Exhibit 3.33
SECOND AMENDED AND RESTATED
TRUST AGREEMENT
Dated as of September 29, 1995
between
747 INC.,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ INC.,
as Beneficiaries
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
One Boeing 747-273C Aircraft
and
Three ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DC-9-33F Aircraft
TABLE OF CONTENTS
PAGE
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ARTICLE I
OWNER TRUSTEE'S AUTHORIZATION AND DIRECTION ............- 2 -
1.1 Creation of Trust ..............................................- 2 -
1.2 Authorization to Execute Certain Documents .....................- 2 -
1.3 Conditions Precedent to Owner Trustee's Obligation
and Authority ...............................................- 3 -
1.4 Instructions ...................................................- 3 -
1.5 Replacement Engines ............................................- 3 -
ARTICLE II
DECLARATION OF TRUSTS .......................- 4 -
2.1 Declaration of Trusts ..........................................- 4 -
ARTICLE III
BENEFICIARY'S AGREEMENTS ......................- 4 -
3.1 [RESERVED] .....................................................- 4 -
3.2 Indemnification of Owner Trustee; Owner Trustee's
Lien on Trust Estate ........................................- 4 -
3.3 Preparation of Tax Returns and Other Reports ...................- 6 -
3.4 Allocation of Interest .........................................- 6 -
ARTICLE IV
OWNER TRUSTEE'S AGREEMENTS .....................- 6 -
4.1 Execution and Delivery of Documents and Performance of
Obligations .................................................- 6 -
4.2 [RESERVED] .....................................................- 6 -
4.3 Receipt of Funds Pursuant to Lease or otherwise
and Distribution Thereof ....................................- 6 -
4.4 Payments from Trust Estate Only ................................- 7 -
4.5 Method of Payment ..............................................- 7 -
4.6 Obligations in Connection with Event of Default ................- 7 -
4.7 Take Certain Action Upon Specific Instructions .................- 8 -
4.8 Limitation of Owner Trustee's Responsibilities .................- 9 -
4.9 Management of the Trust Estate ................................- 10 -
ARTICLE V
CONCERNING THE OWNER TRUSTEE ...................- 11 -
5.1 Standard of Care ..............................................- 11 -
5.2 No Duties of Maintenance, etc .................................- 11 -
5.3 Representations and Warranties ................................- 12 -
5.4 Reliance on Writings, Use of Agents, etc ......................- 12 -
ARTICLE VI
EFFECT OF SALES BY OWNER TRUSTEE .................- 13 -
6.1 Effect of Sales by Owner Trustee ..............................- 13 -
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ARTICLE VII
RESIGNATION AND REMOVAL OF OWNER TRUSTEE;
APPOINTMENT OF SUCCESSORS ....................- 13 -
7.1 Resignation; Successor Owner Trustee ..........................- 13 -
7.2 Acceptance of Appointment .....................................- 14 -
7.3 Qualification of Successor Owner Trustee ......................- 14 -
7.4 Merger of Owner Trustee .......................................- 15 -
7.5 Status of Successor Owner Trustee .............................- 15 -
7.6 Appointment of Co-Trustees and Separate Trustees ..............- 15 -
ARTICLE VIII
TRANSFER OF THE BENEFICIARY'S INTEREST ...................- 16 -
8.1 Restrictions on Transfer or Assignment ........................- 16 -
8.2 Notice of Transfer ............................................- 18 -
ARTICLE IX
TERMINATION OF AND AMENDMENT TO TRUST .....................- 18 -
9.1 Termination ...................................................- 18 -
9.2 Termination at Option of Beneficiary ..........................- 19 -
9.3 Distribution of the Trust Estate Upon Termination .............- 19 -
9.4 Supplements and Amendments to This Trust Agreement
and other Documents ........................................- 20 -
ARTICLE X
COMPENSATION, COSTS AND EXPENSES OF OWNER TRUSTEE - 20 -
10.1 Compensation, Costs and Expenses of Owner Trustee .............- 20 -
ARTICLE XI
MISCELLANEOUS ...........................- 21 -
11.1 Entire Agreement ..............................................- 21 -
11.2 Notices .......................................................- 21 -
11.3 Situs of Trust; Governing Law .................................- 21 -
11.4 Non-Segregation of Monies .....................................- 22 -
11.5 Benefit of Parties, Successors and Assigns ....................- 22 -
11.6 Survival of Representations and Warranties ....................- 22 -
11.7 Severability of Invalid Provisions ............................- 22 -
11.8 Effect of Waiver ..............................................- 22 -
11.9 Remedies Not Exclusive ........................................- 22 -
11.10 References to Agreements and Instruments ......................- 23 -
11.11 Headings and Table of Contents ................................- 23 -
11.12 Construction of References ....................................- 23 -
11.13 Counterpart Execution and Dating ..............................- 23 -
- ii -
SECOND AMENDED AND RESTATED
TRUST AGREEMENT
This SECOND AMENDED AND RESTATED TRUST AGREEMENT dated as of September
29, 1995 (the "Trust Agreement") among 747 INC., an Oregon corporation, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, a natural person, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ INC., a Nevada corporation (all such
parties being herein called the "Beneficiary", such term to refer to each
Beneficiary or, collectively, all Beneficiaries, as the context may require),
and WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its
individual capacity but solely as trustee hereunder (in such capacity, the
"Owner Trustee").
W I T N E S S E T H:
WHEREAS, the Amended and Restated Participation Agreement dated as of
August 31, 1987, which amended and restated the Participation Agreement dated as
of February 25, 1986 (collectively, the "Original Participation Agreement"),
among the Beneficiary, the Owner Trustee, TCW Special Credits, as agent and on
behalf of certain funds and accounts and as assignee of Security Pacific
Equipment Finance (Europe), Inc., as loan participant (the "Loan Participant"),
and Evergreen International Airlines, Inc., as lessee (the "Lessee") provided
for the financing and lease of certain Leased Property;
WHEREAS, terms used herein are used as defined in the Second Amended
and Restated Lease Agreement dated as of September 29, 1995 (the "Lease")
between the Owner Trustee, as Lessor, and the Lessee;
WHEREAS, the parties to the Original Participation Agreement desire to
restructure their respective obligations under the Lease, the Mortgage, the
Guaranty and Subordination Agreement, the Note and other agreements pursuant to
a Restructure Agreement dated as of September 29, 1995 (the "Restructure
Agreement"), and the Beneficiary and the Owner Trustee desire to amend and
restate the Amended and Restated Trust Agreement dated as of August 31, 1987,
which amended and restated the Trust Agreement dated as of February 25, 1986 as
amended by Amendment Number One dated as of August 31, 1988 (as so amended and
restated, the "Original Trust Agreement"), to reflect the terms and conditions
of the Restructure Agreement; and
WHEREAS, the Owner Trustee is willing to accept the duties and
obligations imposed hereby on the terms and conditions set forth herein.
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NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree to amend and restate the Original Trust Agreement in its entirety
as follows:
ARTICLE I
OWNER TRUSTEE'S AUTHORIZATION AND DIRECTION
1.1 Creation of Trust. The Beneficiary and the Owner Trustee hereby
confirm the trust (the "Trust") created by the Original Trust Agreement, which
Trust shall be identified by the date of the Original Trust Agreement.
1.2 Authorization to Execute Certain Documents. The Beneficiary hereby
authorizes and directs the Owner Trustee, not individually but solely on behalf
of the Trust, to take the following action:
(a) execute and deliver the Participation Agreement, the
Mortgage, the Lease, the Guaranty and Subordination Agreement, the
Junior Mortgage and, subject to the provisions hereof, any amendments
to and restated versions of such documents;
(b) execute and deliver one or more Lease Supplements and Trust
Agreement and Mortgage Supplements as are necessary to cover the
Leased Property;
(c) execute and deliver the Note with the blanks therein
completed, all in accordance with the terms and provisions of the
Mortgage and in such principal amounts and bearing such rates of
interest as may be determined under and in accordance with the
Participation Agreement and the Mortgage;
(d) execute and deliver, or to accept, each document referred to
in the Restructure Agreement, the Mortgage, the Lease or the
Participation Agreement and required under the terms thereof to
consummate the transactions contemplated thereby;
(e) pay to the Loan Participant the amounts to be paid to the
Loan Participant in respect of the installment of principal due on the
Note under the Mortgage on the due dates of such payments and to hold
the balance of remaining funds in its possession in
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connection with the transactions contemplated by the Restructure
Agreement, if any, as provided in the Participation Agreement;
(f) execute and deliver amendments to the Uniform Commercial Code
financing statements necessary to consummate the transactions
contemplated by the Restructure Agreement; and
(g) subject to the terms of this Trust Agreement, to exercise all
of the rights and perform all the obligations of the Lessor under the
Lease and the Owner Trustee under the Participation Agreement, the
Mortgage, the Guaranty and Subordination Agreement, the Lease and the
Junior Mortgage.
1.3 Conditions Precedent to Owner Trustee's Obligation and
Authority. The obligation and authority of the owner Trustee to take the actions
referred to in paragraphs (c), and (g) (with respect to the rights and
obligations of the Owner Trustee under the Participation Agreement and under the
Mortgage) of Section 1.2 hereof shall be subject to the conditions precedent
that the conditions set forth in the Participation Agreement with respect to the
Owner Participant Commitment (as therein defined) shall have been complied with
in a manner satisfactory to the Beneficiary.
1.4 Instructions. The Owner Trustee, without necessity of further
instructions from the Beneficiary, is hereby authorized and directed by the
Beneficiary to take all action specified in Section 3 of the Participation
Agreement as action to be taken by the Owner Trustee.
1.5 Replacement Engines. The Beneficiary hereby authorizes and directs
the Owner Trustee, and the Owner Trustee agrees for the benefit of the
Beneficiary and the Lessee, that, in the event of a replacement engine, if any,
being substituted pursuant to Section 10(b) of the Lease, it will, subject to
Section 4.7 hereof and to due compliance with the terms of Section 10(b) of the
Lease and Section 6.5 of the Mortgage: (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
the Lessee) to accept delivery of the replacement engine; (b) accept from the
Lessee or other vendor of the replacement engine a ▇▇▇▇ of sale or bills of sale
and the invoice, if any, with respect to the replacement engine being furnished
pursuant to Section 10(b) of the Lease; (c) execute and deliver a Lease
Supplement and a Trust Agreement and Mortgage Supplement covering such
replacement engine; (d) transfer title to the engine being replaced to the
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Lessee; and (e) request in writing that the Mortgagee execute and deliver to
the Lessee an appropriate instrument releasing the engine being replaced from
the lien of the Mortgage (solely with respect to such replaced engine) from the
assignment and pledge under the Mortgage.
ARTICLE II
DECLARATION OF TRUSTS
2.1 Declaration of Trusts. The Owner Trustee hereby declares, with
respect to the Trust, that it will hold all estate, right, title and interest in
and to the Leased Property, the Lease, the Guaranty and Subordination Agreement
and the Junior Mortgage and any funds transmitted to the Owner Trustee pursuant
to the Operative Documents, including, without limitation, the Purchase Deposit
and the Cash Deposit (as such terms are defined in the Mortgage) and all amounts
of rent, insurance proceeds, indemnity and other payments of any kind for or
with respect to the Leased Property or any part thereof, (all such estate,
right, title and interest being herein sometimes called, with respect to the
Trust, the "Trust Estate") for the use and benefit of the Beneficiary, subject,
however, to the terms and conditions hereof, of the Restructure Agreement, the
Mortgage, including the grant of a security interest and mortgage by the Owner
Trustee in the Trust Estate, of the Lease and of all other documents referred to
herein and therein and the rights of others hereunder and thereunder. The Trust
Estate expressly excludes any payments received by the Owner Trustee in its
individual capacity, including, without limitation, any insurance and
indemnification payments.
ARTICLE III
BENEFICIARY'S AGREEMENTS
The Beneficiary acknowledges and agrees as follows:
3.1 [RESERVED].
3.2 Indemnification of Owner Trustee; Owner Trustee's Lien on Trust
Estate. The Beneficiary shall assume liability for, and shall indemnify,
protect, save and keep harmless Wilmington Trust Company, in its individual
capacity or as Owner Trustee (including any co-trustee or separate trustee
appointed pursuant to Section 7.6 hereof) and its successors, assigns and agents
(each such person being herein referred to as an "indemnified person") from and
against any and all liabilities, obligations, losses, damages, penalties, taxes
(other than any
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income taxes on fees or other compensation received by Wilmington Trust Company
for serving as a trustee), claims (including, without limitation, claims
involving strict or absolute liability in tort), actions, suits, costs, expenses
and disbursements (including, without limitation, legal fees and expenses) of
any kind and nature whatsoever (hereinafter referred to as "Claims") which may
be imposed on, incurred by or asserted against any indemnified person, whether
or not also indemnified against by the Lessee or by any other person, in any way
relating to or arising out of this Trust Agreement, the Trust created hereby,
the Participation Agreement, the Mortgage, the Lease, the Guaranty and
Subordination Agreement, the Junior Mortgage or any document contemplated hereby
or thereby, or the performance or enforcement of any of the terms hereof or
thereof, or in any way relating to or arising out of the manufacture,
purchase, acceptance, rejection, ownership, delivery, lease, sublease,
possession, use, operation, maintenance, condition, registration, sale, return,
storage or other disposition of the Leased Property or any part thereof or any
accident in connection therewith (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 and the Trust Estate or the action or inaction of
any indemnified person hereunder, provided, however, that the Beneficiary shall
not be required to indemnify any indemnified person for any Claims resulting
from acts which constitute the willful misconduct or gross negligence of such
indemnified person, but (except as set forth in clause (3) of paragraph (b) of
Section 7.6 hereof) the willful misconduct or gross negligence of any one
indemnified person shall not affect the rights of any other indemnified person
hereunder, and provided further, that the Beneficiary shall not be required to
indemnify Wilmington Trust Company with respect to Claims resulting from (a) any
representation or warranty of Wilmington Trust Company contained herein proving
to be untrue or inaccurate; (b) any representation or warranty of Wilmington
Trust Company made expressly in its individual capacity and contained in the
Participation Agreement proving to be untrue or inaccurate; (c) any breach of
any covenant by Wilmington Trust Company made expressly in its individual
capacity herein or in the Participation Agreement and (d) any matter for which
the Owner Trustee is personally liable pursuant to Section 5.1 hereof. The
indemnities contained in this Section shall survive the termination of this
Trust Agreement and of the Trust created hereby and such indemnities are
expressly made for the benefit of, and shall be enforceable by, each indemnified
person notwithstanding the fact that such indemnified person is no longer a
party to this Trust Agreement or was not a party to this Trust Agreement on the
date of the execution hereof. In addition, to secure the foregoing indemnities
by the Beneficiary,
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Wilmington Trust Company, in its individual capacity and as Owner Trustee,
shall, to the extent not reimbursed by the Lessee under the Lease or any other
person, have a lien on the Trust Estate prior to any interest therein of the
Beneficiary but junior to the lien of the Loan Participant.
3.3 Preparation of Tax Returns and Other Reports. The Beneficiary
shall prepare or cause to be prepared, and may direct the Owner Trustee to file,
all tax returns and other governmental reports required to be filed by the Owner
Trustee in connection with the transactions contemplated hereby.
3.4 Allocation of Interest. The interest of each of the Beneficiaries
in the portion of the Trust Estate relating to the 747 Leased Property is 33 1/3
percent and the interest of 747 Inc. in the portion of the Trust Estate relating
to the DC-9 Leased Property is 100 percent.
ARTICLE IV
OWNER TRUSTEE'S AGREEMENTS
The Owner Trustee hereby agrees as follows:
4.1 Execution and Delivery of Documents and Performance of
Obligations. The Owner Trustee shall accept or execute and shall deliver the
documents referred to in Article I hereof, in any other Article hereof or in any
directive of the Beneficiary (not inconsistent with the provisions of the
Mortgage) given pursuant hereto, and shall perform with respect to the Trust all
the obligations and duties of the Owner Trustee hereunder and thereunder.
4.2 [RESERVED]
4.3 Receipt of Funds Pursuant to Lease or Otherwise and Distribution
Thereof. (a) Until the Mortgage shall have been discharged pursuant to Section
8.1 thereof, all Basic Rent, Supplemental Rent, insurance proceeds and
requisition, indemnity or other payments of any kind for or with respect to the
Leased Property and all other amounts included in the Trust Estate payable to
or received by the Owner Trustee shall be payable by the Owner Trustee directly
to the Loan Participant unless otherwise directed in writing by the Loan
Participant (and if any of the same are received by the Owner Trustee, shall
upon receipt be paid over to the Loan Participant without deduction, set-off or
adjustment of any kind) for distribution in accordance with the provisions of
Article IV of the Mortgage.
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(b) After the Mortgage shall have been discharged pursuant to Section
8.1 thereof, any payment of the type referred to in paragraph (a) of this
Section 4.3 received by the Owner Trustee, any payments received from the Loan
Participant and any other amount received 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 Wilmington Trust Company, in its
individual capacity and as Owner Trustee, for any expenses not otherwise
reimbursed as to which it is entitled to be so reimbursed pursuant to the
provisions hereof shall be retained by the Owner Trustee; and second, the
balance, if any, shall be paid to the Beneficiary.
4.4 Payments from Trust Estate Only. All payments to be made by the
Owner Trustee under this Agreement shall be made only from the income and the
proceeds from the Trust Estate and only to the extent that the Owner Trustee
shall have received income or proceeds from the Trust Estate, except as
specifically provided in Section 4.3 hereof. The Beneficiary agrees that it will
look solely to the income and proceeds from the Trust Estate to the extent
available for payment as herein provided and that, except as specifically
provided herein, Wilmington Trust Company shall not be liable in its individual
capacity to the Beneficiary or any persons for any amounts payable under this
Agreement and shall not be subject to any liability in its individual capacity
under this Trust Agreement.
4.5 Method of Payment. All amounts payable to the Beneficiary pursuant
to this Agreement shall be paid by the Owner Trustee to the Beneficiary or a
nominee therefor by crediting the amount to be distributed to the Beneficiary to
an account maintained by the Beneficiary with the Owner Trustee in immediately
available funds or by transferring such amount in immediately available funds to
a banking institution with bank wire transfer facilities for the account of the
Beneficiary, as instructed from time to time by the Beneficiary.
4.6 Obligations in Connection with Event of Default. In the event the
Owner Trustee shall have knowledge of an Event of Default under the Restructure
Agreement, the Lease, the Mortgage or the Junior Mortgage, the Owner Trustee
promptly shall give notice of such Event of Default to the Beneficiary and the
Loan Participant by telephone or facsimile, which notice shall be promptly
confirmed by first class registered or certified postage prepaid mail, unless
such Event of Default shall have been remedied before the giving of such notice.
Subject to the terms of Section 4.8 hereof, the Owner Trustee shall take such
action, or refrain from taking such action, not inconsistent with the provisions
of the Mortgage, with respect to such Event of Default
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as the Owner Trustee shall be directed in writing by the Beneficiary. If the
Owner Trustee shall not have received instructions as above provided within 20
days after mailing notice of such Event of Default to the Beneficiary and the
Loan Participant, the Owner Trustee may, subject to instructions thereafter
received pursuant to the preceding sentence, take such action, or refrain from
taking such action, but shall be under no duty to take or refrain from taking
any action, with respect to such Event of Default, not inconsistent with the
provisions of the Mortgage, as it shall deem advisable in the best interest of
the Beneficiary. For all purposes of this Trust Agreement, in the absence of
actual knowledge by an officer of the Corporate Trust Administration Department
responsible for the administration of the Trust Estate, the Owner Trustee shall
not be deemed to have knowledge of an Event of Default unless notified in
writing by the Beneficiary, the Lessee or the Loan Participant, except that, if
the Owner Trustee is receiving and disbursing funds with respect to the Lease,
the Owner Trustee shall be deemed to have knowledge of an Event of Default upon
the failure of the Lessee to pay any installment of Basic Rent within 10
Business Days after the same shall become due. For purposes of this Trust
Agreement and all other documents or instruments contemplated hereby or referred
to herein, the Owner Trustee shall not be deemed to have actual knowledge of an
Event of Default unless the same is known by an officer in the Corporate Trust
Administration of the Owner Trustee.
4.7 Take Certain Action Upon Specific Instructions.(a) Subject to the
terms of Section 4.8 hereof and upon the written instruction at any time and
from time to time of the Beneficiary, the Owner Trustee shall take such of the
following actions, not inconsistent with the provisions of the Mortgage, as may
be specified in such instructions:
(1) give such notice or direction or exercise such right, remedy
or power under the Lease, the Guaranty and Subordination Agreement,
the Junior Mortgage or in respect of the Trust Estate as shall be
specified in such instructions or take such other action (including,
without limitation, such action to preserve or protect the Trust
Estate, including the discharge of liens or encumbrances, as the
Lessee shall not be required to take in accordance with the terms of
the Lease) as shall be specified in such instructions;
(2) subject to Section 8.1 hereof, approve as satisfactory to the
Owner Trustee or consent to all matters required by the terms of the
Lease and other documents referred to herein to be satisfactory to the
Owner Trustee or consented to by the Owner Trustee; and
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(3) after the expiration or earlier termination of the Lease,
convey (subject to the lien, if any, of the Mortgage and the Junior
mortgage), at the expense of the Beneficiary, all of the Owner
Trustee's right, title and interest in and to the Leased Property or
any part thereof for such amount or on such terms and to such
purchaser or purchasers as shall be designated in such instructions or
lease or otherwise dispose of the Leased Property on such terms as
shall be designated in such instructions.
The Owner Trustee shall, by notice to the Lessee and without further instruction
from any Participant, require that the Lessee take all action as may from time
to time be specified in the opinion referred to in Section 8(o) of the
Participation Agreement or be specified in other such instruction from a
Participant to the Owner Trustee, in order to maintain the perfection of the
security interest of the Loan Participant in the Mortgage Estate.
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
instruction of the Beneficiary, provided, however, that if the Owner Trustee
shall not have received instructions from the Beneficiary pursuant to its
request within twenty (20) days after the date of such request, until instructed
otherwise, the Owner Trustee may, but shall not be obligated to, take or refrain
from taking such action as it shall deem advisable in the best interest of the
Beneficiary.
(b) In any case in which any provision of this Agreement requires the
consent, direction, approval or instructions of the Beneficiary to permit or
require the Owner Trustee to take, or refrain from taking, any action, or in
which this Trust Agreement envisages the Beneficiary acting to remove the Owner
Trustee or appointing a successor Owner Trustee such provision shall be deemed
to require the consent, direction, approval or instructions, as the case may
be, of Beneficiaries having more than 50% of the aggregate beneficial interest
in the Trust Estate.
4.8 Limitation of Owner Trustee's Responsibilities. The Owner Trustee
shall not be required to take any action under Section 4.6 or 4.7 hereof unless
the Owner Trustee shall have been indemnified by the Beneficiary in manner and
form satisfactory to the Owner Trustee against any liability, cost or expense
(including reasonable counsel fees) which may be incurred in connection with
such action. The Owner Trustee shall not be
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required to take any action under Section 4.6 or 4.7 hereof, nor shall any other
provision of this Trust Agreement be deemed to impose a duty on the Owner
Trustee to take any action, if the Owner Trustee shall have been advised by
counsel that such action is contrary to the terms of this Trust Agreement, the
Participation Agreement, the Mortgage, the Guaranty and Subordination Agreement,
the Junior Mortgage or the Lease, or is otherwise contrary to law.
4.9 Management of the Trust Estate.
(a) The Owner Trustee shall have no duty or obligation with respect to
the Trust to manage, control, use, sell, operate, store, lease, dispose of or
otherwise deal with the Leased Property or any other part of the Trust Estate or
otherwise to take or refrain from taking any action under or in connection with
the Lease, the Participation Agreement, the Guaranty and Subordination
Agreement, the Mortgage, the Junior Mortgage or any other document or any other
action with respect to the Leased Property except as expressly required by the
terms of the Lease or the Participation Agreement or as expressly provided by
the terms of this Trust Agreement, or (to the extent not inconsistent with the
terms of the Mortgage) as expressly provided in written instructions relating to
such funds from the Beneficiary and no implied duties or obligations shall be
read into this Trust Agreement against the Owner Trustee. Wilmington Trust
Company nevertheless agrees in its individual capacity and not in its capacity
as Owner Trustee, and at its own cost and expense, promptly to take such action
as may be necessary with respect to the Trust to discharge any Lessor Liens
attributable to it in its individual capacity and unrelated to the transactions
contemplated by the Operative Documents.
(b) Anything herein to the contrary notwithstanding, the Owner Trustee
shall comply with the provisions of Section 1.2 or Section 1.5 hereof, as the
case may be, upon the performance, to the satisfaction of special counsel for
the Owner Trustee, of all the applicable conditions precedent specified in
Section 1.3 hereof and in Sections 3 and 4 of the Participation Agreement, and
in Section 10(b) of the Lease, as the case may be.
(c) The Owner Trustee agrees with respect to the Trust that it will
not manage, control, use, sell, dispose of or otherwise deal with the Leased
Property or any other part of the Trust Estate except (i) as required by the
terms of the Participation Agreement, the Mortgage, the Guaranty and
Subordination Agreement, the Junior Mortgage or the Lease, (ii) in accordance
with the powers granted to or the authority conferred on the Owner Trustee
pursuant to this Trust Agreement,
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or (iii) in accordance with written instructions relating to such funds from the
Beneficiary.
ARTICLE V
CONCERNING THE OWNER TRUSTEE
5.1 Standard of Care. The Owner Trustee accepts the trusts hereby
created and agrees to perform the same but only upon the terms of this Trust
Agreement. The Owner Trustee shall not be answerable or accountable to the
Beneficiary under any circumstances except for its own willful misconduct or
gross negligence and except that, insofar as in performing its undertakings set
forth in this Trust Agreement the owner Trustee actually receives funds and
insofar as the Owner Trustee receives express written instructions relating to
such funds from the Beneficiary, it shall be held to the same degree of care and
skill in handling such funds and in complying with such instructions as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
5.2 No Duties of Maintenance, etc. Except in accordance with written
instructions pursuant to Section 4.7 hereof and except as provided in, and
without limiting the generality of, Sections 4.9 and 7.2 hereof, the Owner
Trustee shall have no duty with respect to the Trust (i) to see to any
registration of any Aircraft or any recording or filing of the Lease, this
Trust Agreement, the Mortgage, the Junior Mortgage or any instrument or document
described in this Trust Agreement or any security interest or lien or to see to
the maintenance of any such documentation, recording or filing, (ii) to see to
any insurance on any part of the Trust Estate or to effect or maintain any such
insurance, whether or not the Lessee shall be in default with respect to the
Lease, other than to receive and hold any insurance policies, cover certificates
or binders furnished to the Owner Trustee by the Lessee pursuant to Section 11
of the Lease, (iii) other than as provided in Section 4.9(a) hereof, to see to
the payment or discharge of any tax, assessment or other governmental charge or
any lien or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Estate or to make or file any reports or returns
related thereto, (iv) to confirm, verify or inquire into the failure of the
Lessee to send any reports or financial statements of the Lessee, (v) to
inspect the Leased Property or any part thereof at any time or ascertain or
inquire as to the performance or observance of the Lessee's covenants under the
Lease with respect to the properties subject thereto or (vi) to approve as
satisfactory to it or consent to any matter required by the terms of the
Participation Agreement, the Mortgage, the Guaranty and
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subordination Agreement, the Junior Mortgage or the Lease or of any other
instrument or document executed and delivered by the Owner Trustee pursuant to
Article I hereof to be satisfactory to the Owner Trustee or consented to by the
Owner Trustee.
5.3 Representations and Warranties. THE OWNER TRUSTEE MAKES (a) NO
REPRESENTATION OR WARRANTY AS TO THE VALUE, CONDITION, MERCHANTABILITY OR
FITNESS FOR USE OF ANY PART OF THE TRUST ESTATE OR AS TO ITS TITLE THERETO, OR
ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE TRUST ESTATE WHATSOEVER
except that Wilmington Trust Company in its individual capacity hereby
represents and warrants to the Beneficiary that (i) the owner Trustee has
received whatever title was conveyed to it by the 747 Seller or the DC-9 Seller,
as the case may be, and (ii) the properties included in the Trust Estate shall
at all times be free of liens, encumbrances or security interests resulting from
claims against Wilmington Trust Company in its individual capacity not related
to ownership of such properties or to the Owner Trustee's administration of the
Trust Estate, and (b) no representation or warranty as to the validity, legality
or enforceability of this Trust Agreement or any of the instruments or documents
described herein or as to the correctness of any statement contained in any
thereof or the due creation or perfection of any lien or security interest
purported to be created by any thereof, except that Wilmington Trust Company in
its individual capacity hereby represents and warrants that (x) this Trust
Agreement has been and the Participation Agreement, the Mortgage, the Guaranty
and subordination Agreement, any Trust Agreement and Mortgage Supplement, the
Note, the Lease, any Lease Supplement and the Junior Mortgage have been
(assuming due authorization, execution and delivery of this Trust Agreement by
the Beneficiary) (or at the time of execution and delivery of any such
instrument by the Owner Trustee under this Trust Agreement as originally
executed that such an instrument will be) duly executed and delivered by one of
its officers who is or will be, as the case maybe, duly authorized to execute
and deliver such instruments on behalf of the Owner Trustee and (y) on the date
of execution and delivery of this Trust Agreement it is (and will be) a "citizen
of the United States" as defined in 49 U.S.C. (S) 40102(a)(15),
5.4 Reliance on Writings, Use of Agents, etc. The Owner Trustee shall
not incur any liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, telegram, order, certificate, report,
opinion, bond or other document or paper believed by it to be genuine and
believed by it to be signed or sent by the proper party or parties. The Owner
Trustee may accept a copy of a resolution of the Board of Directors or the
Executive Committee, if any, of the Lessee or the Beneficiary certified by the
Secretary or an Assistant
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Secretary of the Lessee or the Beneficiary as duly adopted and in full force and
effect, as conclusive evidence that such resolution has been duly adopted by
such Board of Directors or Executive Committee and that the same is in full
force and effect. As to any fact or matter the manner of ascertainment of which
is not specifically described herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the Chairman of the Board, or by the
President, or by an Executive Vice President or Vice President, or by the
Treasurer, or by the Controller, or by the Secretary of the Lessee or the
Beneficiary, 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 them in good faith in reliance thereon. In the
performance of its duties hereunder, the Owner Trustee may execute any of the
trusts or powers hereof and perform its powers and duties hereunder directly or
through agents (and pursuant to Article XI hereof, is so doing) 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, and the Owner Trustee
shall not be liable for anything done, suffered or omitted in good faith in
accordance with the advice or opinion of any such counsel, accountants or other
skilled persons.
ARTICLE VI
EFFECT OF SALES BY OWNER TRUSTEE
6.1 Effect of Sales by Owner Trustee. Any sale of all or any part of
the Trust Estate by the Owner Trustee or its agent shall with respect to the
Trust bind the Beneficiary and shall be effective for the benefit of the
purchasers thereof and their respective successors and assigns to divest and
transfer all right, title and interest of the Owner Trustee in the property so
sold, and no such purchasers shall be required to inquire as to compliance by
the Owner Trustee with any of the terms of this Trust Agreement or to see to the
application of any consideration paid for such property.
ARTICLE VII
RESIGNATION AND REMOVAL OF OWNER TRUSTEE;
APPOINTMENT OF SUCCESSORS
7.1 Resignation; Successors Owner Trustee. The Owner Trustee or any
successor thereto may, with respect to the Trust, resign at any time without
cause by giving at least 30 days' prior written notice to the Beneficiary and
the Loan Participant, such resignation to be effective on the date of
appointment of a successor trustee as hereinafter provided. In addition, the
Beneficiary may at any time with respect to the Trust remove the
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owner Trustee without cause by an instrument in writing, which instrument shall
designate the effective date of any such removal, delivered to the Owner
Trustee. In the case of the resignation or removal of the Owner Trustee, the
Beneficiary shall appoint a successor trustee by an instrument signed by the
Beneficiary. If the Beneficiary shall not have appointed a successor trustee
within 30 days after such resignation or removal, the Owner Trustee shall
continue as Owner Trustee and may apply to any court of competent jurisdiction
to appoint a successor trustee to act until such time, if any, as a successor
shall have been appointed by the Beneficiary as above provided. Any successor
trustee so appointed by such court shall immediately and without further act be
superseded by any successor trustee thereafter appointed by the Beneficiary.
A successor trustee hereunder shall be deemed an owner Trustee for all
purposes hereof, and each reference herein to the Owner Trustee shall thereafter
be deemed to include such successor.
7.2 Acceptance of Appointment. Any successor trustee, whether
appointed by a court or by the Beneficiary, shall execute and deliver to its or
his predecessor trustee an instrument reasonably satisfactory to such
predecessor trustee accepting such appointment, and thereupon such successor
trustee, without further act, shall with respect to the Trust become vested with
all the estates, properties, rights, powers, duties and trusts of the
predecessor trustee in the trusts hereunder with like effect as if originally
named as an Owner Trustee herein; but nevertheless upon the written request of
such successor trustee such predecessor trustee shall execute and deliver an
instrument reasonably satisfactory to such successor trustee transferring to
such successor trustee, upon the trusts herein expressed, all the estates,
properties, rights, powers and trusts of such predecessor trustee, and such
predecessor trustee shall duly assign, transfer, deliver and pay over to such
successor trustee any property or monies then held by such predecessor trustee
upon the trusts herein expressed.
7.3 Qualification of Successor Owner Trustee. Any successor to the
Owner Trustee, however appointed, shall be a "citizen of the United States" as
defined in 49 U.S.C. (S) 40102(a)(15), and shall also be a solvent bank or trust
company organized under the laws of the United States or any jurisdiction
thereof having a combined capital and surplus of at least $50,000,000, 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. In addition,
such successor shall be reasonably satisfactory to the Loan
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Participant, which satisfaction shall be evidenced by written approval prior to
such successor's appointment.
7.4 Merger of Owner Trustee. Any corporation into which the Owner
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from or surviving 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 7.3 hereof, be the Owner
Trustee under this Trust Agreement without any further act.
7.5 Status of Successor Owner Trustee. A successor trustee shall have
the same duties, powers and discretion conferred herein on the Owner Trustee. A
successor trustee may accept the assets of the Trust Estate delivered to him or
it by his or its predecessor trustee as constituting the entire assets of the
Trust Estate and shall not be required to take any action to determine what
constitutes the Trust Estate or to obtain possession of any assets thereof or to
investigate any acts, omissions or misconduct of his or its predecessor trustee.
7.6 Appointment of Co-Trustees and Separate Trustees.
(a) At any time or times for the purpose of meeting the legal
requirements of any jurisdiction in which any part of the Trust Estate may at
the time be located, the Owner Trustee shall have power to appoint one or more
solvent Persons to act as co-trustee of all or any part of the Trust Estate or
to act as separate trustee or trustees of any property constituting a part
thereof, in either case with such powers as may be provided in the instrument of
appointment, and to vest in such person or persons any property, title, right or
power deemed necessary or desirable, subject to the remaining provisions of this
Section 7.6.
(b) Every separate trustee or co-trustee shall, to the extent
permitted by law, be appointed subject to the following terms:
(1) The rights, powers, duties and obligations conferred or
imposed upon any such separate trustee or co-trustee shall not be
greater than those conferred or imposed upon the Owner Trustee, and
such rights and powers shall be exercisable only jointly with the
Owner Trustee, except to the extent that, under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Owner Trustee shall be incompetent or unqualified to perform such
act or acts,
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in which event such rights and powers shall be exercised by such
separate trustee or co-trustee subject to the provisions of subsection
(b)(4) of this Section 7.6.
(2) The Owner Trustee may at any time, by an instrument in
writing executed by it, accept the resignation of or remove any
separate trustee or co-trustee appointed under this section.
(3) No trustee or co-trustee under this Trust Agreement shall be
liable by reason of any act or omission of any other trustee or
co-trustee under this Trust Agreement, provided that, to the extent
any individual trustee is itself so liable pursuant to the terms of
this Trust Agreement, the Owner Trustee shall be answerable and
accountable to the Beneficiary for any acts or failures to act of any
such individual trustee appointed hereunder who is an officer or
employee of the Owner Trustee, but such individual trustee shall be
answerable and accountable only for the acts or failures to act of the
individual trustee alone.
(4) No power given to such separate trustee or co-trustee shall
be separately exercised hereunder by such separate trustee or
co-trustee except with the consent in writing of the Owner Trustee,
anything herein contained to the contrary notwithstanding.
(5) Such separate trustee or co-trustee shall meet the
requirements of Section 7.3 with respect to a successor trustee.
(c) Upon the acceptance in writing of such appointment by any such
separate trustee or co-trustee, it shall be vested with the Trust Estate to
which its appointment relates as specified in the instrument of appointment,
subject to all the terms of this Trust Agreement.
ARTICLE VIII
TRANSFER OF THE BENEFICIARY'S INTEREST
8.1 Restrictions on Transfer or Assignment. The Beneficiary shall not
assign, convey or otherwise transfer any of its right, title or interest in the
Trust Estate or in any of the Participation Agreement, the Mortgage, the Lease,
the Guaranty and Subordination Agreement and the Junior Mortgage (herein
collectively called the "operative Documents" and each,
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individually, an "Operative Document") to which it is a party; provided,
however, that subject to this Section 8.1 the Beneficiary may transfer to one or
more other persons or entities (hereinafter in this Article VIII referred to as
the "Transferees") all, or any part, of its right, title and interest as such
Beneficiary in and to this Trust Agreement, the Trust Estate or such Operative
Documents, subject to the condition that (i) each Transferee is a "citizen of
the United States" as defined in 49 U.S.C. (S) 40102(a)(15), and has the
requisite power and authority to enter into and carry out the transactions
contemplated hereby, (ii) such transfer is consented to by each other
Beneficiary, if any, (iii) the number of Beneficiaries shall not exceed five at
any time, (iv) the Transferee enters into an agreement or agreements, in form
and substance satisfactory to the Owner Trustee, the Loan Participant, the
other Beneficiaries, if any, and the holders of more than 50% in aggregate
unpaid principal amount of the Note then outstanding whereby the Transferee
confirms that it shall be deemed a party to this Trust Agreement and a party to
the Participation Agreement and agrees to be bound by all of the terms of, and
to undertake all of the obligations of the transferor Beneficiary contained in
this Trust Agreement and the Participation Agreement and to assume such
transferor Beneficiary's obligations under this Trust Agreement and the
Participation Agreement to the extent and as hereinafter provided and, if not
otherwise amenable to service of process in a state of the United states,
irrevocably appoints CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, as its agent for service of process in connection with the Participation
Agreement and this Agreement, (v) such transfer does not violate any provision
of the Federal Aviation Act of 1958, as amended and recodified in Subtitle VII
of Title 49 of the United States Code, or create a relationship which would be
in violation thereof or violate any provisions of the Securities Act of 1933, as
amended, and (vi) such Transferee is either a corporation which is a member of
the same Affiliated Group (as defined in section 1504 of the United States
Internal Revenue Code of 1954, as amended) as the Beneficiary and which is
directly or indirectly wholly owned by the Beneficiary's ultimate parent;
provided that the Beneficiary shall not be released from any of its obligations
under the Operative Documents in the case of this clause unless the transferee
is the parent or ultimate parent of the Beneficiary; or (x) a bank, trust
company or insurance company which is organized and doing business in the United
States and has a combined capital and surplus of at least $125,000,000; or (y) a
financial corporation which (1) is organized and doing business in the United
States and (2) has a combined capital and surplus of at least $50,000,000; or
(z) any corporation which is a member of the same Affiliated Group (as defined
above) as the bank, trust company, insurance company or other financial
corporation to which reference is made in the
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preceding clause (x) or (y) if such bank, trust company, insurance company or
other financial corporation guarantees all obligations assumed by such
transferee corporation in connection with such transfer. upon any such transfer
by the Beneficiary as above provided, the transferee shall be deemed a
"Beneficiary" for all purposes hereof to the extent of the interest transferred
to it and of any Operative Document, and shall to such extent be deemed to have
made the investment in the Trust Estate previously made by the Beneficiary, and
each reference in any Operative Document to the Beneficiary shall thereafter be
deemed to include the Transferee. Except as provided above, the Beneficiary
making such a transfer shall not have any obligation or liability with respect
to the transferred interest, to the extent any such obligation or liability
arises after such transfer, but shall continue to be liable to the extent that
any such obligation or liability arose on or prior to such transfer.
If at any time there shall be more than one Beneficiary, each
reference herein or in any Operative Document to the Beneficiary shall
thereafter be deemed to mean each Beneficiary. The relative rights of the
Beneficiaries as regards each other shall be set forth in an instrument executed
at the time of a transfer by the parties to such transfer and the owner Trustee,
a copy of which shall be furnished to the Loan Participant and the Lessee.
8.2 Notice of Transfer. If the Beneficiary shall propose to transfer
or assign its interests hereunder with respect to the Trust, it shall give
written notice to the Owner Trustee, the Loan Participant and the Lessee at
least 30 days prior thereto specifying the name and address of the proposed
transferee or assignee, and enclosing the agreement or agreements referred to in
Section 8.1 hereof.
ARTICLE IX
TERMINATION OF AND AMENDMENT TO TRUST
9.1 Termination. This Trust Agreement and the trusts created hereby
shall terminate and the Trust Estate shall, subject to the Restructure
Agreement, the Participation Agreement, the Mortgage, the Junior Mortgage and
Section 4.3 hereof, be distributed to the Beneficiary, and this Trust Agreement
shall be of no further force or effect, upon the earlier of (i) 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
moneys or other property or proceeds constituting part of the Trust Estate in
accordance with the terms of Section 4.3 hereof and (ii) 21 years less one day
after the death of the last survivor of all
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the descendants living on the date of this Trust Agreement of the members, as of
such date, of the Boards of Directors of the Owner Trustee and the Beneficiary,
but if any rights, privileges or options hereunder shall be or become valid
under applicable law for a period subsequent to the 21st anniversary of the
death of such last survivor (or without limiting the generality of the
foregoing, if legislation shall become effective providing for the validity or
permitting the effective grant of such rights, privileges and options for a
period in gross exceeding the period for which such rights, privileges and
options are hereinabove stated to extend and be valid), then such rights,
privileges or options shall not terminate as aforesaid but shall continue in
effect, but only if such non-termination and continuation shall then be valid
under applicable law, until such time as the same shall, under applicable law,
cease to be valid.
9.2 Termination at Option of Beneficiary. This Trust Agreement and
the trusts created hereby shall terminate and the Trust Estate shall be
distributed to the Beneficiary, and this Agreement shall be of no further force
and effect, upon the election of the Beneficiary, made by giving notice to the
Owner Trustee, if such notice shall be accompanied by a written agreement of the
Beneficiary assuming all the obligations of the Owner Trustee under or
contemplated by the Operative Documents and all other obligations of the Owner
Trustee incurred by it as trustee hereunder; provided, however, that no such
election shall be effective until the lien of the Mortgage and the Junior
Mortgage on the Trust Estate has been released and until payment in full of the
principal of and interest on the Note. Such written agreement shall be
satisfactory in form and substance to the Owner Trustee and shall release the
Owner Trustee from all further obligations of the Owner Trustee hereunder and
under the agreements mentioned in the preceding sentence.
9.3 Distribution of the Trust Estate Upon Termination. Upon any
termination of the Trust pursuant to the provisions of Section 9.1 hereof, the
Owner Trustee shall transfer title of the Trust Estate to the Beneficiary free
and clear of any Lessor Liens attributable to the Owner Trustee but otherwise
without recourse or warranty of any kind, and, upon making such transfer and
accounting for all funds which have come into its hands, the Owner Trustee shall
be discharged and free of any further liability hereunder with respect to the
Trust, except such liability, not payable out of the assets of the Trust Estate,
as may be shown by such accounting then to exist in accordance with the other
provisions of this Trust Agreement.
No later than the effective date of termination of the Trust, the
Owner Trustee shall execute and deliver to the Beneficiary or to any person
designated in writing by the
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Beneficiary a ▇▇▇▇ of sale (together with such number of additional counterparts
necessary for recording) and other written instrument or instruments all without
recourse or warranty of any kind, but otherwise in form and content reasonably
requested by the Beneficiary prior to such termination, evidencing the transfer
of title to the Trust Estate to the Beneficiary or to any such person.
9.4 Supplements and Amendments to This Trust Agreement and Other
Documents. At any time and from time to time (i) the Owner Trustee, together
with the Beneficiary, may execute and deliver an amendment or a supplement to
this Trust Agreement to the extent, but only to the extent, that it relates to
the Trust for the purpose of adding provisions to or changing or eliminating
provisions of this Trust Agreement and the Trust, provided, however, that no
such amendment or supplement shall be without the prior written consent of the
Loan Participant so long as the Mortgage is outstanding or make any change with
respect to the Trust which is prohibited by the Mortgage or the Lease, or any
other document referred to herein and (ii) upon the written request of the
Beneficiary, the Owner Trustee shall enter into such written amendment of or
supplement to any of the other documents referred to herein or therein as the
parties thereto may agree to (to the extent such agreement is required) and as
may be specified in such request, or execute and deliver such written waiver or
modification of the terms of any such other document as may be specified in such
request.
If the Owner Trustee reasonably believes that any document required to
be executed pursuant to the terms of this Section increases the duties or
liabilities of, or adversely affects any right, immunity or indemnity in favor
of, the Owner Trustee under this Trust Agreement, the Owner Trustee may decline
to execute such document until provision shall have been made with respect
thereto which is reasonably satisfactory to the Owner Trustee.
ARTICLE X
COMPENSATION, COSTS AND EXPENSES OF OWNER TRUSTEE
10.1 Compensation, Costs and Expenses of Owner Trustee. The Owner
Trustee shall be reimbursed by the Beneficiary for all transaction costs
incurred by or payable to the Owner Trustee. Thereafter the Owner Trustee or its
successor shall receive as compensation for its ordinary services hereunder
such fees as may heretofore and from time to time hereafter be agreed upon
between the Beneficiary and the Owner Trustee or its successor and shall be
reimbursed for its ordinary costs and expenses hereunder. The Owner Trustee
agrees that, except to the
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extent provided herein or in the Lease or the Participation Agreement, it shall
have no right against the Beneficiary, the Loan Participant, the Lessee, or the
Trust Estate for any fee or compensation for services hereunder or for payment
or reimbursement or any of its expenses.
ARTICLE XI
MISCELLANEOUS
11.1 Entire Agreement. This Trust Agreement embodies the entire
agreement and understanding among the Beneficiary and the Owner Trustee relating
to the subject matter hereof and of the Trust created pursuant hereto and upon
execution and delivery of this Trust Agreement will supersede and restate all
prior agreements and understandings relating to the Trust created thereby.
11.2 Notices. Unless otherwise expressly specified or permitted by the
terms hereof, all notices shall be in writing and delivered by hand, by
telefacsimile or mailed by first class mail, postage prepaid, (i) if to the
Owner Trustee, addressed to it at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇, attention: Corporate
Trust Administration, and (ii) if to the Beneficiary, addressed to it at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇,
attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, or to such other address as either party may
have set forth in a written notice to the other. Whenever any notice in writing
is required to be given by the Owner Trustee or the Beneficiary, such notice
shall be deemed given and such requirement satisfied three Business Days after
such notice is deposited with the United States Postal Service, first class
mail, postage, prepaid, addressed as provided above.
All communications and notices hereunder may be given in person, by
first class mail, postage prepaid, or by telephone, telegram or telecopier,
charges prepaid, promptly confirmed by first class mail, postage prepaid.
11.3 Situs of Trust; Governing Law. This Trust Agreement has been, and
the Trust created hereby is to be, accepted by the Owner Trustee and will be
located and administered in the State of Delaware and the validity, construction
and all rights under this Trust Agreement and Trust shall be governed by, and
construed in accordance with, the laws of such State, including all matters of
construction, validity and performance.
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11.4 Non-Segregation of Monies. All monies received by the Owner
Trustee under or pursuant to any provisions of this Trust Agreement shall
constitute trust funds for the purpose for which they were paid or are held, but
need not be segregated in any manner from any other monies except to the extent
required by law and may be deposited by the Owner Trustee under such conditions
as may be prescribed or permitted by law for trust funds, and the Owner Trustee
shall not be liable for any interest thereon.
11.5 Benefit of Parties, Successors and Assigns. This instrument shall
be binding upon, inure solely to the benefit of, the parties hereto, the Loan
Participant, the Lessee and their respective heirs, legal representatives,
successors and assigns; provided, however, that any third party having a claim
against either the Owner Trustee or the Trust Estate for which indemnification
is provided in Section 3.2 hereof may enforce such claim directly against the
Beneficiary, subject to the limitations contained herein.
11.6 [RESERVED].
11.7 Severability of Invalid Provisions. Any provision of this Trust
Agreement which is prohibited or unenforceable in any jurisdiction as to the
Trust and such jurisdiction, shall 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.
To the extent permitted by applicable law, the parties hereto hereby waive with
respect to the Trust any provision of law which renders any provision hereof
prohibited or unenforceable in any respect.
11.8 Effect of Waiver. Waiver of the breach of any provision hereunder
shall not be deemed a waiver of any prior or subsequent breach of the same or
any other provision hereof.
11.9 Remedies Not Exclusive. Pursuit of any remedy with respect to the
Trust shall not e deemed the waiver of any other remedy hereunder or at law or
in equity.
11.10 References to Agreements and Instruments. Except as otherwise
indicated, all the agreements and instruments herein defined shall mean such
agreements or instruments as the same may from time to time be supplemented or
amended or the terms thereof waived or modified to the extent permitted by, and
in accordance with, the terms hereof and thereof.
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11.11 Headings and Table of Contents. The division of this Trust
Agreement into articles and sections, the provision of a table of contents and
the insertion of headings are for the convenience of reference only and shall
not affect the construction or interpretation of the Trust Agreement.
11.12 Construction of References. Unless the context otherwise
requires, all references in this instrument to designated Articles, Sections and
other subdivisions are to designated Articles, Sections and other subdivisions
of this instrument, and the words herein, hereof and hereunder and other words
of similar import refer to this instrument as a whole and not to any particular
Article, Section or other subdivision.
11.13 Counterpart Execution and Dating. This Trust Agreement and any
amendment or supplement to this Trust Agreement may be executed in any number of
counterparts and by the different parties hereto and thereto on separate
counterparts, each of which, when so executed and delivered, shall be an
original, but all of such counterparts shall together constitute but one and the
same instrument. Fully executed sets of counterparts shall be delivered to, and
retained by, the parties hereto. Although this Trust Agreement is dated as of
the date first above written for convenience and for purposes of reference, the
actual dates of execution hereof by the parties hereto are respectively the
dates set forth opposite the signatures hereto, and this Trust Agreement shall
be effective on the latest of such dates.
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IN WITNESS WHEREOF, the Owner Trustee and the Beneficiary have each
caused this Second Amended and Restated Trust Agreement to be duly executed by
their respective officers thereunto duly authorized, all as of the date first
set forth above.
747 INC.
Date: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: SECRETARY
Date: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ INC.
Date: By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
WILMINGTON TRUST COMPANY, as Owner
Trustee
Date: By: /s/ ▇▇▇▇▇▇ ▇. Lavkans
------------------------------
Name: ▇▇▇▇▇▇ ▇. Lavkans
Title: Vice President
- 24 -
