to comply with the FAA reporting
requirements set forth in 14 C.F.R. § 47.45 and 14 C.F.R. § 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 Agreements, 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 7.3.1 or 7.3.2 of the Participation Agreement,
Section 4.01 of the Trust 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 owing with respect to or assessed or levied
against any part of the Trust Indenture Estate or the Trust Estate, except
as
provided in Section 6.3.9 of the Participation Agreement or (iv) to inspect
Lessee’s books and records with respect to the Aircraft at any time permitted
pursuant to the Lease.
(b) Notwithstanding
clause (a), Owner Trustee will furnish to Mortgagee and Owner Participant,
promptly upon receipt thereof, duplicates or copies of all reports, notices,
requests, demands, certificates, financial statements and other instruments
furnished to Owner Trustee under the Lease or any other Operative Agreement
except to the extent to which a responsible officer of Owner Trustee reasonably
believes (and confirms by telephone call with Owner Participant) that duplicates
or copies thereof have already been furnished to Owner Participant by some
other
person.
6.3
No
Representations or Warranties as to Certain Matters
NEITHER
XXXXX FARGO NOR OWNER TRUSTEE 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, THE ABSENCE OF ANY STRICT
LIABILITY OBLIGATION OR ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, WITH RESPECT TO THE AIRCRAFT OR ANY PART THEREOF WHATSOEVER, except
that Xxxxx Fargo warrants to Owner Participant that on the Delivery Date Owner
Trustee shall have received whatever title to the Aircraft that was conveyed
to
it and that the Aircraft shall, on the Closing Date and during the Term, be
free
of Lessor Liens attributable to Xxxxx Fargo or (b) any representation or
warranty as to the validity, legality or enforceability of this Trust Agreement
or any other Operative Agreement to which Xxxxx Fargo, in its individual
capacity or as Owner Trustee, is a party, or any other document or instrument,
or as to the correctness of any statement contained in any thereof except to
the
extent that any such statement is expressly made herein or therein by such
party
as a representation by Xxxxx Fargo, in its individual capacity or as Owner
Trustee, as the case may be, and except that Xxxxx Fargo hereby represents
and
warrants that it has all corporate power and authority to execute, deliver
and
perform this Trust Agreement and that this Trust Agreement has been, and
(assuming due authorization, execution and delivery by Owner Participant of
this
Trust Agreement) the other Operative Agreements to which it or Owner Trustee
is
a party have been (or at the time of execution and delivery of any such
instrument by it or Owner Trustee under this Trust Agreement 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 Owner Trustee, as the case may be, and that this Trust Agreement constitutes
the legal, valid and binding obligation of Xxxxx Fargo or Owner Trustee, as
the
case may be, enforceable against Xxxxx Fargo or Owner Trustee, as the case
may
be, in accordance with its terms.
6.4
No
Segregation of Monies; Interest
Monies
received by Owner Trustee under this Trust Agreement need not be segregated
in
any manner except to the extent required by Law, or except as provided in
written instructions from Owner Participant, and shall be invested as provided
in Section 4.3 hereof or Section 4.4 of the Lease.
6.5
Reliance
upon Certificates, Counsel and Agents
Owner
Trustee shall incur no liability to anyone in acting in good faith in reliance
upon and in accordance with 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 in this Trust Agreement, any request,
direction, order or demand of Owner Participant or Lessee mentioned in this
Trust Agreement or in any of the other Owner Trustee Agreements shall be
sufficiently evidenced by written instruments signed by the Chairman of the
Board, the President, any Vice President or any other officer and in the name
of
Owner Participant or Lessee, as the case may be. 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 of Directors or Executive 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 in this Trust Agreement,
Owner Trustee may, absent Actual Knowledge to the contrary, for all purposes
rely on a certificate signed by the Chairman of the Board, the President, any
Vice President or any other officer of Lessee, and the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of Lessee, as to such
fact
or matter, and such certificate shall constitute full protection to Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon and in accordance therewith. In the administration of trusts
under this Trust Agreement, Owner Trustee may execute any of the trusts or
powers and perform its powers and duties under this Trust Agreement directly
or
through agents or attorneys and may, at the expense of the Trust Estate, consult
with counsel, accountants and other skilled persons to be selected and employed
by it. Owner Trustee shall not be liable for anything done, suffered or omitted
in good faith by it in accordance with the advice or opinion of any such
counsel, accountants or other skilled persons.
6.6
Not
Acting in Individual Capacity
In
acting
under this Trust Agreement, Xxxxx Fargo acts solely as Owner Trustee and not
in
its individual capacity except as otherwise expressly provided in this Trust
Agreement or in the other Operative Agreements to which it is a party; and,
except as may be otherwise expressly provided in this Trust Agreement, the
Lease, the Participation Agreement and the Trust Indenture, all persons, other
than the Owner Participant as provided in this Trust Agreement or the Trust
Indenture, having any claim against Owner Trustee by reason of the transactions
contemplated hereby shall look only to the Trust Estate for payment or
satisfaction thereof except to the extent provided in Section 6.1 or otherwise
as Owner Trustee shall expressly agree otherwise in writing.
6.7
Fees;
Compensation
Airframe
Manufacturer shall pay the Transaction Expenses and ongoing fees of Owner
Trustee throughout the Term pursuant to Section 9.2 of the Participation
Agreement. The Trust Estate shall not have any liability for any such fees
and
expenses; provided,
that
the foregoing shall not limit the obligations of Owner Participant under
Sections 5.3 and 7; provided,
that
Owner Trustee shall have a Lien upon the Trust Estate for any such fee not
paid
by Airframe Manufacturer as contemplated by Section 9.2 of the Participation
Agreement and such Lien shall entitle Owner Trustee to priority as to payment
thereof over payment to any other Person under this Trust Agreement;
provided,
that
such Lien shall be subject and subordinate in all events to the Lien of the
Trust Indenture; and provided,
further,
that
Owner Trustee shall have no right to exercise, and shall not exercise, any
rights or remedies Owner Trustee may have with respect to such Lien unless
and
until the Secured Obligations have been paid and performed in full.
6.8
Tax
Returns
Owner
Trustee shall be responsible for the keeping of all appropriate books and
records relating to the receipt and disbursement of all monies under this Trust
Agreement or any agreement contemplated hereby. Owner Participant shall be
responsible for causing to be prepared and filed all income tax returns required
to be filed by Owner Participant. Owner Trustee shall be responsible for causing
to be prepared, at the expense of Airframe Manufacturer, all income tax returns
required to be filed with respect to the trust created hereby and shall execute
and file such returns; provided,
that
Owner Trustee shall send promptly a completed copy of such return to Owner
Participant not more than sixty nor less than fifteen days prior to the due
date
of the return, provided,
that
Owner Trustee shall have timely received all necessary information to complete
and deliver to Owner Participant such return. Owner Participant, upon request,
will furnish Owner Trustee with all such information as may be reasonably
required from Owner Participant in connection with the preparation of such
income tax returns. Owner Trustee shall keep copies of all returns delivered
to
or filed by it.
SECTION
7. INDEMNIFICATION
OF XXXXX FARGO BY OWNER PARTICIPANT
Owner
Participant hereby agrees, whether or not any of the transactions contemplated
hereby shall be consummated, to assume liability for, and hereby indemnifies,
protects, saves and keeps harmless, Xxxxx Fargo and its successors, assigns,
agents and servants, from and against any and all liabilities, obligations,
losses, damages, penalties, taxes (excluding any Taxes which are not required
to
be indemnified by Lessee pursuant to Section 9.1 or 9.3 of the Participation
Agreement and excluding any taxes payable by Xxxxx Fargo on or measured by
any
compensation received by Xxxxx Fargo for its services under this Trust
Agreement), claims, actions, suits, costs, expenses or disbursements (including,
without limitation, reasonable legal fees and expenses, but excluding internal
costs and expenses such as salaries and overhead, and including, without
limitation, any liability of an owner, any strict liability and any liability
without fault) of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against Xxxxx Fargo (whether or not also indemnified
against by Lessee under the Lease or under the Participation Agreement or also
indemnified against by any other Person; provided,
that
Owner Participant shall be subrogated to the rights of Owner Trustee against
Lessee or any other indemnitor) in any way relating to or arising out of this
Trust Agreement or any of the other Operative Agreements or the enforcement
of
any of the terms of any thereof, or in any way relating to or arising out of
the
manufacture, purchase, acceptance, nonacceptance, rejection, ownership,
delivery, lease, possession, use, operation, condition, sale, return or other
disposition of the Aircraft (including, without limitation, latent and other
defects, whether or not discoverable, and any claim for patent, trademark or
copyright infringement), or in any way
relating
to or arising out of the administration of the Trust Estate or the action or
inaction of Owner Trustee, under this Trust Agreement, except (a) in the case
of
gross negligence or willful misconduct on the part of Xxxxx Fargo, in its
individual capacity or as Owner Trustee, in the performance or nonperformance
of
its duties under this Trust Agreement or under any of the other Owner Trustee
Agreements or (b) those Claims resulting from the inaccuracy of any
representation or warranty of Xxxxx Fargo (or from the failure of Xxxxx Fargo
to
perform any of its covenants) in Section 6.3 of this Trust Agreement, in Section
6.03 of the Trust Indenture, in Section 4 of the Lease, in Section 6.3 and
Section 7.3 of the Participation Agreement or elsewhere in any of the other
Operative Agreements or (c) as may result from a breach by Xxxxx Fargo of its
covenant in the last sentence of Section 5.4.1 or (d) in the case of the failure
to use ordinary care on the part of Xxxxx Fargo, in its individual capacity
or
as Owner Trustee, in the receipt or disbursement of funds or in connection
with
its obligation to invest funds pursuant to Section 4 of the Participation
Agreement, Section 4.4 of the Lease or Section 4.3 hereof or in compliance
with
the provisions of the first sentence of Section 6.8 or (e) 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 5.1, 6.8 or 9.2
hereof or Section 4.01 of the Trust Indenture, or (f) those claims arising
under
any circumstances or upon any terms where Lessee would not have been required
to
indemnify Xxxxx Fargo pursuant to Section 9.1 or 9.3 of the Participation
Agreement (disregarding for purposes of this paragraph Sections 9.1.2(b) and
9.3.2(j)); provided,
that
before asserting its right to indemnification, if any, pursuant to this Section
7, Xxxxx Fargo shall first demand its corresponding right to indemnification
pursuant to Section 9 of the Participation Agreement (but need not exhaust
any
or all remedies available thereunder). The indemnities contained in this Section
7 extend to Xxxxx Fargo 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 Xxxxx Fargo has been reimbursed by the
Trust
Indenture Estate or the Trust Estate for amounts covered by the indemnities
contained in this Section 7). The indemnities contained in this Section 7 shall
survive the termination of this Trust Agreement. In addition, if necessary,
Xxxxx Fargo shall be entitled to indemnification from the Trust Estate, subject
to the Lien of the Trust Indenture, for any liability, obligation, loss, damage,
penalty, tax, claim, action, suit, cost, expense or disbursement indemnified
against pursuant to this Section 7 to the extent not reimbursed by Lessee,
Owner
Participant or others, but without releasing any of them from their respective
agreements of reimbursement; and, to secure the same Xxxxx Fargo shall have
a
lien on the Trust Estate, subject to the lien of the Trust Indenture and subject
further to the provisions of Section 6.7, which shall be prior to any interest
therein of Owner Participant. The payor of any indemnity under this Section
7
shall be subrogated to any right of the person indemnified in respect of the
matter as to which such indemnity was paid.
SECTION
8. TRANSFER
OF OWNER PARTICIPANT’S INTEREST
8.1
Transfer
of Interest
All
provisions of Section 10 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 Owner Participant of any of
its
right, title or interest in and to the Participation Agreement, the Trust Estate
or this Trust Agreement.
SECTION
9. SUCCESSOR
OWNER TRUSTEES; CO-TRUSTEES
9.1
Resignation
of Owner Trustee; Appointment of Successor
9.1.1
Resignation
or Removal
Owner
Trustee or any successor Owner Trustee (a) shall resign if required to do so
pursuant to Section 13.3 of the Participation Agreement or upon obtaining Actual
Knowledge of any facts that would cast doubt upon its continuing status as
a
Citizen of the United States and (b) may resign at any time without cause by
giving at least 60 days’ prior written notice to Owner Participant, Mortgagee
and Lessee, such resignation to be effective upon the assumption of the trusts
hereunder by the successor Owner Trustee under Section 9.1.2. In addition,
[subject to Section 12.1(b), Owner Participant may at any time remove Owner
Trustee, but only with]14[Owner
Participant may at any time remove Owner Trustee with or without]15
cause by
a notice in writing delivered to Owner Trustee, Mortgagee and Lessee, such
removal to be effective upon the assumption of the trusts hereunder by the
successor Owner Trustee under Section 9.1.2 [, provided,
that,
in the case of a removal without cause, unless a Lease Event of Default shall
have occurred and be continuing, such removal shall be subject to the consent
of
Lessee (which consent shall not be unreasonably withheld)]16.
In the
case of the resignation or removal of Owner Trustee, Owner Participant may
appoint a successor Owner Trustee by an instrument signed by Owner Participant,
with, unless a Lease Event of Default shall have occurred and be continuing,
the
consent of Lessee (which consent shall not be unreasonably withheld). If a
successor Owner Trustee shall not have been appointed within 30 days after
such
notice of resignation or removal, Owner Trustee, Owner Participant, Lessee
or
Mortgagee 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 the appointment by such court.
9.1.2
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
Mortgagee, an instrument accepting such appointment and assuming the obligations
of Owner Trustee, in its individual capacity and as Owner Trustee, under the
Owner Trustee Agreements, 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 under
this Trust Agreement with like effect as if originally named Owner Trustee
in
this Trust Agreement; 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
_____________________
14. Include
if OP not a Citizen of the U.S.
15. Delete
if
OP not a Citizen of the U.S.
16. Delete
if
OP not a Citizen of the U.S.
Owner
Trustee, upon the trusts herein expressed, all the estates, properties, rights,
powers and trusts of such predecessor Owner Trustee, and such predecessor Owner
Trustee shall duly assign, transfer, deliver and pay over to such successor
Owner Trustee all monies or other property then held by such predecessor Owner
Trustee upon the trusts herein expressed. Upon the appointment of any successor
Owner Trustee under this Section 9.1, 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 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.
9.1.3
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 Owner Trustee under this Trust Agreement
upon
reasonable or customary terms. No such successor Owner Trustee shall be located
in a jurisdiction which creates material adverse consequences for Lessee (unless
such material adverse consequences would be created by substantially all
jurisdictions where major banking or trust institutions are
located).
9.1.4
Merger,
Etc.
Any
corporation into which Xxxxx Fargo may be merged or converted or with which
it
may be consolidated, or any corporation resulting from any merger, conversion
or
consolidation to which Xxxxx Fargo shall be a party, or any corporation to
which
substantially all the corporate trust business of Xxxxx Fargo may be
transferred, shall, subject to the terms of Section 9.1.3, be Owner Trustee
under this Trust Agreement without further act, provided,
that
such corporation shall not also be the Mortgagee.
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
Owner Trustee being advised by counsel shall determine that it is so necessary
or prudent in the interest of Owner Participant or Owner Trustee, or Owner
Trustee shall have been directed to do so by Owner Participant, 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 or all of which shall
be a Citizen of the United States) approved by Owner Trustee and Owner
Participant, either to act as co-trustee, jointly with Owner Trustee, or to
act
as separate trustee under this Trust Agreement (any such co-trustee or separate
trustee being herein sometimes referred to as an “additional trustee”). In the
event Owner Participant shall not have joined in the execution of such
agreements’ supplemental hereto within ten days after the receipt of a written
request from Owner Trustee so to do, or in case a Lease Event of Default or
Indenture Event of Default shall occur and be continuing, Owner Trustee may
act
under the foregoing provisions of this Section 9.2 without the
concurrence
of Owner Participant; and Owner Participant hereby appoints Owner Trustee its
agent and attorney-in-fact to act for it under the foregoing provisions of
this
Section 9.2 in either of such contingencies.
(b) Every
additional trustee under this Trust Agreement shall, to the extent permitted
by
Law, be appointed and act, and Owner Trustee and its successors shall act,
subject to the following provisions and conditions:
(i) All
powers, duties, obligations and rights conferred upon Owner Trustee in respect
of the custody, control and management of monies, the Aircraft or documents
authorized to be delivered under this Trust Agreement or under the Participation
Agreement shall be exercised solely by Owner Trustee;
(ii) All
other
rights, powers, duties and obligations conferred or imposed upon Owner Trustee
shall be conferred or imposed upon and exercised or performed by 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) 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 under this Trust Agreement by such
additional trustee, except jointly with, or with the consent in writing of,
Owner Trustee;
(iv) No
trustee under this Trust Agreement shall be personally liable by reason of
any
action or omission of any other trustee under this Trust Agreement;
(v) Owner
Participant, at any time, by an instrument in writing may remove any such
additional trustee. In the event that Owner Participant shall not have joined
in
the execution of any such instrument within ten days after the receipt of a
written request from Owner Trustee so to do, Owner Trustee shall have the power
to remove any such additional trustee without the concurrence of Owner
Participant; and Owner Participant hereby appoints Owner Trustee its agent
and
attorney-in-fact to act for it in such connection in such contingency;
and
(vi) No
appointment of, or action by, any additional trustee will relieve Owner Trustee
of any of its obligations under, or otherwise affect any of the terms of, the
Trust Indenture or affect the interests of Mortgagee or the Note Holders in
the
Trust Indenture Estate.
(c) In
case
any separate trustee under this Section 9.2 shall die, become incapable of
acting, resign or be removed, the title to the Trust Estate and all rights
and
duties of such separate trustee shall, so far as permitted by Law, vest in
and
be exercised by Owner Trustee, without the appointment of a successor to such
separate trustee.
SECTION
10. SUPPLEMENTS
AND AMENDMENTS TO TRUST AGREEMENT AND OTHER DOCUMENTS
10.1
Supplements
and Amendments and Delivery Thereof
10.1.1
Supplements
and
Amendments
Subject
to Section 7.2.2 of the Participation Agreement, this Trust Agreement may not
be
amended, supplemented or otherwise modified except by an instrument in writing
signed by Owner Trustee and Owner Participant. Subject to Section 10.2, Section
9.01 of the Trust Indenture and Section 7.6.7 of the Participation Agreement,
Owner Trustee will execute any amendment, supplement or other modification
of
this Trust Agreement or of any other Owner Trustee Agreement which it is
requested in writing 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, (a) no such supplement,
amendment or modification shall (i) modify any of the provisions of Section
4 or
this Section 10.1, (ii) reduce, modify or amend any indemnities in favor of
Owner Participant as set forth in Section 9 of the Participation Agreement
or in
the Tax Indemnity Agreement, (iii) reduce the amount or extend the time of
payment of Basic Rent, Supplemental Rent, Stipulated Loss Value or Termination
Value as set forth in the Lease (except in accordance with Section 3 of the
Lease) or (iv) modify any of the rights of Owner Participant under the Trust
Indenture and (b) no such supplement, amendment or modification shall require
Owner Participant to invest or advance funds or shall entail any additional
personal liability or the surrender of any indemnification, claim or individual
right on the part of Owner Participant with respect to any agreement or
obligation.
10.1.2
Delivery
of Amendments and
Supplements to Certain Parties
A
signed
copy of each amendment or supplement referred to in Section 10.1.1 to which
Lessee is not a party shall be delivered promptly by Owner Trustee to Lessee,
and a signed copy of each amendment or supplement referred to in Section 10.1.1
shall be delivered promptly by Owner Trustee to Mortgagee.
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, Owner Trustee shall be entitled to receive an opinion of its
counsel to the effect that the execution of such document is authorized under
this Trust Agreement. If in the opinion of Owner Trustee any such document
adversely affects any right, duty, immunity or indemnity in favor of Owner
Trustee under this Trust Agreement or under any other Owner Trustee Agreement,
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.
10.3
Absence
of Requirements as to Form
It
shall
not be necessary for any written request furnished pursuant to Section 10.1
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.
10.4
Distribution
of Documents
Promptly
after the execution by Owner Trustee of any document entered into pursuant
to
Section 10.1, Owner Trustee shall mail, by certified mail, postage prepaid,
a
conformed copy thereof to Owner Participant, but the failure of Owner Trustee
to
mail such conformed copy shall not impair or affect the validity of such
document.
10.5
No
Request Needed as to Lease Supplement and Trust Indenture
Supplement
No
written request pursuant to Section 10.1 shall be required to enable Owner
Trustee to enter into, pursuant to Section 3.1 and the Lease or the Trust
Indenture, as the case may be, the Lease Supplement with Lessee and the Trust
Indenture Supplement.
SECTION
11. MISCELLANEOUS
11.1
Termination
of Trust Agreement
This
Trust Agreement and the trusts created hereby shall be of no further force
or
effect upon the earlier of (a) both the final discharge of the Trust Indenture
pursuant to Section 10.01 thereof and the sale or other final disposition by
Owner Trustee of all property constituting part of the Trust Estate and the
final distribution by Owner Trustee of all monies or other property or proceeds
constituting part of the Trust Estate in accordance with Section 4, provided,
that at
such time Lessee shall have fully complied with all of the terms of the Lease
and the Participation Agreement or (b) 21 years less one day after the death
of
the last survivor of all of the descendants of the grandparents of Xxxxx X.
Xxxxxxxxxxx living on the date of the earliest execution of this Trust Agreement
by any party hereto, but if this Trust Agreement and the trusts created hereby
shall be or become authorized under applicable Law to be valid for a period
commencing on the 21st anniversary of the death of such last survivor (or,
without limiting the generality of the foregoing, if legislation shall become
effective providing for the validity of this Trust Agreement and the trusts
created hereby for a period in gross exceeding the period for which this Trust
Agreement and the trusts created hereby are hereinabove stated to extend and
be
valid), then this Trust Agreement and the trusts created hereby shall not
terminate under this clause (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 Trust Agreement and the trusts created hereby
shall continue in full force and effect in accordance with the terms hereof.
Except as expressly set forth in Section 11.2, this Trust Agreement and the
trusts created hereby may not be revoked by Owner Participant.
11.2
Termination
at Option of the Owner Participant
Notwithstanding
Section 11.1 hereof, this Agreement and trust created hereby shall terminate
and
the Trust Estate shall be distributed to the Owner Participant, and this
Agreement shall be of no further force and effect, upon the election of the
Owner Participant by notice to the Owner Trustee, if such notice shall be
accompanied by the written agreement (in form and substance satisfactory to
the
Owner Trustee) of the Owner Participant assuming all obligations of the Owner
Trustee under or contemplated by the Operative Agreements or incurred by it
as
trustee hereunder and releasing the Owner Trustee therefrom; provided, however,
that such notice may be given only after the time the Lien of the Trust
Indenture is discharged under Section 10.01 of the Trust Indenture and after
the
Lease shall no longer be in effect.
11.3
Owner
Participant Has No Legal Title in Trust Estate
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
Owner Participant in and to the Trust Estate under this Trust Agreement shall
operate to terminate this Trust Agreement or the trusts under this Trust
Agreement or entitle any successors or transferees of Owner Participant to
an
accounting or to the transfer of legal title to any part of the Trust
Estate.
11.4
Assignment,
Sale, etc. of Aircraft
Any
assignment, sale, transfer or other conveyance of the Aircraft by Owner Trustee
made pursuant to the terms of this Trust Agreement or of the Lease or the
Participation Agreement shall bind Owner Participant and shall be effective
to
transfer or convey all right, title and interest of Owner Trustee and Owner
Participant in and to the Aircraft. No purchaser or other grantee shall be
required to inquire as to the authorization, necessity, expediency or regularity
of such assignment, sale, transfer or conveyance or as to the application of
any
sale or other proceeds with respect thereto by Owner Trustee.
11.5
Trust
Agreement for Benefit of Certain Parties Only
Except
for the terms of Section 10 of the Participation Agreement incorporated in
Section 8 and except as otherwise provided in Sections 4.2.5, 5.1, 6.7, 9,
10.1,
11.1 and 11.2, nothing in this Trust Agreement, whether express or implied,
shall be construed to give any person other than Owner Trustee and Owner
Participant any legal or equitable right, remedy or claim under or in respect
of
this Trust Agreement; and this Trust Agreement shall be held to be for the
sole
and exclusive benefit of Owner Trustee and Owner Participant.
11.6
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 Trust 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.
11.7
Notices
Unless
otherwise expressly permitted by the terms of this Trust Agreement, all notices,
requests, demands, authorizations, directions, consents, waivers and other
communications required or permitted to be made, given, furnished or filed
under
this Trust Agreement shall be in writing, shall refer specifically to this
Trust
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 in Schedule 1
to
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.
11.8
Severability
If
any
provision of this Trust Agreement shall be held invalid, illegal or
unenforceable in any respect in any jurisdiction, then, to the extent permitted
by Law, (a) all other provisions hereof shall remain in full force and effect
in
such jurisdiction and (b) such invalidity, illegality or unenforceability shall
not affect the validity, legality or enforceability of such provision in any
other jurisdiction. If, however, any Law pursuant to which such provisions
are
held invalid, illegal or unenforceable may be waived, such Law is hereby waived
by the parties hereto to the full extent permitted, to the end that this Trust
Agreement shall be deemed to be a valid and binding agreement in all respects,
enforceable in accordance with its terms.
11.9
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 Section 10; and any waiver of the terms hereof shall be effective only
in the specific instance and for the specific purpose given.
11.10
Counterparts
This
Trust Agreement and any amendments, waivers, consents or supplements hereto
may
be executed in any number of counterparts, each of which when so executed shall
be deemed to be an original, and all of which counterparts, taken together,
shall constitute one and the same instrument.
11.11
Binding Effect, Etc.
All
covenants and agreements contained in this Trust Agreement shall be binding
upon, and inure to the benefit of, Owner Trustee and its successors and assigns,
and Owner Participant and its successors and, to the extent permitted by Section
8, assigns. Any request,
notice,
direction, consent, waiver or other instrument or action by Owner Participant
shall bind its successors and assigns.
11.12
Headings;
References
The
headings and the table of contents used in this Trust Agreement 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 affect the construction of, or be
taken into consideration in interpreting, this Trust Agreement.
11.13
Name
of
the Trust
The
name
of the trust created hereby shall be “XJT Owner Trust [TN]” and such name may
(but need not) be used in any correspondence and filings made with respect
to
the security interest granted under the Trust Indenture or otherwise by the
Owner Trustee in connection with the trust created hereby.
11.14
Governing
Law
THIS
TRUST AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY THE LAWS OF THE STATE
OF
UTAH, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS.
[SECTION
12. CERTAIN LIMITATIONS
12.1
Limitations
on Control; Exceptions
(a) Notwithstanding
any other provision of this Agreement, at any time that the Owner Participant
is
not a citizen of the United States as defined in 49 U.S.C. Section 40102(a)(15)
(a “Citizen”), the Owner Participant shall have no rights or powers to direct,
influence, or control the Owner Trustee in the performance of the Owner
Trustee’s duties under this Agreement in connection with matters involving the
ownership and operation of the Aircraft by the Owner Trustee. In all matters
involving the ownership and operation of the Aircraft by the Owner Trustee,
the
Owner Trustee shall have absolute and complete discretion in connection
therewith and shall be free of any kind of influence or control whatsoever
by
the Owner Participant at any time that the Owner Participant is not a Citizen,
and the Owner Trustee shall exercise its duties under this Agreement in
connection with all matters involving the ownership and operation of the
Aircraft by the Owner Trustee as it, in its discretion, shall deem necessary
to
protect the interests of the United States, notwithstanding any countervailing
interest of any foreign power that, or whose citizens, may have a direct or
indirect interest in the Owner Participant and any such action by the Owner
Trustee shall not be considered malfeasance or in breach of any obligation
that
the Owner Trustee might otherwise have to the Owner Participant; provided,
however,
that
subject to the foregoing limitations, the Owner Trustee shall exercise its
discretion in all matters involving the ownership and operation of the Aircraft
by the Owner Trustee with due regard for the interests of the Owner Participant.
In exercising any of its rights and duties under this Agreement in connection
with matters that may arise not relating to the ownership and operation of
the
Aircraft, the Owner Trustee shall be permitted to seek the advice
of
the
Owner Participant before taking, or refraining from taking, any action with
respect thereto. The Owner Trustee shall notify the Owner Participant of its
exercise of rights and duties under the Trust Agreement in connection with
matters involving the ownership and operation of the Aircraft by the Owner
Trustee.
(b) At
any
time the Owner Participant is not a Citizen of the United States, the Owner
Participant shall have no rights or powers to remove the Owner Trustee except
with cause, including without limitation for gross negligence, willful
misconduct, misfeasance, malfeasance, or nonfeasance in, or material breach
of,
its duties under the Trust Agreement or applicable law.
(c) Subject
to the requirements of subsection (a) above, the Owner Trustee will not, without
the prior written consent of the Owner Participant, (a) sell, mortgage, pledge,
or otherwise dispose of the Aircraft or other assets held in the trust estate
relating thereto, except as otherwise provided for in this Agreement, or (b)
amend the Lease or other Operative Documents or give any consents thereunder.
(d) Notwithstanding
any other provision of this Section 12.1, the Owner Participant shall be
entitled to receive from the Owner Trustee, or otherwise, and the Owner Trustee
shall not be entitled to retain, all rent, payment, and insurance proceeds,
and
other payments of any kind or nature whatsoever payable to the Owner Participant
pursuant to the Trust Agreement or any other Operative Agreements in the same
manner as if the power of management and control had not been transferred to
the
Owner Trustee as provided in this Section 12.1.
(e) The
purpose of this Section 12.1 is to give the Owner Trustee the power to manage
and control the Aircraft with respect to matters involving the ownership and
operation of the Aircraft by the Owner Trustee so as to assure that (a) the
Aircraft shall be controlled with respect to such matters by a Citizen of the
United States, (b) if the Owner Participant is not a Citizen of the United
States, the Owner Participant shall have no power to influence or control the
exercise of the Owner Trustee’s authority with respect to such matters, and (c)
the Owner Trustee shall be able to give the affidavit required by Section
47.7(c)(2)(iii) of the Federal Aviation Regulations, 14 C.F.R. 47.7(c)(2)(iii).
The restrictions and requirements of this Section 12.1 shall be construed in
furtherance of such purpose.
(f) If
persons who are not “citizens of the United States” as defined in 49 U.S.C.
section 40102(a)(15) or resident aliens have the power to direct or remove
the
Owner Trustee, either directly or indirectly through the control of another
person, those persons together may not have more than 25% of the aggregate
power
to direct or remove the Owner Trustee. Nothing in this paragraph prevents those
Persons from having more than 25% of the beneficial interest in the Trust
Estate.]17
[This
space intentionally left blank.]
_____________________
17. Include
Section 12 if OP not a Citizen of the U.S.
IN
WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be
duly
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
[OP]
By
_______________________________
Name:
Title:
XXXXX
FARGO BANK NORTHWEST,
NATIONAL
ASSOCIATION
By
_______________________________
Name:
Title:
