CONFORMED COPY
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EXHIBIT 10.2
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TRUST AGREEMENT [N583ML]
Dated as of August 10, 1999
between
POLARIS HOLDING COMPANY,
as Owner Participant
and
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
as Owner Trustee
______________________
One Canadair Regional Jet Series 200 ER Aircraft
N583ML
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Page
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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; ISSUANCE OFEQUIPMENT NOTE; LEASE OF AIRCRAFT; REPLACEMENT........ 2
Section 3.01. Authorization.................................................................................. 2
Section 3.02. Conditions Precedent........................................................................... 4
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 APPLICATIONOF INCOME FROM THE TRUST ESTATE.................................. 6
Section 4.01. Distribution of Payments....................................................................... 6
Section 4.02. Method of Payments............................................................................. 7
ARTICLE V DUTIES OF THE OWNER TRUSTEE........................................................................... 7
Section 5.01. Notice of Event of Default..................................................................... 7
Section 5.02. Action Upon Instructions....................................................................... 8
Section 5.03. Indemnification................................................................................ 8
Section 5.04. No Duties Except as Specified in Trust Agreement or Instructions............................... 8
Section 5.05. No Action Except Under Specified Documents or Instructions..................................... 9
ARTICLE VI THE OWNER TRUSTEE..................................................................................... 9
Section 6.01. Acceptance of Trusts and Duties................................................................ 9
Section 6.02. Absence of Certain Duties...................................................................... 10
Section 6.03. No Representations or Warranties as to Certain Matters......................................... 11
Section 6.04. No Segregation of Monies Required; Investment Thereof.......................................... 11
Section 6.05. Reliance Upon Certificates, Counsel and Agents................................................. 11
Section 6.06. Not Acting in Individual Capacity.............................................................. 12
Section 6.07. Fees; Compensation............................................................................. 12
Section 6.08. Tax Returns.................................................................................... 12
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Section 6.09. Fixed Investment Trust......................................................................... 13
ARTICLE VII INDEMNIFICATION OF THE OWNER TRUSTEE BY THE OWNER PARTICIPANT........................................ 13
Section 7.01. The Owner Participant to Indemnify the Owner Trustee........................................... 13
ARTICLE VIII [RESERVED]........................................................................................... 14
ARTICLE IX SUCCESSOR OWNER TRUSTEES; CO-TRUSTEES................................................................ 14
Section 9.01. Resignation of the Owner Trustee; Appointment of Successor..................................... 14
Section 9.02. Co-Trustees and Separate Trustees.............................................................. 15
ARTICLE X SUPPLEMENTS AND AMENDMENTS TO TRUST AGREEMENT AND OTHER DOCUMENTS................................... 17
Section 10.01. Supplements and Amendments..................................................................... 17
Section 10.02. Discretion as to Execution of Documents........................................................ 18
Section 10.03. Absence of Requirements as to Form............................................................. 18
Section 10.04. Distribution of Documents...................................................................... 18
ARTICLE XI MISCELLANEOUS....................................................................................... 18
Section 11.01. Termination of Trust Agreement................................................................. 18
Section 11.02. The Owner Participant Has No Legal Title in Trust Estate....................................... 19
Section 11.03. Assignment, Sale, etc., of Aircraft............................................................ 19
Section 11.04. Trust Agreement for Benefit of Certain Parties Only............................................ 19
Section 11.05. Notices........................................................................................ 20
Section 11.06. Severability................................................................................... 20
Section 11.07. Waivers, etc................................................................................... 20
Section 11.08. Counterparts................................................................................... 20
Section 11.09. Binding Effect, etc............................................................................ 20
Section 11.10. Headings; References........................................................................... 20
Section 11.11. GOVERNING LAW.................................................................................. 20
Section 11.12. Administration of Trust........................................................................ 21
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TRUST AGREEMENT [N583ML]
This TRUST AGREEMENT [N583ML], dated as of August 10, 1999 between
POLARIS HOLDING COMPANY, a Delaware 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 :
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ARTICLE I
DEFINITIONS AND TERMS
Section 1.01 Definitions. Unless the context shall otherwise
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require and 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:
"Excluded Payments" has the meaning given to such term in the Lease.
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"First Union" means First Union Trust Company, National Association, a
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national banking association.
"Indenture" means Trust Indenture and Security Agreement [N583ML],
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dated as of August 10, 1999, between the Owner Trustee and the Indenture
Trustee, as the same may be amended, modified, or supplemented from time to
time. The term "Indenture" shall also include each Indenture Supplement entered
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into pursuant to the terms of the Indenture.
"Lease" means Lease Agreement [N583ML] dated as of August 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,
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and its successors and permitted assigns, as the lessee under the Lease.
"Owner Participant" means the Person identified as such in the
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introduction hereto.
"Owner Trustee" means the Person identified as such in the
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introduction hereto.
"Participation Agreement" means Participation Agreement [N583ML],
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dated as of August 10, 1999, among the Lessee, the Owner Participant, the
Lessor, the Indenture Trustee and the Loan Participant, as the same may be
amended, modified or supplemented from time to time.
"Trust Agreement" means this Trust Agreement [N583ML] dated as of
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August 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 (i) to execute and deliver the
Participation Agreement, the Lease, the Lease Supplement covering the Aircraft,
the Indenture, the Indenture Supplement covering the Aircraft, the Equipment
Notes 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 hereby declares that
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it will 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 under the Indenture.
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ARTICLE III
ACCEPTANCE AND DELIVERY OF AIRCRAFT; ISSUANCE OF
EQUIPMENT NOTE; 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 pursuant to the
Participation Agreement;
(ii) execute and deliver each of the Operative Agreements to
which the Owner Trustee is to be a party;
(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) issue to the Loan Participant its Equipment Note in
respect of the Aircraft in the amounts and otherwise as provided in
the Participation Agreement and the Indenture;
(vi) execute and deliver the financing statements
contemplated by Sections 3.01(m) and (n) of the Participation
Agreement;
(vii) make application to the FAA for registration of the
Aircraft in the name of the Owner Trustee;
(viii) take such other action as may reasonably be required of
the Owner Trustee hereunder or under the Participation Agreement, the
Indenture or the Lease to effectuate the transactions contemplated
thereby; and
(ix) 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.
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(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 and an Indenture
Supplement, in each case covering the Aircraft.
Section 3.02. Conditions Precedent. The right and obligation of the
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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 its
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 full amount of its
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, upon
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instructions from the Owner Participant, shall take all action specified in
Section 2.01(e) of the Participation Agreement as action to be taken by the
Owner Trustee.
Section 3.04. Authorization in Respect of a Replacement Airframe or
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Replacement Engines. The Owner Trustee agrees for the benefit of the Owner
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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;
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(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 and an Indenture
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;
(f) request in writing that the Indenture Trustee executes and
delivers to Lessee appropriate instruments to release the Airframe or
Engines (or engines) being replaced from the Lien created under the
Indenture and release the Assignment of Warranties (solely with respect to
such replaced Airframe or Engines, if any) from the assignment and pledge
under the Indenture; and
(g) take such further action as may be contemplated by Sections 8(d)
or 7(e) of the Lease, as the case may be.
Section 3.05. Trust Agreement Remaining in Full Force and Effect. In
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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 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 Engine. The
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Owner Trustee agrees for the benefit of the Owner Participant that, 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
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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;
(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); and
(c) request in writing that the Indenture Trustee executes and
delivers to Lessee appropriate instruments to release the Engine being
transferred to Lessee pursuant to such Section 12(b) from the Lien of the
Indenture and to release Assignment of Warranties (solely with respect to
such Engine) from the assignment and pledge under the Indenture.
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE TRUST ESTATE
Section 4.01. Distribution of Payments. (a) Payments to the Indenture
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Trustee. Until the Indenture shall have been terminated pursuant to Section 9.01
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thereof or until the Aircraft shall have been released from the Lien created
under the Indenture pursuant to the terms thereof, all Basic Rent, Supplemental
Rent, insurance proceeds and requisition, indemnity or other payments of any
kind included in the Trust Estate (it being understood that Excluded Payments
are not part of the Trust Estate) 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 Indenture; provided, that any payments received by Owner
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Trustee from (i) Lessee with respect to Owner Trustee's fees and disbursements
or (ii) Owner Participant pursuant to Section 7.01 shall not be paid over to
Indenture Trustee but shall be retained by Owner Trustee and applied toward the
purpose for which such payments were made.
(b) Payments to the Owner Trustee; Other Parties. Any payment of the
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type required to be paid to the Indenture Trustee referred to in paragraph (a)
of this Section 4.01 received by the Owner Trustee after the Indenture shall
have been terminated, any payment received by the Owner Trustee pursuant to the
provisions of Article III of the Indenture (other than Excluded Payments) 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 as shall be required
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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 or of the Indenture shall be
retained by the Owner Trustee; and second, the balance, if any, shall be paid to
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the Owner Participant.
(c) Excluded Payments. Any Excluded Payments received by the Owner
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Trustee shall be paid by the Owner Trustee to the Person to whom such Excluded
Payments are payable under the provisions of the Tax Indemnity Agreement, the
Participation Agreement, the Lease or any other Operative Agreement.
(d) Certain Distributions to Owner Participant. All amounts from time
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to time distributable to Owner Participant pursuant to the Indenture shall, if
paid to Owner Trustee, be distributed by Owner Trustee to Owner Participant in
accordance with the provisions of Article III of the Indenture.
Section 4.02. Method of Payments. The Owner Trustee shall make
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distributions or cause distributions to be made to (i) the Owner Participant
pursuant to this Article IV by transferring by wire transfer in immediately
available funds the amount to be distributed to the account designated in
Schedule II to the Participation Agreement under the heading "Owner Participant"
or such other 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
succeeding Business Day), and (ii) the Indenture Trustee pursuant to this
Article IV by paying the amount to be distributed to the Indenture Trustee in
the manner specified in the Indenture; provided, however, that the Owner Trustee
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shall use 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 but subject
always to the provisions of and Lien created by the Indenture, 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, or causing the Indenture Trustee to credit, 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, or causing the Indenture
Trustee to mail, 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.
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ARTICLE V
DUTIES OF THE OWNER TRUSTEE
Section 5.01. Notice of Event of Default. If the Owner Trustee shall
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have knowledge of a Default or an Event of Default or an Indenture Default or
Indenture 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 certified mail, postage prepaid.
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 Default, Event of Default,
Indenture Default or Indenture 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 a Default, an Event of Default, an Indenture Default or an Indenture Event of
Default unless notified in writing thereof in the manner and at the address set
forth in Section 11.05 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 and under
the Indenture 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 to the
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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 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.
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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 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 or refrain from taking any such action, the Owner
Participant agrees to furnish such indemnity as shall be required and in
addition to pay the reasonable fees and charges of the Owner Trustee for the
services performed or to be performed by it pursuant to such direction. 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 or
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Instructions. The Owner Trustee shall not have any duty or obligation to manage,
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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 (to the extent
not inconsistent with the provisions of the 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 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) all Lessor's Liens
attributable to the Owner Trustee in its individual capacity, (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, except the Lien created under the Indenture, 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 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, use, sell, dispose of or
otherwise deal with the Aircraft or any other part of the
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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, but
subject always to the provisions of the Lien created by the Indenture.
ARTICLE VI
THE OWNER TRUSTEE
Section 6.01. Acceptance of Trusts and Duties. First Union accepts
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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, (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 and (vii) for any liability on the part of the Owner Trustee arising out
of its negligence or willful or negligent misconduct in connection with its
obligations under Section 5.01, 6.08 or 9.02 hereof or Section 4.01 of the
Indenture; provided, however, that the failure to act or perform in the absence
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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 with
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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, 5.04 and
5.05 and the last sentence of Section 9.01(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, the Indenture, 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 upon written request furnished by Lessee 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
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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 the
Indenture Trustee and Owner Participant, promptly upon receipt thereof,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and other instruments furnished to Owner Trustee under the
Lease or any other Operative Agreement except to the extent to which a
Responsible Officer of Owner Trustee reasonably believes (and confirms by
telephone call with Owner Participant) that duplicates or copies thereof have
already been furnished to Owner Participant by some other Person.
Section 6.03. No Representations or Warranties as to Certain Matters.
------------------------------------------------------
THE OWNER TRUSTEE IN ITS INDIVIDUAL CAPACITY OR AS THE OWNER TRUSTEE DOES NOT
MAKE AND SHALL NOT 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 WHATSOEVER, except that the Owner Trustee in its individual capacity
warrants that on the Delivery Date the Owner Trustee shall have received and
shall hold whatever title to the Aircraft 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 (or at the time of execution and delivery of any such instrument
11
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 Thereof.
-----------------------------------------------------
Monies received by the Owner Trustee hereunder need not be segregated 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. 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, Lessee
or the Indenture Trustee 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 an officer of the
Owner Participant, Lessee or the Indenture Trustee, as the case may be. The
Owner Trustee may accept a copy of a resolution of the Board of Directors of
Lessee, the Owner Participant or the Indenture Trustee, as the case may be,
certified by the Secretary or an Assistant Secretary of Lessee, the Owner
Participant or the Indenture Trustee, 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 an officer of
Lessee, the Owner Participant or the Indenture Trustee, 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 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
12
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.
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, the Participation Agreement or the Indenture, 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 or any agreement
contemplated hereby. The Owner Trustee shall be responsible for causing to be
prepared and filed, at Lessee's expense, all income tax returns required to be
filed with respect to the trust created hereby as 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
13
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 9.02 hereof or
Section 4.01 of the Indenture, 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 pursuant to Section 6.01
or 7.01 of the Participation Agreement (but 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 Indenture Estate or 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. In addition, if
necessary, the Owner Trustee shall be entitled to indemnification from the Trust
Estate, subject however to the provisions of Section 4.01 hereof and the Lien
created under the 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.
14
ARTICLE VIII
[RESERVED]
ARTICLE IX
SUCCESSOR OWNER TRUSTEES; CO-TRUSTEES
Section 9.01. Resignation of the 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 5.02(b) of the
Participation Agreement and (ii) may resign at any time without cause by giving
at least 60 days prior written notice to the Owner Participant, the Indenture
Trustee and Lessee, such resignation to be effective upon the acceptance of
appointment by the successor Owner Trustee under Section 9.01(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, the Indenture Trustee and
Lessee. Any such removal shall be effective upon the acceptance of appointment
by the successor Owner Trustee under Section 9.01(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 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 within one year from the date of the appointment by
such court.
(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, Lessee and Indenture Trustee, 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.
15
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.
(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), be the Owner Trustee hereunder without further
act; provided that such corporation shall not also be the Indenture Trustee.
Section 9.02. 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 (i) 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, or (ii)
an Indenture Event of Default not arising from an Event of Default shall occur
and be continuing, the Owner Trustee may act under the foregoing provisions of
this Section 9.02 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 9.02 in either
of such contingencies.
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:
16
(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 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;
(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; and
(f) no appointing 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 Indenture or affect the interests of the
Indenture Trustee or the Noteholders in the Trust Estate.
In case any separate trustee under this Section 9.02 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.
17
ARTICLE X
SUPPLEMENTS AND AMENDMENTS TO TRUST AGREEMENT
AND OTHER DOCUMENTS
Section 10.01. Supplements and Amendments. (a) 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, subject to Section 5.11 of the Participation Agreement, 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
11.11) as specified in such request, and (ii) the Owner Trustee shall, subject
to compliance with the applicable provisions of Section 8.01 of the Indenture,
enter into such written amendment of or supplement to any other Operative
Agreement to which the Owner Trustee is a party as the Indenture Trustee,
Noteholders and 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, Noteholders and the Indenture
Trustee may agree to and as may be specified in such request.
(b) Delivery of Amendments and Supplements to Certain Parties. Until
---------------------------------------------------------
the Indenture shall have been terminated pursuant to Section 9.01 thereof or the
Aircraft shall have been released from the Indenture Estate, a signed copy of
each amendment or supplement to the Trust Agreement shall be delivered by the
Owner Trustee to the Indenture Trustee without in any way affecting the
Indenture or the Equipment Notes and without imposing any duty on the Indenture
Trustee with respect to such amendment or supplement.
Section 10.02. Discretion as to Execution of Documents. If in the
---------------------------------------
opinion of the Owner Trustee any document required to be executed pursuant to
the terms of Section 10.01 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 10.03. Absence of Requirements as to Form. It shall not be
----------------------------------
necessary for any written request furnished pursuant to Section 10.01 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.
18
Section 10.04. Distribution of Documents. Promptly after the
-------------------------
execution by the Owner Trustee of any document entered into pursuant to Section
10.01, 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.
ARTICLE XI
MISCELLANEOUS
Section 11.01. 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
termination of the Indenture pursuant to Section 9.01 thereof 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 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.
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 time the Lien of the Indenture is discharged under Section 9.01 of the
Indenture and after the Lease shall no longer be in effect.
19
Section 11.02. 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 11.03. 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 11.04. Trust Agreement for Benefit of Certain Parties Only.
---------------------------------------------------
Except for the terms of Section 4.01, Articles V and IX, Sections 10.01, 11.01
and 11.03 hereof, nothing herein, whether express 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. 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 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 specified 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.
20
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 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 shall bind its
successors and permitted assigns.
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. (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 11.05. EACH PARTY HERETO HEREBY AGREES THAT SERVICE UPON IT IN
ACCORDANCE WITH THIS SECTION 11.11(c) SHALL CONSTITUTE VALID AND EFFECTIVE
PERSONAL SERVICE UPON SUCH PARTY.
(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
21
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 11.12. Administration of Trust. The principal place of
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administration of the trust created by this Trust Agreement shall be in the
State of Delaware.
* * *
22
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.
POLARIS HOLDING COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇
Title: Executive Vice President
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
23
Note to Exhibit 10.2
The following Trust Agreement is substantially identical in all material
respects to the Trust Agreement filed herewith except as follows:
Date Aircraft Tail No.
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August 10, 1999 N584ML
September 10, 1999 N585ML