EXHIBIT 4.17
Trust Agreement
N____U__
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TRUST AGREEMENT
(US Airways, Inc. Trust No. N___U_)
Dated as of [-]
between
---------------------------------------------,
Owner Participant
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Owner Trustee
One Airbus A[-] Aircraft
FAA Registration ▇▇▇▇ N___U_
Manufacturer's Serial Number ____
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND TERMS..............................................1
SECTION 1.01 Certain Definitions.........................................1
ARTICLE II AUTHORITY TO EXECUTE CERTAIN OPERATIVE DOCUMENTS;
DECLARATION OF TRUST...............................................1
SECTION 2.01 Authority to Execute Documents..............................1
SECTION 2.02 Declaration of Trust........................................2
ARTICLE III ACCEPTANCE AND DELIVERY OF AIRCRAFT..............................2
SECTION 3.01 Acceptance of Aircraft......................................2
SECTION 3.02 Conditions Precedent........................................3
SECTION 3.03 Authorization in Respect of a Termination of the Lease
and Assumption of the Equipment Notes.......................3
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 a Return of an Engine...........5
ARTICLE IV RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE TRUST ESTATE................................6
SECTION 4.01 Distribution of Payments....................................6
(a) Payments to Indenture Trustee...............................6
(b) Payments to Owner Trustee; Other Parties....................6
(c) Certain Distributions to Owner Participant..................7
(d) Excluded Payments...........................................7
SECTION 4.02 Method of Payments..........................................7
ARTICLE V DUTIES OF THE OWNER TRUSTEE........................................8
SECTION 5.01 Notice of Event of Default..................................8
SECTION 5.02 Action Upon Instructions....................................9
SECTION 5.03 Indemnification............................................10
SECTION 5.04 No Duties Except as Specified in Trust Agreement
or Instructions............................................10
SECTION 5.05 Satisfaction of Conditions Precedent.......................11
SECTION 5.06 No Action Except Under Specified Documents
or Instructions............................................11
ARTICLE VI THE OWNER TRUSTEE..............................................11
SECTION 6.01 Acceptance of Trusts and Duties............................11
SECTION 6.02 Absence of Certain Duties..................................12
SECTION 6.03 No Representations or Warranties as to Certain
Matters....................................................13
SECTION 6.04 No Segregation of Monies Required; No Interest.............13
SECTION 6.05 Reliance Upon Certificates, Counsel and Agents.............14
SECTION 6.06 Not Acting in Individual Capacity..........................15
SECTION 6.07 Fees; Compensation.........................................15
SECTION 6.08 Tax Returns................................................15
ARTICLE VII INDEMNIFICATION OF OWNER TRUSTEE
BY OWNER PARTICIPANT..............................................15
SECTION 7.01 Owner Participant to Indemnify Owner Trustee...............15
ARTICLE VIII TRANSFER OF THE OWNER PARTICIPANT'S
INTEREST..........................................................17
SECTION 8.01 Transfer of Interests......................................17
ARTICLE IX SUCCESSOR OWNER TRUSTEES; CO-TRUSTEES..........................18
SECTION 9.01 Resignation of Owner Trustee; Appointment of
Successor..................................................18
(a) Resignation or Removal.....................................18
(b) Execution and Delivery of Documents, etc...................18
(c) Qualification..............................................19
(d) Merger, etc................................................19
SECTION 9.02 Co-Trustees and Separate Trustees..........................19
ARTICLE X SUPPLEMENTS AND AMENDMENTS TO TRUST
AGREEMENT AND OTHER DOCUMENTS.....................................21
SECTION 10.01 Supplements and Amendments.................................21
(a) Supplements and Amendments.................................21
(b) Delivery of Amendments and Supplements to Certain
Parties....................................................21
SECTION 10.02 Discretion as to Execution of Documents....................21
SECTION 10.03 Absence of Requirements as to Form.........................22
SECTION 10.04 Distribution of Documents..................................22
SECTION 10.05 No Request Needed as to Lease Supplement and
Trust Supplement...........................................22
ARTICLE XI MISCELLANEOUS..................................................22
SECTION 11.01 Termination of Trust Agreement.............................22
SECTION 11.02 Owner Participant Has No Legal Title in Trust Estate.......23
SECTION 11.03 Assignment, Sale, etc. of Aircraft.........................23
SECTION 11.04 Trust Agreement for Benefit of Certain Parties Only........23
SECTION 11.05 Notices; Consent to Jurisdiction...........................23
SECTION 11.06 Severability...............................................24
SECTION 11.07 Waivers, etc...............................................25
SECTION 11.08 Counterparts...............................................25
SECTION 11.09 Binding Effect, etc........................................25
SECTION 11.10 Headings; References.......................................25
SECTION 11.11 GOVERNING LAW..............................................25
TRUST AGREEMENT
(US Airways, Inc. Trust No. N___U_)
This TRUST AGREEMENT (US Airways, Inc. Trust No. N___U_)
dated as of [-] between __________________________________________, a
corporation organized and existing pursuant to the laws of the State of
__________ (the "Owner Participant"), and FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association (in its individual capacity,
"FSB") 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") (as hereafter from time to time
supplemented or amended, this or the "Trust Agreement");
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein, FSB and the Owner Participant hereby agree as
follows:
W I T N E S S E T H:
ARTICLE I
DEFINITIONS AND TERMS
SECTION 1.01 CERTAIN 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.
ARTICLE II
AUTHORITY TO EXECUTE CERTAIN OPERATIVE DOCUMENTS;
DECLARATION OF TRUST
SECTION 2.01 AUTHORITY TO EXECUTE DOCUMENTS. The Owner
Participant hereby authorizes and directs the Owner Trustee to execute and
deliver the Operative Documents 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, subject to the terms
hereof, to perform its duties and, upon instructions from the Owner
Participant, exercise its rights under said Operative Documents in
accordance with the terms thereof.
SECTION 2.02 DECLARATION OF TRUST. The Owner Trustee hereby
declares that it shall continue to hold the Trust Estate upon the trusts
hereinafter set forth for the use and benefit of the 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.
ARTICLE III
ACCEPTANCE AND DELIVERY OF AIRCRAFT
SECTION 3.01 ACCEPTANCE OF AIRCRAFT. 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, on the
Delivery Date, subject to due compliance with the terms of Section 3.02
hereof:
(a) purchase the Aircraft pursuant to the Participation
Agreement and the ▇▇▇▇ of Sale;
(b) accept from Lessee the delivery of the ▇▇▇▇ of Sale and
the FAA ▇▇▇▇ of Sale;
(c) cause the Aircraft to be leased to Lessee under the
Lease, and in furtherance thereof execute and deliver a Lease
Supplement covering the Aircraft;
(d) execute and deliver the Trust Supplement covering the
Aircraft;
(e) execute, issue and deliver the Equipment Notes;
(f) execute and deliver the financing statements referred to
in Section 4(a)(v) of the Participation Agreement, together with
all other agreements, documents and instruments referred to in
Section 4 of the Participation Agreement to which the Owner
Trustee is a party;
(g) effect the 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) an application for registration of
the Aircraft in the name of the Owner Trustee (including without
limitation an affidavit from the Owner Trustee in compliance with
the provisions of 14 C.F.R. ss. 47.7(c)(2)(ii)(1979)); and (iii)
the Trust Agreement; and
(h) execute and deliver all other documents and certificates
required by the Operative Documents from time to time in
accordance with the directions of the Owner Participant.
SECTION 3.02 CONDITIONS PRECEDENT. The right and obligation
of the Owner Trustee to take the action required by Section 3.01 hereof
with respect to the Aircraft shall be subject to the following conditions
precedent:
(a) the Owner Participant shall have made the full amount of
its Commitment set forth in Schedule II of the Participation
Agreement available to the Owner Trustee, in immediately available
funds, in accordance with Section 2 of the Participation Agreement;
and
(b) the terms and conditions of Section 4 of the
Participation Agreement shall have been complied with in a manner
satisfactory to the Owner Participant and the Owner Trustee.
SECTION 3.03 AUTHORIZATION IN RESPECT OF A TERMINATION OF
THE LEASE AND ASSUMPTION OF THE EQUIPMENT NOTES. 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, take the
actions specified to be taken by the Owner Trustee in Section 7(r) of the
Participation Agreement upon Lessee's purchasing the Aircraft pursuant to
Section 19(b) or 20 of the Lease and upon Lessee's assuming the
indebtedness evidenced by the Equipment Notes and satisfying all of its
obligations in accordance with the provisions of Section 7(r) of the
Participation Agreement.
SECTION 3.04 AUTHORIZATION IN RESPECT OF A REPLACEMENT
AIRFRAME OR REPLACEMENT ENGINES. 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, in the event of a
Replacement Airframe and Replacement Engines, if any, being substituted
pursuant to Section 10(a) of the Lease, or a Replacement Engine being
substituted pursuant to Section 10(b) of the Lease, subject to due
compliance with the terms of Section 10(a) or 10(b) 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 (who shall be an employee or employees of Lessee) to
accept delivery of the Replacement Airframe and Replacement
Engines, if any, or the Replacement Engines;
(b) accept from Lessee or other vendor of the Replacement
Airframe and 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 10(a) or (b) of the Lease;
(c) in the case of a Replacement Airframe, make application
to the Federal Aviation Administration for the 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 and a Trust
Supplement covering (i) the Aircraft of which such Replacement
Airframe is part or (ii) such Replacement Engine, as the case may
be;
(e) transfer its interest in (without recourse except as to
obligations in respect of Lessor Liens) and to the Airframe and
Engines (if any) or the Engine being replaced to Lessee;
(f) request in writing that the Indenture Trustee execute
and deliver to Lessee appropriate instruments to release the
Airframe and Engines or engines (if any) or the Engine or engine
being replaced from the lien created under the Trust Indenture and
release the Purchase Agreement and the Purchase Agreement
Assignment (solely with respect to such replaced Airframe and
Engines, if any, or Engine) from the assignment and pledge under
the Trust Indenture; and
(g) upon instructions from the Owner Participant, take such
further action as may be contemplated by clauses (A) and (B) of the
third paragraph of Section 10(a) of the Lease or clauses (ii) and
(iii) of Section 10(b) of the Lease, as the case may be.
SECTION 3.05 TRUST AGREEMENT REMAINING IN FULL FORCE AND
EFFECT. In the event of the substitution of a Replacement Airframe for the
Airframe or the substitution of a Replacement Engine for any Engine or
engine, all provisions of this Trust 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 or engine 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 A RETURN OF AN
ENGINE. 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, in the event of an Acceptable Alternate Engine
being transferred to the Owner Trustee pursuant to Section 5 of the Lease,
subject to due compliance with the terms of such Section 5:
(a) accept from Lessee the ▇▇▇▇ of sale with respect to such
Acceptable Alternate Engine contemplated by such Section 5 (if
tendered);
(b) transfer its interest in (without recourse,
representation or warranty except as to obligations in respect of
Lessor Liens) and to the Engine that such Acceptable Alternate
Engine is replacing to Lessee as contemplated by such Section 5;
and
(c) request in writing that the Indenture Trustee execute
and deliver to Lessee appropriate instruments to release the Engine
being transferred to Lessee pursuant to such Section 5 from the
lien of the Trust Indenture and to release the General Terms
Agreement and the Engine Agreement Assignment (solely with respect
to such Engine) from the assignment and pledge under the Trust
Indenture.
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE TRUST ESTATE
SECTION 4.01 DISTRIBUTION OF PAYMENTS. (a) Payments to
Indenture Trustee. Until the Trust Indenture shall have been discharged
pursuant to Section 10.01 thereof, all Basic Rent, Supplemental Rent,
insurance proceeds and requisition or other payments of any kind included
in the Trust Estate (other than Excluded Payments) payable to the Owner
Trustee shall be payable directly to the Indenture Trustee (and if any of
the same are received by the Owner Trustee shall upon receipt be paid over
to the Indenture Trustee without deduction, set-off or adjustment of any
kind) for distribution in accordance with the provisions of Article III of
the Trust Indenture.
(b) 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 4.01(a) hereof
(other than Excluded Payments) received by the Owner Trustee, any payments
received from the Indenture Trustee other than as specified in Section
4.01(d) hereof and any other amount 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 as shall be
required to reimburse the Owner Trustee for any expenses not otherwise
reimbursed as to which the Owner Trustee is entitled to be so reimbursed
pursuant to the provisions hereof shall be retained by the Owner Trustee;
second, so much of the remainder for which provision as to the application
thereof is contained in the Lease or any of the other Operative Documents
shall be applied and distributed in accordance with the terms of the Lease
or such other Operative Document; and third, the balance, if any, shall be
paid to the Owner Participant.
(c) Certain Distributions to Owner Participant. All amounts
from time to time distributable by the Indenture Trustee to the Owner
Participant pursuant to the Trust Indenture shall, if paid to the Owner
Trustee, be distributed by the Owner Trustee to the Owner Participant in
accordance with the provisions of Article III of the Trust Indenture.
(d) Excluded Payments. Any Excluded Payments received by the
Owner Trustee shall be paid by the 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.
SECTION 4.02 METHOD OF PAYMENTS. The Owner Trustee shall
make distributions or cause distributions to be made to the Owner
Participant pursuant to this Article IV by transferring by wire transfer
the amount to be distributed to such account or accounts of the Owner
Participant as the Owner Participant may designate from time to time in
writing to the Owner Trustee. The Owner Trustee agrees to attempt to cause
any such funds received thereby to be transferred by wire transfer of
immediately available funds on the same day as received (but in any event
not later than the next succeeding Business Day). To the extent that same
day re-transmission is not possible, the Owner Trustee will use
commercially reasonable efforts to invest such funds overnight, for the
Owner Participant's benefit, in any investment vehicle or interest bearing
account previously approved or designated in writing by the Owner
Participant. Notwithstanding the foregoing, the Owner Trustee will, if so
requested by the Owner Participant in writing, pay any or all amounts
payable to the Owner Participant pursuant to this Article IV either (i) by
crediting such amount or amounts to an account or accounts maintained by
the Owner Participant with the Owner Trustee in its individual capacity in
immediately available funds, (ii) by payment at the trust office of the
Owner Trustee (the trust office of the Owner Trustee shall be the principal
corporate trust office of the Owner Trustee at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department, or the
principal corporate trust office of any successor Owner Trustee), in
immediately available funds, or (iii) 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. Subject to Section 4.01, the Owner Trustee shall, when and
as instructed in writing by the Owner Participant, direct the Indenture
Trustee to pay all such amounts otherwise payable to the Owner Trustee by
the Indenture Trustee pursuant to the Trust Indenture directly to the Owner
Participant.
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
SECTION 5.01 NOTICE OF EVENT OF DEFAULT. If the Owner
Trustee shall have knowledge of a Lease Event of Default or an Indenture
Event of Default (or a Lease Default or an event which with the passage of
time or the giving of notice or both would constitute an Indenture Event of
Default) the Owner Trustee shall give to the Owner Participant prompt
telephonic or telecopy notice thereof which shall set forth in reasonable
detail the facts and circumstances known to it 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 referred to in paragraph (c) of Section 4.02 of
the Trust Indenture, such notice shall in no event be furnished later
within five (5) days after the Owner Trustee shall first have knowledge of
such event and (ii) in the case of a misrepresentation by the Owner Trustee
which with the passage of time would constitute an Indenture Event of
Default referred to in paragraph (d) of Section 4.02 of the Trust
Indenture, such notice shall in no event be furnished later than five (5)
days after the Owner Trustee shall first have knowledge of such event.
Subject to the terms of Section 5.03 hereof, the 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 Event of
Default, Indenture Event of Default or other event as the Owner Trustee
shall be directed in writing by the Owner Participant. If the Owner Trustee
shall not have received instructions as above provided within twenty (20)
days after the mailing of such notice to the Owner Participant, the Owner
Trustee until instructed otherwise in accordance with the preceding
sentence may, but shall be under no duty to, take or refrain from taking
such action with respect to such Lease Event of Default, Indenture Event of
Default or other event, not inconsistent with the provisions of the Trust
Indenture, as it shall deem advisable in the best interests of the Owner
Participant. For all purposes of this Trust Agreement, the Lease and the
other Operative Documents, in the absence of actual knowledge by an officer
of FSB in the Corporate Trust Department, the Owner Trustee shall not be
deemed to have knowledge of a Lease Event of Default, an Indenture Event of
Default or other event referred to in this Section 5.01 unless notified in
writing by the Indenture Trustee, the Owner Participant or Lessee.
SECTION 5.02 ACTION UPON INSTRUCTIONS. Subject to the terms
of Sections 5.01 and 5.03 hereof, 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, not inconsistent with the provisions of the
Trust Indenture, 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 Documents 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 (including entering into agreements referred to in
clause (i) of Section 8.01 hereof and in clause (U) of Section 7(j) of the
Participation Agreement); (ii) take such action to preserve or protect the
Trust Estate (including the discharge of Liens) as may be specified in such
instructions; (iii) approve as satisfactory to it all matters required by
the terms of the Lease or the other Operative Documents to be satisfactory
to the Owner Trustee, it being understood that without written instructions
of the Owner Participant, the Owner Trustee shall not approve any such
matter as satisfactory to it (it being understood that the provisions of
Sections 3.03, 3.04 and 3.06 hereof do not constitute instructions by the
Owner Participant for the Owner Trustee to approve of or consent to the
matters to be approved of or consented to by the Owner Trustee in the
sections of the Lease referred to in Sections 3.03, 3.04 or 3.06 hereof);
and (iv) subject to the rights of Lessee under the Operative Documents,
after the expiration or earlier termination of the Lease, deliver the
Aircraft to the Owner Participant in accordance with such instructions,
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 net lease the Aircraft on
such terms and to such lessee or lessees as shall be designated in such
instructions.
SECTION 5.03 INDEMNIFICATION. The Owner Trustee shall not be
required to take any action under Section 5.01 (other than the giving of
the notices referred to therein) or 5.02 hereof unless the Owner Trustee
shall have been indemnified by the Owner Participant, 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; and, if the Owner Participant shall have directed
the Owner Trustee to take any such action or refrain from taking any
action, the Owner Participant agrees to furnish such indemnity as shall be
required and, in addition, to the extent not otherwise paid pursuant to the
provisions of the Lease or the Participation Agreement, to pay the
reasonable compensation of the 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 the Owner Trustee in
connection therewith. The Owner Trustee shall not be required to take any
action under Section 5.01 or 5.02 hereof if the Owner Trustee shall
reasonably determine, or shall have been advised by counsel, that such
action is contrary to the terms of any of the Operative Documents to which
the Owner Trustee is a party, or is otherwise contrary to law.
SECTION 5.04 NO DUTIES EXCEPT AS SPECIFIED IN TRUST
AGREEMENT OR INSTRUCTIONS. The Owner Trustee shall not have any duty or
obligation to manage, control, use, sell, dispose of or otherwise deal with
the Aircraft or any other part of the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with any of the
Operative Documents to which the Owner Trustee is a party, except as
expressly required by the terms of any of the Operative Documents to which
the Owner Trustee is a party, or (to the extent not inconsistent with the
provisions of the Trust Indenture) 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 against the Owner
Trustee. FSB 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 under Section 7.01 hereof) promptly take such action as may
be necessary to duly discharge and satisfy in full (i) all Lessor Liens
which it is required to discharge pursuant to Section 7(f) of the
Participation Agreement and otherwise comply with the terms of said Section
binding on it, (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 on any part of the Trust Estate, or
on properties of the Owner Trustee assigned, pledged or mortgaged as part
of the Trust Estate, which arise from acts of FSB in its individual
capacity except the Lien created under the Trust Indenture, the rights of
the Lessee under the Lease and the rights of the Owner Participant
hereunder and (iii) any other Liens from claims against FSB in its
individual capacity on any part of the Trust Estate which result from
claims against FSB in its individual capacity unrelated to the ownership of
the Aircraft, the administration of the Trust Estate or the transactions
contemplated by the Operative Documents.
SECTION 5.05 SATISFACTION OF CONDITIONS PRECEDENT. Anything
herein to the contrary notwithstanding, the Owner Trustee shall comply with
the provisions of Section 3.01 hereof upon the satisfaction, to the
satisfaction of special counsel for the Owner Trustee, of all the
applicable conditions precedent specified in Section 3.02 hereof and in
Section 4 of the Participation Agreement.
SECTION 5.06 NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Owner Trustee shall not have any power, right or
authority to, and the Owner Trustee 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 (i) as expressly required by the
terms of any of the Operative Documents 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 hereof.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.01 ACCEPTANCE OF TRUSTS AND DUTIES. FSB accepts
the trusts hereby created and agrees to perform the same but only upon the
terms hereof applicable to it. The Owner Trustee also agrees to receive and
disburse all monies received by it constituting part of the Trust Estate
upon the terms hereof. FSB shall not be answerable or accountable under any
circumstances, except (a) for its own willful misconduct or gross
negligence, (b) for its failure to perform its obligations under the last
sentence of Section 5.04 hereof and the first sentence of Section 5.01
hereof, (c) for its or the Owner Trustee's failure to use ordinary care to
receive or disburse funds, (d) for any Tax based on or measured by any
fees, commissions or compensation received by it for acting as trustee in
connection with any of the transactions contemplated by the Operative
Documents and (e) for liabilities that may result from the inaccuracy of
any representation or warranty of it (or from the failure by it to perform
any covenant) in Section 6.03 hereof, in Section 6.03 of the Trust
Indenture, in Section 4 of the Lease or in Sections 7(a), 7(b), 7(f), 7(g),
7(k), 7(p) or 7(r) of the Participation Agreement.
SECTION 6.02 ABSENCE OF CERTAIN DUTIES. Except in accordance
with written instructions furnished pursuant to Section 5.02 hereof and
except as provided in, and without limiting the generality of, Sections
3.01, 5.03 and 5.04 hereof and the last sentence of Section 9.01(b) hereof,
neither the Owner Trustee nor FSB shall have any duty (i) to see to any
recording or filing of any Operative Document or of any supplement to any
thereof or to see to the maintenance of any such recording or filing or any
other filing of reports with the Federal Aviation Administration or other
governmental agencies, except that FSB, in its individual capacity, shall
comply with the reporting requirements set forth in 14 C.F.R. ss. 47.45 and
14 C.F.R. ss. 47.51 or any successor provisions and the Owner Trustee
shall, to the extent that information for that purpose is supplied by
Lessee pursuant to any of the Operative Documents, complete and timely
submit (and furnish the Owner Participant with a copy of) any and all
reports relating to the Aircraft which may from time to time be required by
the Federal Aviation Administration or any government or governmental
authority having jurisdiction, or (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 the
Owner Participant copies of all reports and other written information which
the Owner Trustee receives from Lessee pursuant to Section 11 of the Lease,
(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 Indenture
Estate or the Trust Estate, except as provided in Section 7 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.
Notwithstanding the foregoing, the Owner Trustee will furnish to the
Indenture Trustee and the Owner Participant, promptly upon receipt thereof,
duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and other instruments furnished to the
Owner Trustee under the Lease or any other Operative Document.
SECTION 6.03 NO REPRESENTATIONS OR WARRANTIES AS TO CERTAIN
MATTERS. NEITHER THE OWNER TRUSTEE NOR FSB MAKES OR SHALL 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 OF THE AIRCRAFT OR ANY PART THEREOF, OR ANY OTHER REPRESENTATION OR
WARRANTY WITH RESPECT TO THE AIRCRAFT WHATSOEVER, except that FSB in its
individual capacity warrants that on the Delivery Date the Owner Trustee
shall have received whatever title was conveyed to it by Lessee and that
the Aircraft shall during the Term be free of Lessor Liens attributable to
it, or (b) any representation or warranty as to the validity, legality or
enforceability of this Trust Agreement or any Operative Document to which
the 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 FSB in its individual capacity or by the Owner Trustee
and except that FSB in its individual capacity hereby represents and
warrants that this Trust Agreement has been, and (assuming due
authorization, execution and delivery by the Owner Participant of this
Trust Agreement) the Operative Documents to which it or the Owner Trustee
is a party have been (or at the time of execution and delivery of any such
instrument by it or the Owner Trustee hereunder or pursuant to the terms of
the Participation Agreement that such an instrument will be) duly executed
and delivered by one of its officers who is or will be, as the case may be,
duly authorized to execute and deliver such instruments on behalf of itself
or the Owner Trustee, as the case may be, and that the Trust Agreement
constitutes the legal, valid and binding obligation of FSB or the Owner
Trustee, as the case may be, enforceable against FSB or the Owner Trustee,
as the case may be, in accordance with its terms.
SECTION 6.04 NO SEGREGATION OF MONIES REQUIRED; NO INTEREST.
Except as provided in the Lease or the Trust Indenture, monies received by
the Owner Trustee hereunder need not be segregated in any manner except to
the extent required by law, and may be deposited under such general
conditions as may be prescribed by law, and shall be invested as provided
in Section 4.02 hereof, and except as provided in such Section 4.02, the
Owner Trustee shall not be liable for any interest thereon.
SECTION 6.05 RELIANCE UPON CERTIFICATES, COUNSEL AND AGENTS.
The Owner 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
Operative Documents to which the Owner Trustee is a party shall be
sufficiently evidenced by written instruments signed by a person purporting
to be the chairman of the board, the president, any executive vice
president, any senior vice president or any vice president or a managing
director and in the name of the Owner Participant or Lessee, as the case
may be. The Owner Trustee may accept a copy of a resolution of the Board of
Directors or Executive Committee of Lessee, certified by the secretary or
any assistant secretary of Lessee as duly adopted and in full force and
effect, as conclusive evidence that such resolution has been duly adopted
by said Board or Committee and that the same is in full force and effect.
As to any fact or matter the manner of ascertainment of which is not
specifically described herein, the Owner Trustee may for all purposes
hereof rely on a certificate signed by a person purporting to be the
chairman of the board, the president, any executive vice president, any
senior vice president or any vice president or a managing director of
Lessee, as to such fact or matter, and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be
taken by it in good faith in reliance thereon. In the administration of
trusts hereunder, the Owner Trustee may execute any of the trusts or powers
hereof and perform its powers and duties hereunder directly or through
agents or attorneys and may, at the expense of the Trust Estate, consult
with counsel, accountants and other skilled persons to be selected and
employed by it. The Owner Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the advice or
opinion of any such counsel, accountants or other skilled persons and the
Owner Trustee shall not be liable for the negligence of any such agent,
attorney, counsel, accountant or other skilled person appointed by it with
due care hereunder.
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,
subject to the terms of the Participation Agreement and the Trust
Indenture, all persons, other than the Owner Participant, as provided
herein, 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 hereof, the Owner Trustee agrees that it shall have no
right against the Owner Participant or (subject to the provisions of the
Trust Indenture) 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 of all monies under this Trust Agreement or
any agreement contemplated hereby. The Owner Participant shall be
responsible for causing to be prepared and filed all income tax returns
required to be filed by the Owner Participant. The Owner Trustee shall be
responsible for causing to be prepared, at the request and expense of the
Owner Participant, all income tax returns required to be filed with respect
to the trust created hereby and shall execute and file such returns. The
Owner Participant or the Owner Trustee, as the case may be, upon request,
will furnish the Owner Trustee or the Owner Participant, as the case may
be, with all such information as may be reasonably required from the Owner
Participant or the Owner Trustee, as the case may be, in connection with
the preparation of such income tax returns.
ARTICLE VII
INDEMNIFICATION OF OWNER TRUSTEE
BY OWNER PARTICIPANT
SECTION 7.01 OWNER PARTICIPANT TO INDEMNIFY OWNER TRUSTEE.
The Owner Participant hereby agrees, whether or not any of the transactions
contemplated hereby shall be consummated, to assume liability for, and
hereby indemnify, protect, save and keep harmless FSB in its individual
capacity and its successors, assigns, legal representatives, agents and
servants, from and against any and all liabilities, obligations, losses,
damages, penalties, taxes (excluding any taxes payable by FSB in its
individual capacity on or measured by any compensation received by FSB in
its individual capacity for its services hereunder or in connection with
the transactions contemplated by the Operative Documents), claims, actions,
suits, costs, expenses or disbursements (including, without limitation,
reasonable ongoing fees of the Owner Trustee, reasonable legal fees and
expenses, 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 FSB 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 but only to the extent not otherwise paid or
reimbursed by Lessee or such other Person) in any way relating to or
arising out of this Trust Agreement or any of the Operative Documents or
the enforcement of any of the terms of any thereof, or in any way relating
to or arising out of the manufacture, purchase, acceptance, 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 the Owner Trustee or FSB in its individual
capacity hereunder, except (a) in the case of willful misconduct or gross
negligence on the part of the Owner Trustee or FSB in its individual
capacity in the performance or nonperformance of its duties hereunder or
(b) those resulting from the inaccuracy of any representation or warranty
of FSB in its individual capacity (or from the failure of FSB in its
individual capacity to perform any covenant) in Section 6.03 hereof, in
Section 6.03 of the Trust Indenture or, with respect to representations or
warranties of FSB in its individual capacity only, in Section 4 of the
Lease, in Sections 7(a), 7(b), 7(f), 7(g), 7(k), 7(p) or 7(r) of the
Participation Agreement or in any of the other Operative Documents or (c)
as may result from a breach by FSB in its individual capacity of its
covenants in the last sentence of Section 5.04 hereof or (d) in the case of
the failure to use ordinary care on the part of the Owner Trustee or FSB in
its individual capacity in the disbursement of funds. Without limiting the
foregoing, FSB agrees that, prior to seeking indemnification from the Owner
Participant, it will demand, and take such action as it may in its
discretion determine to be reasonable to pursue, indemnification available
to FSB from Lessee under the Participation Agreement. The indemnities
contained in this Section 7.01 extend to FSB 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 FSB in its
individual capacity has been reimbursed by the Trust Indenture Estate or
the Trust Estate for amounts covered by the indemnities contained in this
Section 7.01). The indemnities contained in this Section 7.01 shall survive
the termination of this Trust Agreement. In addition, if necessary, FSB in
its individual capacity 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 7.01 to the
extent not reimbursed by Lessee, the Owner Participant or others, but
without releasing any of them from their respective agreements of
reimbursement; and to secure the same FSB in its individual capacity shall
have a Lien on the Trust Estate, subject to the Lien of the Trust
Indenture, which shall be prior to any interest therein of the Owner
Participant. The payor of any indemnity under this Article VII shall be
subrogated to any right of the Person indemnified in respect of the matter
as to which such indemnity was paid. FSB in its individual capacity shall
not make any claim for indemnification or other payment from the Owner
Participant pursuant to this Section 7.01 or otherwise with respect to
which Lessee has an obligation to indemnify or make payment to FSB in its
individual capacity under Section 6(b) or 6(c) of the Participation
Agreement, unless and until FSB in its individual capacity shall have first
made demand upon Lessee (but only if and to the extent permitted by
applicable law) for such indemnification.
ARTICLE VIII
TRANSFER OF THE OWNER PARTICIPANT'S INTEREST
SECTION 8.01 TRANSFER OF INTERESTS. All provisions of
Section 7(j) of the Participation Agreement shall (with the same force and
effect as if set forth in full, mutatis, in this Section 8.01) be
applicable to any assignment, conveyance or other transfer by any Owner
Participant of its right, title or interest in and to the Participation
Agreement, the Trust Estate or this Trust Agreement.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES; CO-TRUSTEES
SECTION 9.01 RESIGNATION OF OWNER TRUSTEE; APPOINTMENT OF
SUCCESSOR. (a) Resignation or Removal. The Owner Trustee or any successor
Owner Trustee (i) shall resign if required to do so pursuant to Section
7(a) of the Participation Agreement and (ii) may resign at any time without
cause by giving at least sixty (60) days' prior written notice to the Owner
Participant, the Indenture Trustee (so long as the Lien of the Trust
Indenture has not been fully discharged) and Lessee (so long as the Lease
is in effect), such resignation to be effective upon the acceptance of
appointment by the successor Owner Trustee under Section 9.01(b) hereof. In
addition, the Owner Participant may at any time remove the Owner Trustee
without cause by a notice in writing delivered to the Owner Trustee, the
Indenture Trustee (so long as the Lien of the Trust Indenture has not been
fully discharged) and Lessee (so long as the Lease is in effect), such
removal to be effective upon the acceptance of appointment by the successor
Owner Trustee under Section 9.01(b) hereof. In the case of the resignation
or removal of the Owner Trustee, the Owner Participant may appoint a
successor Owner Trustee by an instrument signed by the Owner Participant.
If a successor Owner Trustee shall not have been appointed within thirty
(30) days after such notice of resignation or removal, the Owner Trustee,
the Owner Participant, Lessee or the Indenture 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.
(b) Execution and Delivery of Documents, etc. Any successor
Owner Trustee, however appointed, shall execute and deliver to the
predecessor Owner Trustee and the Owner Participant an instrument accepting
such appointment, and thereupon such successor Owner Trustee, without
further act, shall become vested with all the estates, properties, rights,
powers, duties and trusts of the predecessor Owner Trustee in the trusts
hereunder with like effect as if originally named the Owner Trustee herein;
but nevertheless, upon the written request of such successor Owner Trustee,
such predecessor Owner Trustee shall execute and deliver an instrument
transferring to such successor Owner Trustee, upon the trusts herein
expressed, all the estates, properties, rights, powers 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 execute such
documents as are provided to it by such successor Owner Trustee and will
take such further actions as are requested of it by such successor Owner
Trustee as are reasonably required to cause registration of the Aircraft
included in the Trust Estate to be transferred upon the records of the
Federal Aviation Administration, 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 without making use of a
voting trust, voting powers agreement or similar arrangement and shall also
be a bank or trust company organized under the laws of the United States or
any state thereof having a combined capital and surplus of at least
$100,000,000, if there be such an institution willing, able and legally
qualified to perform the duties of the Owner Trustee hereunder upon
reasonable or customary terms.
(d) Merger, etc. Any corporation 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 9.01(c) hereof, be the
Owner Trustee hereunder without further act.
SECTION 9.02 CO-TRUSTEES AND SEPARATE TRUSTEES. 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
make any claim or bring any suit with respect to the Trust Estate or the
Lease, or the Owner Trustee being advised by counsel shall determine that
it is so necessary or prudent in the interest of the Owner Participant or
the Owner Trustee, or the Owner Trustee shall have been directed to do so
by the Owner Participant, the Owner Trustee and 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 without making use of a voting trust, voting
powers agreement or similar arrangement) approved by the Owner Trustee and
the Owner Participant, either to act as co-trustee, jointly with the Owner
Trustee, or to act as separate trustee hereunder (any such co-trustee or
separate trustee being herein sometimes referred to as an "additional
trustee").
Every additional trustee hereunder shall, to the extent
permitted by law, be appointed and act, and the Owner Trustee and its
successors shall act, subject to the following provisions and conditions:
(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 Owner Trustee;
(B) all other rights, powers, duties and obligations
conferred or imposed upon the Owner Trustee shall be conferred or
imposed upon and exercised or performed by the Owner Trustee and
such additional trustee jointly, except to the extent that under
any law of any jurisdiction in which any particular act or acts are
to be performed (including the holding of title to the Trust
Estate) the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers,
duties and obligations shall be exercised and performed by such
additional trustee;
(C) no power given to, or which it is provided hereby may be
exercised by, any such additional trustee shall be exercised
hereunder by such additional trustee, except jointly with, or with
the consent in writing of, the Owner Trustee;
(D) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder;
(E) the Owner Participant, at any time, by an instrument in
writing may remove any such additional trustee; and
(F) no appointment of, or action by, any additional trustee
will relieve the Owner Trustee of any of its obligations under, or
otherwise affect any of the terms of, the Operative Documents,
including, without limitation, the Trust Indenture or affect the
interests of the Indenture Trustee or the holders of the Equipment
Notes in the Trust Indenture Estate.
ARTICLE X
SUPPLEMENTS AND AMENDMENTS
TO TRUST AGREEMENT AND OTHER DOCUMENTS
SECTION 10.01 SUPPLEMENTS AND AMENDMENTS. (a) Supplements
and Amendments. Subject to Section 10.05 hereof, this Trust Agreement may
not be amended, supplemented or otherwise modified except by an instrument
in writing signed by the Owner Trustee and the Owner Participant. Subject
to Section 10.02 hereof and the first sentence of Section 9 of the
Participation Agreement, the Owner Trustee will execute any amendment,
supplement or other modification of this Trust Agreement or of any other
Operative Document to which the Owner Trustee is a party which it is
requested to execute by the Owner Participant, except that the 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.
(b) Delivery of Amendments and Supplements to Certain
Parties. A signed copy of each amendment or supplement referred to in
Section 10.01(a) hereof shall be delivered by the Owner Trustee to Lessee,
the Indenture Trustee and each holder of a Equipment Note.
SECTION 10.02 DISCRETION AS TO EXECUTION OF DOCUMENTS. Prior
to executing any document required to be executed by it pursuant to the
terms of Section 10.01 hereof, the Owner Trustee shall be entitled to
receive an opinion of its counsel to the effect that the execution of such
document is authorized hereunder. If in the opinion of the Owner Trustee
any such document adversely affects any right, duty, immunity or indemnity
in favor of the Owner Trustee hereunder or under any other Operative
Document to which the Owner Trustee is a party, the Owner Trustee may in
its discretion decline to execute such document.
SECTION 10.03 ABSENCE OF REQUIREMENTS AS TO FORM. It shall
not be necessary for any written request furnished pursuant to Section
10.01 hereof 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 10.04 DISTRIBUTION OF DOCUMENTS. Promptly after the
execution by the Owner Trustee of any document entered into pursuant to
Section 10.01 hereof, the Owner Trustee shall 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.
SECTION 10.05 NO REQUEST NEEDED AS TO LEASE SUPPLEMENT AND
TRUST SUPPLEMENT. No written request pursuant to Section 10.01 hereof shall
be required to enable the Owner Trustee to enter into the Lease Supplement
covering the Aircraft with Lessee pursuant to the terms of the Lease and
Section 3.01 hereof and the Trust Supplement pursuant to the terms of the
Trust Indenture and Section 3.01 hereof.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 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) each of the final discharge of the Trust
Indenture pursuant to Section 10.01 thereof, the termination of the Lease
pursuant to its terms and 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 Lease and the Participation Agreement or (b)
twenty-one years less one day after the death of the last survivor of all
of the descendants of the grandparents of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ living on the
date of the earliest execution of this Trust Agreement by any party hereto;
otherwise this Trust Agreement and the trusts created hereby shall continue
in full force and effect in accordance with the terms hereof. So long as
the Lien of the Trust Indenture on the Trust Indenture Estate shall not
have been released and all principal, interest and any other amounts due on
the Equipment Notes shall not have been paid in full, this Trust Agreement
may not be revoked or terminated without the consent of the Indenture
Trustee.
SECTION 11.02 OWNER PARTICIPANT HAS NO LEGAL TITLE IN TRUST
ESTATE. The Owner Participant shall not have legal title to any part of the
Trust Estate. No transfer, by operation of law or otherwise, of any right,
title and interest of the Owner Participant in and to the Trust Estate
hereunder shall operate to terminate this 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 11.03 ASSIGNMENT, SALE, ETC. OF AIRCRAFT. Any
assignment, sale, transfer or other conveyance of its interest in the
Aircraft 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. No
purchaser or other grantee shall be required to inquire as to the
authorization, necessity, expediency or regularity of such assignment,
sale, transfer or conveyance or as to the application of any sale or other
proceeds with respect thereto by the Owner Trustee.
SECTION 11.04 TRUST AGREEMENT FOR BENEFIT OF CERTAIN PARTIES
ONLY. Except for the terms of Section 7(j) of the Participation Agreement
incorporated in Article VIII hereof and except as otherwise provided in
Articles IX and X hereof, nothing herein, whether expressed or implied,
shall be construed to give any Person other than the Owner Trustee and the
Owner Participant any legal or equitable right, remedy or claim under or in
respect of this Trust Agreement; but this Trust Agreement shall be held to
be for the sole and exclusive benefit of the Owner Trustee and the Owner
Participant.
SECTION 11.05 NOTICES; CONSENT TO JURISDICTION. (a) All
notices, demands, instructions and other communications required or
permitted to be given to or made upon any party hereto shall be in writing
and shall be personally delivered or sent by registered or certified mail,
postage prepaid, or by telecopier, or by prepaid courier service, and shall
be deemed to be given for purposes of this Trust Agreement on the day that
such writing is delivered to the intended recipient thereof in accordance
with the provisions of this Section 11.05(a). Unless otherwise specified in
a notice sent or delivered in accordance with the foregoing provisions of
this Section 11.05(a), notices, demands, instructions and other
communications in writing shall be given to or made upon the respective
parties hereto at their respective addresses (or to their respective
telecopier numbers) as follows: (A) if to Lessee, the Owner Trustee, the
Loan Participants, the Indenture Trustee or the Owner Participant, to the
respective addresses set forth below the signatures of such parties on the
signature page of the Participation Agreement, or (B) if to a Subsequent
Owner Participant, addressed to such Subsequent Owner Participant at such
address as such Subsequent Owner Participant shall have furnished by notice
to the parties hereto or (C) if to any subsequent Certificate Holder,
addressed to such Certificate Holder at its address set forth in the
Equipment Note register maintained pursuant to Section 2.07 of the Trust
Indenture.
(b) Each of the parties hereto (A) hereby irrevocably
submits itself to the non-exclusive jurisdiction of the United States
District Court for the Southern District of New York and to the
non-exclusive jurisdiction of the Supreme Court of the State of New York,
New York County, for the purposes of any suit, action or other proceeding
arising out of this Trust Agreement, the Participation Agreement, the
Lease, the Tax Indemnity Agreement or any other Operative Document, the
subject matter of any thereof or any of the transactions contemplated
hereby or thereby brought by any party or parties thereto, or their
successors or assigns, and (B) hereby waives, and agrees not to assert, by
way of motion, as a defense, or otherwise, in any such suit, action or
proceeding, to the extent permitted by applicable law, that the suit,
action or proceeding is brought in an inconvenient forum, that the venue of
the suit, action or proceeding is improper, or that the Participation
Agreement, the Lease, the Tax Indemnity Agreement or any other Operative
Document or the subject matter of any thereof or any of the transactions
contemplated hereby or thereby may not be enforced in or by such courts.
SECTION 11.06 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.
SECTION 11.07 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
X hereof; and any waiver of the terms hereof shall be effective only in the
specific instance and for the specific purpose given.
SECTION 11.08 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 11.09 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 assigns, and the Owner
Participant, its successors and, to the extent permitted by Article VIII
hereof, its assigns. Any request, notice, direction, consent, waiver or
other instrument or action by the Owner Participant shall bind its
successors and assigns. Any Owner Participant which shall cease to have any
ownership interest shall thereupon cease to be a party hereto or an Owner
Participant for any reason and shall have no further obligations hereunder.
SECTION 11.10 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 11.11 GOVERNING LAW. THIS TRUST AGREEMENT SHALL IN
ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF UTAH, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
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.
------------------------------------------------
By:
--------------------------------------
Name:
Title:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION
By:
---------------------------------------
Name:
Title:
AFFIDAVIT OF CITIZENSHIP
----------------------------------------------
STATE OF _______________ }
} SS.
COUNTY OF ______________ }
I, _______________, being duly sworn, depose and say, that:
1. I am the duly qualified and acting [Assistant] Secretary of
__________________ (the "Corporation");
2. The Corporation is duly organized under the laws of the State of
___________;
3. The [Chief Executive Officer/President] and two-thirds or more of
the Board of Directors and other managing officers of the
Corporation are individuals who are citizens of the United States
of America;
4. At least seventy-five percent (75%) of the voting interest of the
Corporation is owned or controlled by persons or corporations who
are citizens of the United States of America;
5. Accordingly, the Corporation is a "Citizen of the United States" as
defined in Section 40102(a)(15) of Title 49 of the United States
Code.
SWORN to this ____ day of __________, ____.
_______________________________________
By:
_______________________________
Name:
Title:
SWORN AND SUBSCRIBED TO
before me this ____ day of
__________, ____
_________________________________
Notary Public
My Commission Expires on _________________
