CONFORMED COPY
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TRUST AGREEMENT [N586ML]
Dated as of December 10, 1999
between
ICX CORPORATION,
as Owner Participant
and
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
as Owner Trustee
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One Canadair Regional Jet Series 200 ER Aircraft
N586ML
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND TERMS................................................. 1
Section 1.01. Definitions...................................................... 1
ARTICLE II AUTHORITY TO EXECUTE CERTAIN OPERATIVE AGREEMENTS; DECLARATION OF
TRUST................................................................. 2
Section 2.01. Authority to Execute Documents................................... 2
Section 2.02. Declaration of Trust............................................. 2
ARTICLE III ACCEPTANCE AND DELIVERY OF AIRCRAFT; LEASE OF AIRCRAFT; REPLACEMENT... 2
Section 3.01. Authorization.................................................... 2
Section 3.02. Conditions Precedent............................................. 3
Section 3.03. Postponement of Delivery Date.................................... 4
Section 3.04. Authorization in Respect of a Replacement Airframe
or Replacement Engines........................................... 4
Section 3.05. Trust Agreement Remaining in Full Force and Effect............... 5
Section 3.06. Authorization in Respect of Return of an Engine.................. 5
ARTICLE IV RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM THE TRUST ESTATE. 5
Section 4.01. Distribution of Payments......................................... 5
Section 4.02. Method of Payments............................................... 5
ARTICLE V DUTIES OF THE OWNER TRUSTEE........................................... 6
Section 5.01. Notice of Event of Loss and Event of Default..................... 6
Section 5.02. Action Upon Instructions......................................... 7
Section 5.03. Indemnification.................................................. 7
Section 5.04. No Duties Except as Specified in Trust Agreement or Instructions. 7
Section 5.05. No Action Except Under Specified Documents or Instructions....... 8
ARTICLE VI THE OWNER TRUSTEE..................................................... 8
Section 6.01. Acceptance of Trusts and Duties.................................. 8
Section 6.02. Absence of Certain Duties........................................ 9
Section 6.03. No Representations or Warranties as to Certain Matters........... 9
Section 6.04. No Segregation of Monies Required; Investment Thereof............ 10
Section 6.05. Reliance Upon Certificates, Counsel and Agents................... 10
Section 6.06. Not Acting in Individual Capacity................................ 11
Section 6.07. Fees; Compensation............................................... 11
Section 6.08. Tax Returns...................................................... 11
Section 6.09. Fixed Investment Trust........................................... 12
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PAGE
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ARTICLE VII INDEMNIFICATION OF THE OWNER TRUSTEE BY THE OWNER PARTICIPANT......... 12
Section 7.01. The Owner Participant to Indemnify the Owner Trustee............. 12
ARTICLE VIII SUCCESSOR OWNER TRUSTEES; CO-TRUSTEES................................. 13
Section 8.01. Resignation of the Owner Trustee; Appointment of Successor....... 13
Section 8.02. Co-Trustees and Separate Trustees................................ 14
ARTICLE IX SUPPLEMENTS AND AMENDMENTS TO TRUST AGREEMENT AND OTHER DOCUMENTS..... 16
Section 9.01. Supplements and Amendments....................................... 16
Section 9.02. Discretion as to Execution of Documents.......................... 16
Section 9.03. Absence of Requirements as to Form............................... 16
Section 9.04. Distribution of Documents........................................ 17
ARTICLE X MISCELLANEOUS......................................................... 17
Section 10.01. Termination of Trust Agreement................................... 17
Section 10.02. The Owner Participant Has No Legal Title in Trust Estate......... 18
Section 10.03. Assignment, Sale, etc., of Aircraft.............................. 18
Section 10.04. Trust Agreement for Benefit of Certain Parties Only.............. 18
Section 10.05. Notices.......................................................... 18
Section 10.06. Severability..................................................... 18
Section 10.07. Waivers, etc..................................................... 18
Section 10.08. Counterparts..................................................... 18
Section 10.09. Binding Effect, etc.............................................. 19
Section 10.10. Headings; References............................................. 19
Section 10.11. GOVERNING LAW.................................................... 19
Section 10.12. Administration of Trust.......................................... 20
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TRUST AGREEMENT [N586ML]
This TRUST AGREEMENT [N586ML], dated as of December 10, 1999 between ICX
CORPORATION, an Ohio corporation (together with its successors and permitted
assigns, the "Owner Participant"), and FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, a national banking association, in its individual capacity only as
expressly stated herein and otherwise not in its individual capacity but solely
as trustee hereunder (herein in such capacity with its permitted successors and
assigns called the "Owner Trustee").
W I T N E S S E T H :
- - - - - - - - - -
ARTICLE I
DEFINITIONS AND TERMS
Section 1.01. Definitions. Unless the context shall otherwise require and
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except as contained in this Section 1.01, the capitalized terms used herein
shall have the respective meanings assigned thereto in the Lease (as hereinafter
defined) for all purposes hereof. All definitions contained in this Section 1.01
shall be equally applicable to both the singular and plural forms of the terms
defined. For all purposes of this Trust Agreement the following terms shall have
the following meanings:
"First Union" means First Union Trust Company, National Association, a
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national banking association.
"Lease" means Lease Agreement [N586ML] dated as of December 10, 1999,
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between the Lessor and the Lessee, as the same may be modified, amended or
supplemented from time to time. The term "Lease" shall also include each Lease
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Supplement entered into pursuant to the terms of the Lease.
"Lessee" means Midway Airlines Corporation, a Delaware corporation, and its
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successors and permitted assigns, as the lessee under the Lease.
"Owner Participant" means the Person identified as such in the introduction
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hereto.
"Owner Trustee" means the Person identified as such in the introduction
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hereto.
"Participation Agreement" means Participation Agreement [N586ML], dated as
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of December 10, 1999, among the Lessee, the Owner Participant and the Lessor, as
the same may be amended, modified or supplemented from time to time.
"Trust Agreement" means this Trust Agreement [N586ML] dated as of December
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10, 1999 between First Union and the Owner Participant, as the same may be
amended, modified or supplemented from time to time.
"Trust Estate" has the meaning given to such term in the Participation
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Agreement.
ARTICLE II
AUTHORITY TO EXECUTE CERTAIN OPERATIVE AGREEMENTS;
DECLARATION OF TRUST
Section 2.01. Authority to Execute Documents. The Owner Participant
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hereby authorizes and directs the Owner Trustee to do the following, and the
Owner Trustee agrees for the benefit of the Owner Participant that it will do
the following (i) to execute and deliver the Participation Agreement, the Lease,
the Lease Supplement covering the Aircraft, the Purchase Agreement Assignment,
the Engine Warranty Assignment, and any other agreements, instruments or
documents, to which the Owner Trustee is a party in the respective forms thereof
in which delivered from time to time by the Owner Participant to the Owner
Trustee for execution and delivery and (ii) subject to the terms hereof, to
exercise its rights (upon instructions received from the Owner Participant) and
perform its duties under the documents referred to in this Section in accordance
with the terms thereof.
Section 2.02. Declaration of Trust. First Union accepts the trust
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created hereby and declares that it will hold the Trust Estate upon the trusts
hereinafter set forth for the use and benefit of the Owner Participant.
ARTICLE III
ACCEPTANCE AND DELIVERY OF AIRCRAFT;
LEASE OF AIRCRAFT; REPLACEMENT
Section 3.01. Authorization. (a) The Owner Participant hereby
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authorizes and directs the Owner Trustee to, and the Owner Trustee agrees for
the benefit of the Owner Participant that, on the Delivery Date it will, subject
to due compliance with the terms of Section 3.02 hereof:
(i) authorize a representative or representatives of the
Owner Trustee to accept delivery of the Aircraft and the Bills of Sale
pursuant to the Participation Agreement;
(ii) execute and deliver each of the Operative Agreements to
which the Owner Trustee is to be a party;
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(iii) purchase the Aircraft pursuant to the
Participation Agreement;
(iv) pay an amount equal to Lessor's Cost to, or at the
direction of, the Lessee pursuant to the Participation Agreement
in consideration of the sale of the Aircraft to the Owner Trustee
thereunder;
(v) make application to the FAA for registration of
the Aircraft in the name of the Owner Trustee by filing or
causing to be filed with the FAA (i) the FAA ▇▇▇▇ of Sale, (ii)
the FAA Aircraft Registration Application in the name of the
Owner Trustee (including, without limitation, an affidavit from
the Owner Trustee stating that it is a "citizen of the United
States" within the meaning of Section 40102(a)(15) of the
Transportation Code), and (iii) this Trust Agreement;
(vi) take such other action as may reasonably be
required of the Owner Trustee hereunder or under the
Participation Agreement or the Lease to effectuate the
transactions contemplated thereby; and
(vii) execute and deliver all such other instruments,
documents or certificates and take all such other actions in
accordance with the directions of the Owner Participant, as the
Owner Participant may reasonably deem necessary or advisable in
connection with the transactions contemplated hereby and by the
other Operative Agreements.
(b) The Owner Participant hereby authorizes and directs the
Owner Trustee to, and the Owner Trustee agrees for the benefit of the
Owner Participant that it will:
(i) immediately after the delivery of the Aircraft to
the Owner Trustee, cause the Aircraft to be leased to Lessee
under the Lease; and
(ii) execute and deliver a Lease Supplement covering
the Aircraft.
Section 3.02. Conditions Precedent. The right and obligation of
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the Owner Trustee to take the action required by Section 3.01 hereof shall be
subject to the following conditions precedent:
(a) the Owner Participant shall have made the full amount of the
Commitment with respect to the Aircraft available to the Owner
Trustee, in immediately available funds, in accordance with Section
2.01(c) of the Participation Agreement; and
(b) the terms and conditions of Section 3.01 of the
Participation Agreement shall have been waived by the Owner
Participant or complied with in a manner satisfactory to the Owner
Participant. The Owner Participant shall, by instructing Owner Trustee
to release the
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full amount of the Commitment then held by Owner Trustee as provided
in Section 2.01 of the Participation Agreement, be deemed to have
found satisfactory to it, or waived, all such conditions precedent.
Section 3.03. Postponement of Delivery Date. The Owner Trustee,
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upon instructions from the Owner Participant, shall take all action specified in
Section 2.01 of the Participation Agreement as action to be taken by the Owner
Trustee.
Section 3.04. Authorization in Respect of a Replacement
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Airframe or Replacement Engines. The Owner Trustee agrees for the benefit of the
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Owner Participant that, upon the receipt by a Responsible Officer of Owner
Trustee of an authorization and direction from the Owner Participant, it will,
in the event of a Replacement Airframe or Replacement Engines, if any, being
substituted pursuant to Section 8(a)(i) of the Lease, or a Replacement Engine
being substituted pursuant to Section 7(e) of the Lease, subject to due
compliance with the terms of Sections 8(d) and 7(e) of the Lease, as the case
may be:
(a) to the extent not previously accomplished by a prior
authorization, authorize a representative or representatives of the
Owner Trustee to accept delivery of the Replacement Airframe or
Replacement Engines, if any, or the Replacement Engine;
(b) accept from Lessee or other vendor of the Replacement
Airframe or Replacement Engines, if any, or the Replacement Engine, a
▇▇▇▇ of sale or bills of sale (if tendered) and the invoice, if any,
with respect to the Replacement Airframe and Replacement Engines, if
any, or the Replacement Engine being furnished pursuant to Section
8(a)(i) or 7(e) of the Lease;
(c) in the case of a Replacement Airframe, make application to
the FAA (or the Aeronautical Authority of any jurisdiction other than
the United States of America in which the Replacement Airframe is then
registered in accordance with the terms of the Lease) for registration
in the name of the Owner Trustee of the Aircraft of which such
Replacement Airframe is a part;
(d) execute and deliver a Lease Supplement covering (i) the
Aircraft of which such Replacement Airframe is part of, and (ii) such
Replacement Engine, as the case may be;
(e) transfer its interest in (without recourse except as to
obligations in respect of Lessor's Liens) and to the Airframe and
Engines (if any) or the Engine being replaced to or at the direction
of Lessee; and
(f) take such further action as may be contemplated by Sections
8(d) or 7(e) of the Lease, as the case may be.
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Section 3.05. Trust Agreement Remaining in Full Force and
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Effect. In the event of the substitution of a Replacement Airframe for the
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Airframe or the substitution of a Replacement Engine for any Engine or engine
all provisions of this Trust Agreement relating to such replaced Airframe or
Engine or engine shall be applicable to such Replacement Airframe or Replacement
Engine, with the same force and effect as if such Replacement Airframe or
Replacement Engine were the same airframe, engine or propeller as the Airframe
or Engine being replaced but for the Event of Loss with respect to such Airframe
or Engine.
Section 3.06. Authorization in Respect of Return of an
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Engine. The Owner Trustee agrees for the benefit of the Owner Participant that,
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upon the receipt by a Responsible Officer of the Owner Trustee of an
authorization and direction from the Owner Participant, it will, in the event of
an engine being transferred to the Owner Trustee pursuant to Section 12(b) of
the Lease, subject to due compliance with the terms of such Section 12(b):
(a) accept from Lessee or other vendor the ▇▇▇▇ of sale
contemplated by such Section 12(b) with respect to such engine being
transferred to the Owner Trustee; and
(b) transfer its right, title and interest in (without recourse
or warranty except a warranty against Lessor's Liens) and to an Engine
to or at the direction of Lessee as contemplated by such Section
12(b).
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE TRUST ESTATE
Section 4.01. Distribution of Payments. All Basic Rent,
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Supplemental Rent, insurance proceeds and requisition, indemnity or other
payments of any kind included in the Trust Estate and any other amounts received
as part of the Trust Estate and for the application or distribution of which no
provision is made herein, shall be distributed forthwith upon receipt by the
Owner Trustee in the following order of priority: first, so much of such payment
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as shall be required to pay or reimburse the Owner Trustee for any fees or
expenses not otherwise paid or reimbursed as to which the Owner Trustee is
entitled to be so paid or reimbursed pursuant to the provisions hereof and which
are actually due and owing shall be retained by the Owner Trustee; and second,
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the balance, if any, shall be paid to the Owner Participant.
Section 4.02. Method of Payments. The Owner Trustee shall
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make distributions or cause distributions to be made to the Owner Participant
pursuant to this Article IV by transferring by wire transfer in immediately
available funds the amount to be distributed to such account or accounts of the
Owner Participant as it may designate from time to time by written notice to the
Owner Trustee (and the Owner Trustee shall use reasonable efforts to cause such
funds to be transferred by wire transfer on the same day as received, but in any
case not later than the next
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succeeding Business Day); provided, however, that the Owner Trustee shall use
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its best efforts to invest overnight, for the benefit of the Owner Participant,
in investments that would be permitted by Section 15 of the Lease (but only to
the extent such investments are available and, if such investments are not
available, then in such other investments available to the Owner Trustee which,
after consultation with the Owner Participant, the Owner Participant shall
direct), all funds not transferred by the Owner Trustee by wire transfer on the
same day as they were received. Notwithstanding the foregoing, the Owner Trustee
will, if so requested by the Owner Participant by written notice, pay any and
all amounts payable by the Owner Trustee hereunder to the Owner Participant
either (i) by crediting such amount or amounts to an account or accounts
maintained by the Owner Participant as it may designate from time to time by
written notice to the Owner Trustee, in immediately available funds, or (ii) by
mailing an official bank check or checks in such amount or amounts payable to
the Owner Participant at such address as the Owner Participant shall have
designated in writing to the Owner Trustee.
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
Section 5.01. Notice of Event of Loss and Event of Default. If
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the Owner Trustee shall have knowledge of an Event of Loss or a Default or an
Event of Default, the Owner Trustee shall give to the Owner Participant and the
Lessee prompt telephonic or telecopied notice thereof followed by prompt
confirmation thereof by written notice in accordance with Section 12.01 of the
Participation Agreement. Subject to the terms of Section 5.03, the Owner Trustee
shall take such action or shall refrain from taking such action, not
inconsistent with the provisions of the Operative Agreements, with respect to
such Event of Loss, Default or Event of Default as the Owner Trustee shall be
directed in writing by the Owner Participant. For all purposes of this Trust
Agreement and the Lease, the Owner Trustee shall not be deemed to have knowledge
of an Event of Loss, a Default or an Event of Default unless notified in writing
thereof in the manner and at the address set forth in Section 10.05 or unless an
officer in the Corporate Trust Administration Department who has responsibility
for, or familiarity with, the transactions contemplated hereunder, under the
Participation Agreement or any Vice President in the Corporate Trust
Administration Department of the Owner Trustee has actual knowledge thereof.
Section 5.02. Action Upon Instructions. Subject in all respects
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to the terms of Sections 5.01 and 5.03 and to the terms of the other Operative
Agreements, upon the written instructions at any time and from time to time of
the Owner Participant, the Owner Trustee will take such of the following actions
as may be specified in such instructions: (i) give such notice or direction or
exercise such right, remedy or power hereunder or under any of the Operative
Agreements to which the Owner Trustee is a party, or in respect of all or any
part of the Trust Estate, as shall be specified in such instructions; (ii) take
such action to preserve or protect the Trust Estate (including the discharge of
any Liens or encumbrances) as may be specified in such instructions; (iii)
approve as satisfactory to it all matters required by the terms of the Lease to
be satisfactory to
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the Owner Trustee, it being understood that without written instructions of the
Owner Participant, the Owner Trustee shall not approve any such matter as
satisfactory to it; (iv) after the expiration or earlier termination of the
Lease, convey all of the Owner Trustee's right, title and interest in and to the
Aircraft for such amount, on such terms and to such purchaser or purchasers as
shall be designated in such instructions, or retain, lease or otherwise dispose
of, or from time to time take such action with respect to, the Aircraft on such
terms as shall be set forth in such instructions or deliver the Aircraft to the
Owner Participant in accordance with such instructions; and (v) take or refrain
from taking such other action or actions as may be specified in such
instructions. In the event that the Owner Trustee is unsure of the application
of any provision of this Trust Agreement or any other agreement relating to the
transactions contemplated hereby, the Owner Trustee may request and rely upon
instructions of the Owner Participant.
Section 5.03. Indemnification. The Owner Trustee shall not be
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required to take or refrain from taking any action under Section 5.01 (other
than the giving of notices referred to therein) or 5.02 unless the Owner Trustee
shall have been indemnified by the Lessee or the Owner Participant, as
appropriate, in manner and form satisfactory to the Owner Trustee, against any
liability, cost or expense (including reasonable counsel fees and disbursements)
which may be incurred in connection therewith. The Owner Trustee shall not be
required to take any action under Section 5.01 or 5.02 if the Owner Trustee
shall reasonably determine, or shall have been advised by counsel, that such
action is contrary to the terms of any of the Operative Agreements to which the
Owner Trustee is a party, or is otherwise contrary to Applicable Law.
Section 5.04. No Duties Except as Specified in Trust Agreement
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or Instructions. The Owner Trustee shall not have any duty or obligation to
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manage, control, use, sell, dispose of or otherwise deal with the Aircraft or
any other part of the Trust Estate, or otherwise to take or refrain from taking
any action under, or in connection with any of the Operative Agreements to which
the Owner Trustee is a party, except as expressly required by the terms of any
of the Operative Agreements to which the Owner Trustee is a party, or as
expressly provided by the terms hereof or in written instructions from the Owner
Participant received pursuant to the terms of Section 5.01 or 5.02, and no
implied duties or obligations shall be read into this Trust Agreement or any of
the Operative Agreements to which the Owner Trustee is a party against the Owner
Trustee. The Owner Trustee nevertheless agrees that it will, in its individual
capacity and at its own cost and expense (but without any right of indemnity in
respect of any such cost or expense under Section 7.01) promptly take such
action as may be necessary duly to discharge and satisfy in full (i) its
obligations under Section 5.03(b) of the Participation Agreement, (ii) any Liens
(other than Lessor's Liens attributable to it in its individual capacity)
created as a result of its breach of any of its obligations under this Trust
Agreement (subject to the limitations on the liability of the Owner Trustee in
its individual capacity set forth in Section 6.01) on any part of the Trust
Estate, or on any properties of the Owner Trustee assigned, pledged or mortgaged
as part of the Trust Estate, which arise from acts of the Owner Trustee in its
individual capacity, the rights of Lessee under the Lease and the rights of the
Owner Participant hereunder, and (iii) any other Liens or encumbrances
attributable to the Owner Trustee in its individual capacity on any part of the
Trust Estate which result from claims against the
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Owner Trustee in its individual capacity unrelated to the ownership of the
Aircraft, the administration of the Trust Estate or the transactions
contemplated by the Operative Agreements.
Section 5.05. No Action Except Under Specified Documents or
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Instructions. The Owner Trustee shall have no power or authority to, and the
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Owner Trustee agrees that it will not, manage, control, operate, lease, use,
sell, dispose of or otherwise deal with the Aircraft or any other part of the
Trust Estate except (i) as expressly required by the terms of any of the
Operative Agreements to which the Owner Trustee is a party, (ii) as expressly
provided by the terms hereof, or (iii) as expressly provided in written
instructions from the Owner Participant pursuant to Section 5.01 or 5.02.
ARTICLE VI
THE OWNER TRUSTEE
Section 6.01. Acceptance of Trusts and Duties. First Union
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accepts the trusts hereby created and agrees to perform the same but only upon
the terms hereof applicable to it. First Union also agrees to receive and
disburse all monies received by it constituting part of the Trust Estate upon
the terms hereof. First Union shall not be answerable or accountable under any
circumstances, except for (i) its own willful misconduct or gross negligence,
(ii) its performance of the terms of the last sentence of Section 5.04, (iii)
its failure to use ordinary care in receiving or disbursing funds or to comply
with the first sentence of Section 6.08, (iv) liabilities that may result from
the inaccuracy of any representation or warranty of the Owner Trustee in its
individual capacity (or from the failure by the Owner Trustee in its individual
capacity to perform any covenant made in its individual capacity) in Section
6.03 or in any of the Operative Agreements to which the Owner Trustee is a
party, (v) taxes, fees or other charges on, based on or measured by any fees,
commissions or other compensation received by First Union as compensation for
its services rendered as the Owner Trustee, and (vi) its failure (in its
individual capacity or as Owner Trustee) to use ordinary care in connection with
its obligations to invest funds pursuant to Section 15 of the Lease or Section
4.02 hereof; provided, however, that the failure to act or perform in the
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absence of instructions after the Owner Trustee has requested instructions from
the Owner Participant pursuant to the last sentence of Section 5.02 shall not
constitute willful misconduct or gross negligence for purposes of clause (i) of
this Section 6.01.
Section 6.02. Absence of Certain Duties. Except in accordance
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with written instructions furnished pursuant to Sections 5.01 and 5.02 and
except as provided in, and without limiting the generality of, Sections 3.01,
3.04, 5.04 and 5.05 and the last sentence of Section 8.01(b), the Owner Trustee
shall have no duty (i) to see to any registration of the Aircraft or any
recording or filing of the Lease, this Trust Agreement, any financing or
continuation statement or of any supplement to any thereof or to see to the
maintenance of any such registration, rerecording or refiling, except that of
Owner Trustee to comply with the FAA reporting requirements set forth in 14
C.F.R. (S)47.45 and 14 C.F.R. (S)47.51 or any successor provisions, and that the
Owner Trustee shall
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upon written request furnished by Lessee or Owner Participant take such action
as may be required of the Owner Trustee to maintain the registration of the
Aircraft in the name of the Owner Trustee under the Act or, to the extent the
Aircraft is registered in a country other than the United States of America
pursuant to Section 4.02 of the Participation Agreement, other Applicable Law,
and to the extent that information for that purpose is supplied by Lessee
pursuant to any of the Operative Agreements, complete and timely submit any and
all reports relating to the Aircraft which 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, (iii)
to see to the payment or discharge of any tax, assessment or other governmental
charge or any Lien or encumbrance of any kind owing with respect to, assessed or
levied against any part of the Trust Estate except as provided by Section 5.04
hereof or Section 5.03(b) of the Participation Agreement, (iv) to confirm or
verify any financial statements of Lessee or (v) to inspect the Aircraft or the
books and records of Lessee with respect to the Aircraft. Notwithstanding the
foregoing, the Owner Trustee will furnish to 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.
Section 6.03. No Representations or Warranties as to Certain
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Matters. NEITHER THE OWNER PARTICIPANT NOR THE OWNER TRUSTEE IN ITS INDIVIDUAL
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CAPACITY OR AS THE OWNER TRUSTEE MAKES, NOR SHALL IT BE DEEMED TO HAVE MADE (a)
ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, VALUE,
CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE FOR A
PARTICULAR PURPOSE OF THE AIRCRAFT, ANY ENGINE THEREOF, ABSENCE OF LATENT OR
OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE) OR ANY OTHER REPRESENTATION OR
WARRANTY WITH RESPECT TO THE AIRCRAFT OR ANY ENGINE OR ANY OTHER PART THEREOF
WHATSOEVER, except that the Owner Trustee in its individual capacity warrants to
the Owner Participant that on the Delivery Date the Owner Trustee shall have
received and shall hold whatever title to the Aircraft that was conveyed to it
by Seller free and clear of Lessor's Liens attributable to the Owner Trustee in
its individual capacity, shall be in compliance with the last sentence of
Section 5.04 hereof and that the Aircraft shall during the Lease Term be free of
Lessor's Liens attributable to it in its individual capacity, or (b) any
representation or warranty as to the validity, legality or enforceability of
this Trust Agreement or any other Operative Agreement to which the Owner Trustee
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 as a representation by the Owner Trustee in its individual capacity and
except that the Owner Trustee in its individual capacity 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 the due authorization, execution and delivery of the Trust Agreement
by the Owner Participant) the other Operative Agreements to which the Owner
Trustee is a party have been
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(or at the time of execution and delivery of any such instrument by the Owner
Trustee hereunder or pursuant to the terms of the Participation Agreement that
such an instrument will be) duly executed and delivered by one of its officers
who is or will be, as the case may be, duly authorized to execute and deliver
such instruments on behalf of the Owner Trustee and that this Trust Agreement
has been duly authorized, executed and delivered by First Union and constitutes
the legal, valid and binding obligation of First Union enforceable against it in
accordance with its terms, except as such terms may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
rights of creditors generally and by general principles of equity, regardless of
whether considered in a proceeding in equity or at law.
Section 6.04. No Segregation of Monies Required; Investment
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Thereof. Monies received by the Owner Trustee hereunder need not be segregated
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in any manner except to the extent required by Applicable Law, and may be
deposited under such general conditions as may be prescribed by Applicable Law,
and shall be invested as provided in Section 4.02 hereof or Section 15 of the
Lease.
Section 6.05. Reliance Upon Certificates, Counsel and Agents.
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Trustee shall incur no liability to anyone in acting in reliance upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper reasonably believed by it to be
genuine and reasonably believed by it to be signed by the proper party or
parties. Unless other evidence in respect thereof is specifically prescribed
herein, any request, direction, order or demand of the Owner Participant or
Lessee mentioned herein or in any of the other Operative Agreements to which the
Owner Trustee is a party shall be sufficiently evidenced by written instruments
signed by a person purporting to be a Responsible Officer of the Owner
Participant or Lessee, as the case may be. The Owner Trustee may accept a copy
of a resolution of the Board of Directors of Lessee or the Owner Participant, as
the case may be, certified by the Secretary or an Assistant Secretary of Lessee
or the Owner Participant, as the case may be, as duly adopted and in full force
and effect, as conclusive evidence that such resolution has been duly adopted by
said Board and that the same is in full force and effect. As to any fact or
matter the manner of ascertainment of which is not specifically described
herein, the Owner Trustee may, absent actual knowledge to the contrary, for all
purposes hereof rely on a certificate signed by a Responsible Officer of Lessee
or the Owner Participant, as the case may be, as to such fact or matter, and
such certificate shall constitute full protection to the Owner Trustee for any
action taken or omitted to be taken by it in good faith in reliance thereon.
In the administration of the trusts hereunder, the Owner Trustee
may exercise its powers and perform its duties hereunder directly or through
agents or attorneys and the Owner Trustee shall not be liable for the default or
misconduct of any agents or attorneys selected by it with prudence and
reasonable care. In the administration of the trusts hereunder, the Owner
Trustee may consult with counsel, accountants and other skilled persons and the
Owner Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the advice or opinion of any such counsel,
accountants or other skilled persons selected by it with reasonable care;
provided, the Owner Trustee agrees that it shall endeavor to give the Owner
Participant notice that
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it is or will be consulting with counsel, accountant and other skilled persons
(as permitted above) and shall endeavor to provide that the Owner Participant
may rely on such advice or opinion, as appropriate to such context.
Section 6.06. Not Acting in Individual Capacity. In acting
---------------------------------
hereunder, the Owner Trustee acts solely as trustee and not in its individual
capacity except as otherwise expressly provided herein; and, except as may be
otherwise expressly provided in this Trust Agreement, including without
limitation, Section 6.01, the Lease or the Participation Agreement, all Persons
having any claim against the Owner Trustee by reason of the transactions
contemplated hereby shall look only to the Trust Estate for payment or
satisfaction thereof.
Section 6.07. Fees; Compensation. Except as provided in Section
------------------
5.03 or 7.01, the Owner Trustee agrees that it shall have no right against the
Owner Participant or the Trust Estate for any fee as compensation for its
services hereunder.
Section 6.08. Tax Returns. The Owner Trustee shall be
-----------
responsible for the keeping of all appropriate books and records relating to the
receipt and disbursement by it of all monies under this Trust Agreement, the
other Operative Agreements or any agreement contemplated hereby. The Owner
Trustee shall be responsible for causing to be prepared and timely filed, at
Lessee's expense, the federal fiduciary tax return required to be filed with
respect to the trust created hereby and such other tax returns requested by the
Owner Participant and shall execute and file such returns as directed by the
Owner Participant.
Section 6.09. Fixed Investment Trust. Notwithstanding anything
----------------------
herein to the contrary, the Owner Trustee shall not be authorized and shall have
no power to "vary the investment" of the Owner Participant within the meaning of
section 301.7701-4(c) of the Treasury Regulations.
ARTICLE VII
INDEMNIFICATION OF THE OWNER TRUSTEE
BY THE OWNER PARTICIPANT
Section 7.01. The Owner Participant to Indemnify the Owner
--------------------------------------------
Trustee. The Owner Participant hereby agrees, whether or not any of the
-------
transactions contemplated hereby shall be consummated, to assume liability for,
and does hereby indemnify, protect, save, defend and hold harmless the Owner
Trustee in its individual capacity, and its successors, assigns (but not
security assigns), directors, officers, representatives, agents, employees and
servants, from and against any and all liabilities, obligations, losses,
damages, penalties, taxes (excluding any taxes payable by the Owner Trustee on
or measured by any compensation received by the Owner Trustee for its services
hereunder), claims, actions, suits, costs, expenses or disbursements (including,
without limitation, reasonable legal fees, but excluding internal costs and
expenses such as salaries and overhead) and
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expenses of any kind and nature whatsoever which may be imposed on, incurred by
or asserted against the Owner Trustee in its individual capacity (whether or not
also indemnified against by Lessee under the Lease or under the Participation
Agreement or also indemnified against by any other Person; 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 Airframe, any Engine or any Part of the foregoing (including,
without limitation, latent and other defects, whether or not discoverable, and
any claim for patent, trademark or copyright infringement), or in any way
relating to or arising out of the administration of the Trust Estate or the
action or inaction of the Owner Trustee hereunder, except (a) in the case of
willful misconduct or gross negligence on the part of the Owner Trustee either
as trustee or in its individual capacity in the performance or nonperformance of
its duties hereunder or under any of the other Operative Agreements to which it
is a party or (b) those resulting from the inaccuracy of any representation or
warranty of the Owner Trustee in its individual capacity (or from the failure of
the Owner Trustee in its individual capacity to perform any covenant) in Section
6.03, or in any of the Operative Agreements, or (c) those arising or resulting
from any of the matters described in the last sentence of Section 6.01, or (d)
those resulting from its failure to perform the terms of the last sentence of
Section 5.04 hereof or from its failure to use ordinary care in the receipt and
disbursement of funds or in connection with its obligation to invest funds
pursuant to Section 15 of the Lease or Section 4.02 hereof or in compliance with
the first Section of Section 6.08, 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 5.01, 6.08 or 8.02 hereof, or (f)
those arising under any circumstances or upon any terms where Lessee would not
have been required to indemnify Owner Trustee, in its individual capacity,
pursuant to Section 6.01 or 7.01 of the Participation Agreement; provided, that
--------
before asserting its right to indemnification, if any, pursuant to this Section
7.01, Owner Trustee shall first demand its corresponding right to
indemnification from Lessee pursuant to Section 6.01 or 7.01 of the
Participation Agreement or any other Operative Agreement and second, shall seek
reimbursement from the Trust Estate (but, in either case, need not exhaust any
or all remedies available thereunder). The indemnities contained in this Section
7.01 extend to the Owner Trustee only in its individual capacity and shall not
be construed as indemnities of the Trust Estate. The indemnities contained in
this Section 7.01 shall survive the termination of this Trust Agreement and the
resignation or removal of the Owner Trustee.
ARTICLE VIII
SUCCESSOR OWNER TRUSTEES; CO-TRUSTEES
Section 8.01. Resignation of the Owner Trustee; Appointment of
------------------------------------------------
Successor. Resignation or Removal. The Owner Trustee or any successor Owner
---------
Trustee (i) shall resign if required to do so pursuant to Section 5.02(b) of the
Participation Agreement and (ii) may resign
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at any time without cause by giving at least 60 days prior written notice to the
Owner Participant and Lessee, such resignation to be effective upon the
acceptance of appointment by the successor Owner Trustee under Section 8.01(b).
In addition, the Owner Participant may at any time remove the Owner Trustee, or
revoke the trusts created by this Trust Agreement, in either case with or
without cause by a notice in writing delivered to the Owner Trustee and Lessee.
Any such removal shall be effective upon the acceptance of appointment by the
successor Owner Trustee under Section 8.01(b). In the case of the resignation or
removal of the Owner Trustee, the Owner Participant may appoint a successor
Owner Trustee by an instrument in writing. If a successor Owner Trustee shall
not have been appointed within 30 days after such notice of resignation or
removal, the Owner Trustee may apply to any court of competent jurisdiction to
appoint a successor Owner Trustee to act until such time, if any, as a successor
shall have been appointed as above provided. Any successor Owner Trustee so
appointed by such court shall immediately and without further act be superseded
by any successor Owner Trustee appointed as above provided within one year from
the date of the appointment by such court. All reasonable fees and expenses of a
successor Owner Trustee appointed in accordance with this Section 8.01 and the
provisions of paragraph (b) of Section 9.01 of the Participation Agreement shall
be at Lessee's sole cost and expense.
(b) Execution and Delivery of Documents, etc. Any successor Owner
----------------------------------------
Trustee, however appointed, shall execute and deliver to the predecessor Owner
Trustee, with a copy to Owner Participant and Lessee, an instrument accepting
such appointment and assuming the obligations of Owner Trustee, in its
individual capacity and as Owner Trustee, under the Operative Agreements to
which Owner Trustee is a party, and thereupon such successor Owner Trustee,
without further act, shall become vested with all the estates, properties,
rights, powers, duties and trusts of the predecessor Owner Trustee in the trust
hereunder with like effect as if originally named the Owner Trustee herein; but
nevertheless, upon the written request of such successor Owner Trustee, such
predecessor Owner Trustee shall execute and deliver an instrument transferring
to such successor Owner Trustee upon the trusts herein expressed, all the
estates, properties, rights, powers and trusts of such predecessor Owner
Trustee, and such predecessor Owner Trustee shall duly assign, transfer, deliver
and pay over to such successor Owner Trustee all monies or other property then
held by such predecessor Owner Trustee upon the trusts herein expressed. Upon
the appointment of any successor Owner Trustee hereunder, the predecessor Owner
Trustee will complete, execute and deliver to the successor Owner Trustee such
documents as are necessary to cause registration of the Aircraft included in the
Trust Estate to be transferred upon the records of the FAA or other governmental
authority having jurisdiction, into the name of the successor Owner Trustee.
(c) Qualification. Any successor Owner Trustee, however appointed,
-------------
shall be a Citizen of the United States, shall be qualified to act as a trustee
in Delaware (if the trust created hereby is to remain in such state) and shall
also be a bank or trust company organized under the laws of the United States of
America or any state thereof having a combined capital and surplus of at least
$100,000,000, if there be such an institution willing, able and legally
qualified to perform the duties of the Owner Trustee hereunder upon reasonable
and customary terms.
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(d) Merger, etc. Any corporation into which the Owner Trustee may be
-----------
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Owner
Trustee shall be a party, or any corporation to which substantially all the
corporate trust business of the Owner Trustee may be transferred, shall, subject
to the terms of Section 8.01(c), be the Owner Trustee hereunder without further
act.
Section 8.02. Co-Trustees and Separate Trustees. If at any time or
---------------------------------
times it shall be necessary or prudent in order to conform to any Applicable Law
of any jurisdiction in which all or any part of the Trust Estate is located, or
the Owner Trustee shall be advised by counsel that it is so necessary or prudent
in the interest of the Owner Participant or the Owner Trustee, or the Owner
Trustee shall have been directed to do so by the Owner Participant, the Owner
Trustee and the Owner Participant shall execute and deliver an agreement
supplemental hereto and all other instruments and agreements necessary or proper
to constitute another bank or trust company or one or more Persons (any and all
of which shall be a Citizen of the United States) approved by the Owner Trustee
and the Owner Participant, either to act as co-trustee or co-trustees, jointly
with the Owner Trustee, or to act as separate trustee or trustees hereunder (any
such co-trustee or separate trustee being herein sometimes referred to as an
"additional trustee"). In the event the 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 the Owner Trustee so to do, the Owner
Trustee may act under the foregoing provisions of this Section 8.02 without the
concurrence of the Owner Participant; and the Owner Participant hereby appoints
the Owner Trustee its agent and attorney-in-fact to act for it under the
foregoing provisions of this Section 8.02 in either of such contingencies. All
reasonable fees and expenses of a co-trustee or separate trustee appointed in
accordance with this Section 8.02 shall be at Lessee's sole cost and expense.
Every additional trustee hereunder shall, to the extent permitted by
Applicable Law, be appointed and act, and the Owner Trustee and its successors
shall act, subject to the following provisions and conditions:
(a) all powers, duties, obligations and rights conferred upon the
Owner Trustee in respect of the custody, control and management of monies,
the Aircraft or documents authorized to be delivered hereunder or under the
Participation Agreement shall be exercised solely by the corporation
designated as the Owner Trustee in the first paragraph of this Trust
Agreement, or its successors as the Owner Trustee hereunder;
(b) all other rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee and any limitations thereon shall be
conferred or imposed upon and exercised or performed by the corporation
designated as the Owner Trustee in the first paragraph of this Trust
Agreement or its successors as the Owner Trustee, and such additional
trustee or trustees jointly, except to the extent that under any Applicable
Law of any jurisdiction in which any particular act or acts are to be
performed (including the holding of title to the Trust Estate), the Owner
Trustee shall be incompetent or unqualified to perform such act or
14
acts, in which event such rights, powers, duties and obligations shall be
exercised and performed by such additional trustee or trustees;
(c) no power given to, or which it is provided hereby may be
exercised by, any such additional trustee or trustees shall be exercised
hereunder by such additional trustee or trustees, except jointly with, or
with the consent in writing of, the corporation designed as the Owner
Trustee in this Trust Agreement or its successor as the Owner Trustee,
anything herein contained to the contrary notwithstanding;
(d) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(e) the Owner Participant, at any time, by an instrument in writing
may remove any such additional trustee. In the event that the Owner
Participant shall not have joined in the execution of any such instrument
within ten days after the receipt of a written request from the Owner
Trustee so to do, the Owner Trustee shall have the power to remove any such
additional trustee without the concurrence of the Owner Participant; and
the Owner Participant hereby appoints the Owner Trustee its agent and
attorney-in-fact to act for it in such connection in such contingency.
In case any separate trustee under this Section 8.02 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
Applicable Law, vest in and be exercised by Owner Trustee, without the
appointment of a successor to such separate trustee.
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS TO TRUST AGREEMENT
AND OTHER DOCUMENTS
Section 9.01. Supplements and Amendments. At any time and from time
--------------------------
to time, upon the written request of the Owner Participant, (i) the Owner
Trustee, together with the Owner Participant, shall execute a supplement to this
Trust Agreement for the purpose of adding provisions to, or changing or
eliminating provisions of, this Trust Agreement (except Section 10.11) as
specified in such request, and (ii) the Owner Trustee shall enter into such
written amendment of or supplement to any other Operative Agreement to which the
Owner Trustee is a party as Lessee may agree to and as may be specified in such
request, or execute and deliver such written waiver or modification of or
consent under the terms of any such Operative Agreement as Lessee may agree to
and as may be specified in such request.
Section 9.02. Discretion as to Execution of Documents. If in the
---------------------------------------
reasonable opinion of the Owner Trustee any document required to be executed
pursuant to the terms of Section 9.01
15
adversely affects any right, duty, immunity or indemnity in favor of the Owner
Trustee hereunder or under any other Operative Agreement to which the Owner
Trustee is a party, the Owner Trustee may in its discretion decline to execute
such document unless Owner Trustee is furnished with indemnification from Lessee
or any other party upon terms and in amounts reasonably satisfactory to Owner
Trustee to protect the Trust Estate and Owner Trustee against any and all
liabilities, costs and expenses arising out of the execution of such documents.
Section 9.03. Absence of Requirements as to Form. It shall not be
----------------------------------
necessary for any written request furnished pursuant to Section 9.01 to specify
the particular form of the proposed documents to be executed pursuant to such
Section, but it shall be sufficient if such request shall indicate the substance
thereof.
Section 9.04. Distribution of Documents. Promptly after the execution
-------------------------
by the Owner Trustee of any document entered into pursuant to Section 9.01, the
Owner Trustee shall hand deliver, send by nationally recognized overnight
courier or mail, by certified mail, postage prepaid, a conformed copy thereof to
the Owner Participant, but the failure of the Owner Trustee to mail such
conformed copy shall not impair or affect the validity of such document.
ARTICLE X
MISCELLANEOUS
Section 10.01. Termination of Trust Agreement. This Trust Agreement
------------------------------
and the trusts created hereby shall terminate and this Trust Agreement shall be
of no further force or effect upon the earliest of (a) the later of (x) the sale
or other final disposition by the Owner Trustee of all property constituting
part of the Trust Estate and the final distribution by the Owner Trustee of all
monies or other property or proceeds constituting part of the Trust Estate in
accordance with Article IV hereof, provided that at such time Lessee shall have
--------
fully complied with all of the terms of the Participation Agreement and the
Lease, and (y) the expiration or termination of the Lease in accordance with its
terms or (b) 110 years after the earlier execution of this Trust Agreement by
either party hereto, but if this Trust Agreement and the trusts created hereby
shall be or become authorized under applicable law for a period subsequent
thereto (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 and the effective grant of such rights, privileges and
options 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 such rights, privileges or options shall not terminate as aforesaid
but shall extend to and continue in effect, but only if such non-termination and
extension shall then be valid under Applicable Law, until such time as the same
shall under Applicable Law cease to be valid, whereupon all monies or other
property or proceeds constituting part of the Trust Estate shall be distributed
in accordance with the terms of Article IV hereof, otherwise this Trust
Agreement and the trusts created hereby shall continue in full force and effect
in accordance with the terms hereof.
16
Notwithstanding the foregoing, this Trust Agreement and trust created
hereby shall terminate and the Trust Estate shall be distributed to the Owner
Participant, and this Trust 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 Lease shall no longer be in effect.
Section 10.02. The Owner Participant Has No Legal Title in Trust
-------------------------------------------------
Estate. The Owner Participant does not have legal title to any part of the
------
Trust Estate. No transfer, by operation of law or otherwise, of any right, title
and interest of the Owner Participant in and to the Trust Estate hereunder shall
operate to terminate this Trust Agreement or the trusts hereunder or entitle any
successors or transferees of the Owner Participant to an accounting or to the
transfer of legal title to any part of the Trust Estate.
Section 10.03. Assignment, Sale, etc., of Aircraft. Any assignment,
-----------------------------------
sale, transfer or other conveyance of the Aircraft, any Engine, any Part or any
interest therein by the Owner Trustee made pursuant to the terms hereof or of
the Lease or the Participation Agreement shall bind the Owner Participant and
shall be effective to transfer or convey all right, title and interest of the
Owner Trustee and the Owner Participant in and to the Aircraft, such Engine,
such Part or interest therein. No purchaser or other grantee shall be required
to inquire as to the authorization, necessity, expediency or regularity of such
assignment, sale, transfer or conveyance or as to the application of any sale or
other proceeds with respect thereto by the Owner Trustee.
Section 10.04. Trust Agreement for Benefit of Certain Parties Only.
---------------------------------------------------
Nothing herein, whether express or implied, shall be construed to give any
Person other than the Owner Trustee, First Union, the Lessee and the Owner
Participant any legal or equitable right, remedy or claim under or in respect of
this Trust Agreement; but this Trust Agreement shall be held to be for the sole
and exclusive benefit of the Owner Trustee, First Union, the Lessee and the
Owner Participant.
Section 10.05. Notices. Unless otherwise expressly specified or
-------
permitted by the terms hereof, all notices shall be given in the manner set
forth in Section 12.01 of the Participation Agreement.
Section 10.06. Severability. Any provision hereof which is prohibited
------------
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
17
Section 10.07. Waivers, etc. No term or provision hereof may be
------------
changed, waived, discharged or terminated orally, but only by an instrument in
writing entered into in compliance with the terms of Article IX hereof; and any
waiver of the terms hereof shall be effective only in the specified instance and
for the specific purpose given.
Section 10.08. Counterparts. This Trust Agreement may be executed by
------------
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 10.09. Binding Effect, etc. All covenants and agreements
--------------
contained herein shall be binding upon, and inure to the benefit of, the Owner
Trustee and its successors and permitted assigns, and the Owner Participant, its
successors and permitted assigns. Any request, notice, direction, consent,
waiver or other instrument or action by the Owner Participant or Owner Trustee
shall bind their respective successors and permitted assigns.
Section 10.10. Headings; References. The headings of the various
--------------------
Articles and Sections herein are for convenience of reference only and shall not
define or limit any of the terms or provisions hereof.
Section 10.11. GOVERNING LAW. (a) THIS TRUST AGREEMENT SHALL IN ALL
-------------
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF DELAWARE, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO
HEREBY IRREVOCABLY AGREES, ACCEPTS AND SUBMITS ITSELF TO THE NON-EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN THE CITY AND COUNTY OF
NEW YORK AND OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN
CONNECTION WITH ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO ANY MATTER
RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH THIS TRUST AGREEMENT.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO
HEREBY IRREVOCABLY CONSENTS AND AGREES THAT THE SERVICE OF ANY AND ALL LEGAL
PROCESS, SUMMONS NOTICES AND DOCUMENTS OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE MADE BY MAILING COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, AT THE ADDRESS REFERRED TO IN
SECTION 10.05. EACH PARTY HERETO HEREBY AGREES THAT SERVICE UPON IT IN
ACCORDANCE WITH THIS SECTION 10.11(c) SHALL CONSTITUTE VALID AND EFFECTIVE
PERSONAL SERVICE UPON SUCH PARTY.
18
(d) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A
DEFENSE, OR OTHERWISE, IN ANY LEGAL ACTION OR PROCEEDING BROUGHT HEREUNDER IN
ANY OF THE ABOVE-NAMED COURTS, THAT SUCH ACTION OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM, THAT VENUE FOR THE ACTION OR PROCEEDING IS IMPROPER OR THAT
THIS TRUST AGREEMENT OR ANY OTHER OPERATIVE AGREEMENT MAY NOT BE ENFORCED IN OR
BY SUCH COURTS.
(e) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO
HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION IN ANY COURT IN ANY JURISDICTION BASED UPON OR ARISING OUT OF OR RELATING
TO THIS TRUST AGREEMENT.
Section 10.12. Administration of Trust. The principal place of
-----------------------
administration of the trust created by this Trust Agreement shall be in the
State of Delaware.
* * *
19
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.
ICX CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
And Treasurer
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
20
