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AMENDED AND RESTATED
TRUST AGREEMENT
[NW 1997 H]
Dated as of December 29, 1997
between
NATIONAL CITY LEASING CORPORATION,
Owner Participant
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Owner Trustee
One British Aerospace Avro 146-RJ85A
Aircraft
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AMENDED AND RESTATED
TRUST AGREEMENT
[NW 1997 H]
This AMENDED AND RESTATED TRUST AGREEMENT [NW 1997 H] dated as of
December 29, 1997 between NATIONAL CITY LEASING CORPORATION, a Kentucky
corporation (the "Owner Participant"), and FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association (in its individual capacity, "FSB")
and otherwise not in its individual capacity but solely as trustee hereunder
(herein in such capacity with its permitted successors and assigns called the
"Owner Trustee"), is an amendment and restatement in its entirety of the Trust
Agreement [NW 1997 H], dated as of September 25, 1997, between Northwest
Airlines, Inc. (the "Original Trustor") and FSB, in its individual capacity and
as Owner Trustee (said Trust Agreement, prior to being amended and restated
hereby, the "Original Trust Agreement", and as so amended and restated in its
entirety hereby, and as hereafter from time to time supplemented or amended,
this or the "Trust Agreement");
WHEREAS, pursuant to the Original Trust Agreement the Original
Trustor created a trust for, among other things, the purpose of borrowing for
the Pass Through Trustee and issuing Secured Certificates in respect of such
borrowing, the proceeds of which issuance were initially held by the Indenture
Trustee on behalf of the Owner Trustee in the Collateral Account and released,
subject to the proviso to Section 1(d) of the Original Participation Agreement,
on the Delivery Date in order to finance a portion of Lessor's Cost of the
Aircraft, to acquire the Aircraft from Lessee on the Delivery Date, to lease the
Aircraft to Lessee on the Delivery Date and to receive the benefits herein
provided;
WHEREAS, concurrently with the execution and delivery of this Trust
Agreement, the Original Trustor is transferring the Beneficial Interest to the
Owner Participant pursuant to the Assignment and Assumption Agreement;
WHEREAS, the trust created under the Original Trust Agreement shall
continue and shall not be deemed liquidated or terminated by this Trust
Agreement; and
WHEREAS, the Owner Participant and FSB now desire to amend and
restate the Original Trust Agreement in its entirety on the terms and conditions
herein provided;
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein, FSB and the Owner Participant hereby amend and
restate the Original Trust Agreement in its entirety and agree as follows:
W I T N E S S E T H:
ARTICLE I
DEFINITIONS AND TERMS
SECTION 1.01. Certain Definitions. Unless the context shall
otherwise 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 ascribed to such term in the
Trust Indenture.
"Indenture Event of Default" has the meaning which the term "Event
of Default" has in the Trust Indenture.
"Lease" means that certain Lease Agreement [NW 1997 H], dated as of
the date hereof, between the Owner Trustee and Lessee, as said Lease Agreement
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 of this
Trust Agreement. The term "Lease" shall also include each Lease Supplement from
time to time entered into pursuant to the terms of the Lease.
"Lease Event of Default" has the meaning which the term "Event of
Default" has in the Lease.
"Lessee" means Northwest Airlines, Inc., a Minnesota corporation,
and its permitted successors and assigns.
"Owner Participant" means the Owner Participant and each Subsequent
Owner Participant to the extent that the same shall, at the relevant time, have
an Ownership Interest.
"Ownership Interest" means, in the case of each Owner Participant,
the percentage of its undivided beneficial interest in the Trust Estate created
by this Trust Agreement, which percentage shall be 100%.
"Participation Agreement" has the meaning ascribed to such term in
the Lease.
"Replacement Airframe" has the meaning ascribed to such term in the
Trust Indenture.
"Replacement Engine" has the meaning ascribed to such term in the
Trust Indenture.
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"Subsequent Owner Participant" means any corporation to which the
Owner Participant or any transferee from the Owner Participant or any Subsequent
Owner Participant shall have transferred at any time after the Delivery Date all
of the undivided right, title and interest originally held by the Owner
Participant in this Trust Agreement, the Trust Estate and the Participation
Agreement, to the extent permitted by Section 8.01 of this Trust Agreement and
Section 8 of the Participation Agreement, provided that any such transfer: (i)
shall be effected by a written agreement, in form and substance reasonably
satisfactory to the Owner Trustee in its individual capacity, among such
transferee, its transferor and the Owner Trustee, which shall provide that such
transferee thereby becomes a party to, and beneficiary of, this Trust Agreement
and an Owner Participant for all purposes hereof and that such transferee
assumes all of the obligations of its transferor under this Trust Agreement; and
(ii) so long as the Lease shall be in effect or any Secured Certificates remain
unpaid, such transferee and its transferor shall have complied with all of the
terms of Section 8(n) of the Participation Agreement.
"Trust Estate" means all estate, right, title and interest of the
Owner Trustee in and to the Aircraft, the Lease, any Lease Supplement, the
Purchase Agreement, the Purchase Agreement Assignment, the Residual Agreement,
the ▇▇▇▇ of Sale and the FAA ▇▇▇▇ of Sale, including, without limitation, all
amounts of Basic Rent and Supplemental Rent including without limitation
insurance proceeds (other than insurance proceeds payable to or for the benefit
of the Owner Trustee, for its own account or in its individual capacity, the
Owner Participant, the Loan Participants or the Indenture Trustee) and
requisition, indemnity or other payments of any kind for or with respect to the
Aircraft (except amounts owing to the Owner Participant, to the Indenture
Trustee, to the Owner Trustee, in its individual capacity, or to the Loan
Participants or any other holder of a Secured Certificate, or to any of their
respective directors, officers, employees, servants and agents, pursuant to
Section 7 of the Participation Agreement). Notwithstanding the foregoing, "Trust
Estate" shall not include any Excluded Payments.
"Trust Indenture Estate" has the meaning ascribed to such term in
the Trust Indenture.
"Trust Office" shall mean the principal corporate trust office of
the Owner Trustee at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Department, or the principal corporate trust office
of any successor Owner Trustee.
"Trust Supplement" means a supplement to the Trust Indenture and to
this Trust Agreement in substantially the form of Exhibit A to the Trust
Indenture which shall particularly describe the Aircraft, and any Replacement
Airframe and Replacement Engine included in the property of the Owner Trustee
covered by this Trust Agreement.
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ARTICLE II
AUTHORITY TO EXECUTE CERTAIN OPERATIVE DOCUMENTS;
DECLARATION OF TRUST
SECTION 2.01. Authority to Execute Documents. The Owner Participant
hereby authorizes and directs the Owner Trustee to execute and deliver the
Operative Documents and any other agreements, instruments or documents to which
the Owner Trustee is a party in the respective forms thereof in which delivered
from time to time by the Owner Participant to the Owner Trustee for execution
and delivery and, subject to the terms hereof, to perform its duties and, upon
instructions from the Owner Participant, exercise its rights under said
Operative Documents in accordance with the terms thereof.
SECTION 2.02. Declaration of Trust. The Owner Trustee hereby
declares that it shall continue to hold the Trust Estate upon the trusts
hereinafter set forth for the use and benefit of the Owner Participant, subject,
however, to the provisions of and the Lien created by the Trust Indenture and to
the provisions of the Lease.
ARTICLE III
ACCEPTANCE AND DELIVERY OF AIRCRAFT
SECTION 3.01. Acceptance of Aircraft. The Owner Participant hereby
authorizes and directs the Owner Trustee to, and the Owner Trustee agrees for
the benefit of the Owner Participant that it will, on the Delivery Date, subject
to due compliance with the terms of Section 3.02 hereof:
(a) purchase the Aircraft pursuant to the Participation Agreement
and the ▇▇▇▇ of Sale;
(b) accept from Lessee the delivery of the ▇▇▇▇ of Sale and the FAA
▇▇▇▇ of Sale;
(c) cause the Aircraft to be leased to Lessee under the Lease, and
in furtherance thereof execute and deliver a Lease Supplement covering the
Aircraft;
(d) execute and deliver the Trust Supplement covering the Aircraft;
(e) [Intentionally Omitted];
(f) execute and deliver the financing statements referred to in
Section 5(a)(vi) of the Participation Agreement, together with all other
agreements, documents and instruments referred to in Section 5 of the
Participation Agreement to which the Owner Trustee is a party; and
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(g) effect the registration of the Aircraft in the name of the Owner
Trustee by filing or causing to be filed with the FAA: (i) the FAA ▇▇▇▇ of
Sale; (ii) an application for registration of the Aircraft in the name of
the Owner Trustee (including without limitation an affidavit from the
Owner Trustee in compliance with the provisions of 14 C.F.R. ss.
47.7(c)(2)(ii) (1979)); and (iii) the Trust Agreement.
SECTION 3.02. Conditions Precedent. The right and obligation of the
Owner Trustee to take the action required by Section 3.01 hereof with respect to
the Aircraft shall be subject to the following conditions precedent:
(a) the Owner Participant shall have made the full amount of its
Commitment set forth in Schedule II of the Participation Agreement
available to the Owner Trustee, in immediately available funds, in
accordance with Section 1 of the Participation Agreement; and
(b) the terms and conditions of Section 5 of the Participation
Agreement, insofar as they relate to the Aircraft, shall have been
complied with in a manner satisfactory to the Owner Participant and the
Owner Trustee.
SECTION 3.03. Authorization in Respect of a Termination of the Lease
and Assumption of the Secured Certificates. The Owner Participant hereby
authorizes and directs the Owner Trustee to, and the Owner Trustee agrees for
the benefit of the Owner Participant that it will, take the actions specified to
be taken by the Owner Trustee in Section 8(x) of the Participation Agreement
upon Lessee's purchasing the Aircraft pursuant to Section 19(d) of the Lease and
upon Lessee's assuming the indebtedness evidenced by the Secured Certificates in
accordance with the provisions of such Section 8(x).
SECTION 3.04. Authorization in Respect of a Replacement Airframe or
Replacement Engines. The Owner Participant hereby authorizes and directs the
Owner Trustee to, and the Owner Trustee agrees for the benefit of the Owner
Participant that it will, in the event of a Replacement Airframe and Replacement
Engines, if any, being substituted pursuant to Section 10(a) of the Lease, or a
Replacement Engine being substituted pursuant to Section 10(b) of the Lease,
subject to due compliance with the terms of Section 10(a) or 10(b) of the Lease,
as the case may be:
(a) to the extent not previously accomplished by a prior
authorization, authorize a representative or representatives of the Owner
Trustee (who shall be an employee or employees of Lessee) to accept
delivery of the Replacement Airframe and Replacement Engines, if any, or
the Replacement Engines;
(b) accept from Lessee or other vendor of the Replacement Airframe
and Replacement Engines, if any, or the Replacement Engine a ▇▇▇▇ of sale
or bills of sale (if tendered), and the invoice, if any, with respect to
the Replacement Airframe and Replacement Engines, if any, or the
Replacement Engine being furnished pursuant to Section 10(a) or (b) of the
Lease;
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(c) in the case of a Replacement Airframe, make application to the
Federal Aviation Administration for the registration in the name of the
Owner Trustee of the Aircraft of which such Replacement Airframe is a
part;
(d) execute and deliver a Lease Supplement and a Trust Supplement
covering (i) the Aircraft of which such Replacement Airframe is part or
(ii) such Replacement Engine, as the case may be;
(e) transfer its interest in (without recourse except as to
obligations in respect of Lessor Liens, including for this purpose Liens
that would be Lessor Liens but for the proviso in the definition of Lessor
Liens) and to the Airframe and Engines (if any) or the Engine being
replaced to Lessee;
(f) request in writing that the Indenture Trustee execute and
deliver to Lessee appropriate instruments to release the Airframe and
Engines or engines (if any) or the Engine or engine being replaced from
the lien created under the Trust Indenture and release the Purchase
Agreement and the Purchase Agreement Assignment (solely with respect to
such replaced Airframe and Engines, if any, or Engine) from the assignment
and pledge under the Trust Indenture; and
(g) upon instructions from the Owner Participant, take such further
action as may be contemplated by clauses (A) and (B) of the third
paragraph of Section 10(a) of the Lease or clauses (ii) and (iii) of
Section 10(b) of the Lease, as the case may be.
SECTION 3.05. Trust Agreement Remaining in Full Force and Effect. In
the event of the substitution of a Replacement Airframe for the Airframe or the
substitution of a Replacement Engine for any Engine or engine, all provisions of
this Trust 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 or engine as the Airframe or Engine being replaced but for the
Event of Loss with respect to such Airframe or Engine.
SECTION 3.06. Authorization in Respect of a Return of an Engine. The
Owner Participant hereby authorizes and directs the Owner Trustee to, and the
Owner Trustee agrees for the benefit of the Owner Participant that it will, in
the event of an engine being transferred to the Owner Trustee pursuant to
Section 5(b) of the Lease, subject to due compliance with the terms of such
Section 5(b):
(a) accept from Lessee the ▇▇▇▇ of sale with respect to such engine
contemplated by such Section 5(b) (if tendered);
(b) transfer its interest in (without recourse except as to
obligations in respect of Lessor Liens, including for this purpose Liens
that would be Lessor Liens but for the proviso in the definition of Lessor
Liens) and to an Engine to Lessee as contemplated by such Section 5(b);
and
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(c) request in writing that the Indenture Trustee execute and
deliver to Lessee appropriate instruments to release the Engine being
transferred to Lessee pursuant to such Section 5(b) from the lien of the
Trust Indenture and to release the Purchase Agreement and the Purchase
Agreement Assignment (solely with respect to such Engine) from the
assignment and pledge under the Trust Indenture.
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE TRUST ESTATE
SECTION 4.01. Distribution of Payments. (a) Payments to Indenture
Trustee. Until the Trust Indenture shall have been discharged pursuant to
Section 10.01 thereof, all Basic Rent, Supplemental Rent, insurance proceeds and
requisition or other payments of any kind included in the Trust Estate (other
than Excluded Payments) payable to the Owner Trustee shall be payable directly
to the Indenture Trustee (and if any of the same are received by the Owner
Trustee shall upon receipt be paid over to the Indenture Trustee without
deduction, set-off or adjustment of any kind) for distribution in accordance
with the provisions of Article III of the Trust Indenture.
(b) Payments to Owner Trustee; Other Parties. After the Trust
Indenture shall have been discharged pursuant to Section 10.01 thereof, any
payment of the type referred to in Section 4.01(a) hereof (other than Excluded
Payments) received by the Owner Trustee, any payments received from the
Indenture Trustee other than as specified in Section 4.01(d) hereof and any
other amount received as part of the Trust Estate and for the application or
distribution of which no provision is made herein, shall be distributed
forthwith upon receipt by the Owner Trustee in the following order of priority:
first, so much of such payment as shall be required to reimburse the Owner
Trustee for any expenses not otherwise reimbursed as to which the Owner Trustee
is entitled to be so reimbursed pursuant to the provisions hereof shall be
retained by the Owner Trustee; second, so much of the remainder for which
provision as to the application thereof is contained in the Lease or any of the
other Operative Documents shall be applied and distributed in accordance with
the terms of the Lease or such other Operative Document; and third, the balance,
if any, shall be paid to the Owner Participant.
(c) Certain Distributions to Owner Participant. All amounts from
time to time distributable by the Indenture Trustee to the Owner Participant
pursuant to the Trust Indenture shall, if paid to the Owner Trustee, be
distributed by the Owner Trustee to the Owner Participant in accordance with the
provisions of Article III of the Trust Indenture.
(d) Excluded Payments. Any Excluded Payments received by the Owner
Trustee shall be paid by the Owner Trustee to the Person to whom such Excluded
Payments are payable under the provisions of the Participation Agreement, the
Tax Indemnity Agreement or the Lease.
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SECTION 4.02. Method of Payments. The Owner Trustee shall make
distributions or cause distributions to be made to the Owner Participant
pursuant to this Article IV by transferring by wire transfer the amount to be
distributed to such account or accounts of the Owner Participant as the Owner
Participant may designate from time to time in writing to the Owner Trustee.
Notwithstanding the foregoing, the Owner Trustee will, if so requested by the
Owner Participant in writing, pay any or all amounts payable to the Owner
Participant pursuant to this Article IV either (i) by crediting such amount or
amounts to an account or accounts maintained by the Owner Participant with the
Owner Trustee in its individual capacity in immediately available funds, (ii) by
payment at the Trust Office of the Owner Trustee, in immediately available
funds, or (iii) by mailing an official bank check or checks in such amount or
amounts payable to the Owner Participant at such address as the Owner
Participant shall have designated in writing to the Owner Trustee.
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
SECTION 5.01. Notice of Event of Default. If the Owner Trustee shall
have knowledge of a Lease Event of Default or an Indenture Event of Default (or
an event which with the passage of time or the giving of notice or both would
constitute a Lease Event of Default or an Indenture Event of Default) the Owner
Trustee shall give to the Owner Participant prompt telephonic or telecopy notice
thereof followed by prompt confirmation thereof by certified mail, postage
prepaid, provided that (i) in the case of an event which with the passage of
time would constitute an Indenture Event of Default referred to in paragraph (c)
of Section 4.02 of the Trust Indenture, such notice shall in no event be
furnished later than ten (10) days after the Owner Trustee shall first have
knowledge of such event and (ii) in the case of a misrepresentation by the Owner
Trustee which with the passage of time would constitute an Indenture Event of
Default referred to in paragraph (d) of Section 4.02 of the Trust Indenture,
such notice shall in no event be furnished later than ten (10) days after the
Owner Trustee shall first have knowledge of such event. Subject to the terms of
Section 5.03 hereof, the Owner Trustee shall take such action or shall refrain
from taking such action, not inconsistent with the provisions of the Trust
Indenture, with respect to such Lease Event of Default, Indenture Event of
Default or other event as the Owner Trustee shall be directed in writing by the
Owner Participant. If the Owner Trustee shall not have received instructions as
above provided within twenty (20) days after the mailing of such notice to the
Owner Participant, the Owner Trustee until instructed otherwise in accordance
with the preceding sentence may, but shall be under no duty to, take or refrain
from taking such action with respect to such Lease Event of Default, Indenture
Event of Default or other event, not inconsistent with the provisions of the
Trust Indenture, as it shall deem advisable in the best interests of the Owner
Participant. For all purposes of this Trust Agreement, the Lease and the other
Operative Documents, in the absence of actual knowledge by an officer of FSB in
the Corporate Trust Department, the Owner Trustee shall not be deemed to have
knowledge of a Lease Event of Default, an Indenture Event of Default or other
event referred to in this Section 5.01 unless notified in writing by the
Indenture Trustee, the Owner Participant or Lessee.
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SECTION 5.02. Action Upon Instructions. Subject to the terms of
Sections 5.01 and 5.03 hereof, upon the written instructions at any time and
from time to time of the Owner Participant, the Owner Trustee will take such of
the following actions, not inconsistent with the provisions of the Trust
Indenture, as may be specified in such instructions: (i) give such notice or
direction or exercise such right, remedy or power hereunder or under any of the
Operative Documents to which the Owner Trustee is a party or in respect of all
or any part of the Trust Estate as shall be specified in such instructions
(including entering into agreements referred to in clause (i) of the definition
of "Subsequent Owner Participant"); (ii) take such action to preserve or protect
the Trust Estate (including the discharge of Liens) as may be specified in such
instructions; (iii) approve as satisfactory to it all matters required by the
terms of the Lease or the other Operative Documents to be satisfactory to the
Owner Trustee, it being understood that without written instructions of the
Owner Participant, the Owner Trustee shall not approve any such matter as
satisfactory to it (it being understood that the provisions of Sections 3.03,
3.04 and 3.06 hereof do not constitute instructions by the Owner Participant for
the Owner Trustee to approve of or consent to the matters to be approved of or
consented to by the Owner Trustee in the sections of the Lease referred to in
Sections 3.03, 3.04 or 3.06 hereof); and (iv) subject to the rights of Lessee
under the Operative Documents, after the expiration or earlier termination of
the Lease, deliver the Aircraft to the Owner Participant in accordance with such
instructions, convey all of the Owner Trustee's right, title and interest in and
to the Aircraft for such amount, on such terms and to such purchaser or
purchasers as shall be designated in such instructions, or net lease the
Aircraft on such terms and to such lessee or lessees as shall be designated in
such instructions.
SECTION 5.03. Indemnification. The Owner Trustee shall not be
required to take any action under Section 5.01 (other than the giving of the
notices referred to therein) or 5.02 hereof unless the Owner Trustee shall have
been indemnified by the Owner Participant, in manner and form satisfactory to
the Owner Trustee, against any liability, cost or expense (including reasonable
counsel fees and disbursements) which may be incurred in connection therewith;
and, if the Owner Participant shall have directed the Owner Trustee to take any
such action or refrain from taking any action, the Owner Participant agrees to
furnish such indemnity as shall be required and, in addition, to the extent not
otherwise paid pursuant to the provisions of the Lease or the Participation
Agreement, to pay the reasonable compensation of the Owner Trustee for the
services performed or to be performed by it pursuant to such direction and any
fees and disbursements of counsel or agents employed by the Owner Trustee in
connection therewith. The Owner Trustee shall not be required to take any action
under Section 5.01 or 5.02 hereof if the Owner Trustee shall reasonably
determine, or shall have been advised by counsel, that such action is contrary
to the terms of any of the Operative Documents to which the Owner Trustee is a
party, or is otherwise contrary to law.
SECTION 5.04. No Duties Except as Specified in Trust Agreement or
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
control, use, sell, dispose of or otherwise deal with the Aircraft or any other
part of the Trust Estate, or to otherwise take or refrain from taking any action
under, or in connection with any of the Operative Documents to which the Owner
Trustee is a party, except as expressly required by the terms of any of the
Operative Documents to which the Owner Trustee is a party, or (to the
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extent not inconsistent with the provisions of the Trust Indenture) as expressly
provided by the terms hereof or in written instructions from the Owner
Participant received pursuant to the terms of Section 5.01 or 5.02, and no
implied duties or obligations shall be read into this Trust Agreement against
the Owner Trustee. FSB agrees that it will, in its individual capacity and at
its own cost or expense (but without any right of indemnity in respect of any
such cost or expense under Section 7.01 hereof) promptly take such action as may
be necessary to duly discharge and satisfy in full all Lessor Liens which it is
required to discharge pursuant to Section 8(h) of the Participation Agreement
and otherwise comply with the terms of said Section binding on it.
SECTION 5.05. Satisfaction of Conditions Precedent. Anything herein
to the contrary notwithstanding, the Owner Trustee shall comply with the
provisions of Section 3.01 hereof upon the satisfaction, to the satisfaction of
special counsel for the Owner Trustee, of all the applicable conditions
precedent specified in 3.02 hereof and in Section 5 of the Participation
Agreement.
SECTION 5.06. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not have any power, right or authority to,
and the Owner Trustee agrees that it will not, manage, control, use, sell,
dispose of or otherwise deal with the Aircraft or any other part of the Trust
Estate except (i) as expressly required by the terms of any of the Operative
Documents to which the Owner Trustee is a party, (ii) as expressly provided by
the terms hereof, or (iii) as expressly provided in written instructions from
the Owner Participant pursuant to Section 5.01 or 5.02 hereof.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.01. Acceptance of Trusts and Duties. FSB accepts the
trusts hereby created and agrees to perform the same but only upon the terms
hereof applicable to it. The Owner Trustee also agrees to receive and disburse
all monies received by it constituting part of the Trust Estate upon the terms
hereof. FSB shall not be answerable or accountable under any circumstances,
except (a) for its own willful misconduct or gross negligence, (b) for
performance of the terms of the last sentence of Section 5.04 hereof, (c) for
its or the Owner Trustee's failure to use ordinary care to disburse funds and
(d) for liabilities that may result from the inaccuracy of any representation or
warranty of it (or from the failure by it to perform any covenant) in Section
6.03 hereof, in Section 6.03 of the Trust Indenture, in Section 4 of the Lease
or in Section 8(c), 8(d) and 8(v) of the Participation Agreement.
SECTION 6.02. Absence of Certain Duties. Except in accordance with
written instructions furnished pursuant to Section 5.02 hereof and except as
provided in, and without limiting the generality of, Section 5.04 hereof and the
last sentence of Section 9.01(b) hereof, neither the Owner Trustee nor FSB shall
have any duty (i) to see to any recording or filing of any Operative Document or
of any supplement to any thereof or to see to the
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maintenance of any such recording or filing or any other filing of reports with
the Federal Aviation Administration or other governmental agencies, except that
FSB, in its individual capacity, shall comply with the reporting requirements
set forth in 14 C.F.R. ss. 47.45 or any successor provision and the Owner
Trustee shall, to the extent that information for that purpose is supplied by
Lessee pursuant to any of the Operative Documents, complete and timely submit
(and furnish the Owner Participant with a copy of) any and all reports relating
to the Aircraft which may from time to time be required by the Federal Aviation
Administration or any government or governmental authority having jurisdiction,
or (ii) to see to any insurance on the Aircraft or to effect or maintain any
such insurance, whether or not Lessee shall be in default with respect thereto,
other than to forward to the Owner Participant copies of all reports and other
written information which the Owner Trustee receives from Lessee pursuant to
Section 11(c) of the Lease, (iii) to see to the payment or discharge of any tax,
assessment or other governmental charge or any lien or encumbrance of any kind
owing with respect to, assessed or levied against any part of the Trust
Indenture Estate or the Trust Estate, except as provided in Section 8 of the
Participation Agreement, or (iv) to inspect Lessee's books and records with
respect to the Aircraft at any time permitted pursuant to the Lease.
Notwithstanding the foregoing, the Owner Trustee will furnish to the Indenture
Trustee and the Owner Participant, promptly upon receipt thereof, duplicates or
copies of all reports, notices, requests, demands, certificates, financial
statements and other instruments furnished to the Owner Trustee under the Lease
or any other Operative Document.
SECTION 6.03. No Representations or Warranties as to Certain
Matters. NEITHER THE OWNER TRUSTEE NOR FSB MAKES OR SHALL BE DEEMED TO HAVE MADE
(a) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, VALUE,
CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE OF THE AIRCRAFT
OR ANY PART THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE
AIRCRAFT WHATSOEVER, except that FSB in its individual capacity warrants that on
the Delivery Date the Owner Trustee shall have received whatever title was
conveyed to it by Lessee and that the Aircraft shall during the Term be free of
Lessor Liens attributable to it, or (b) any representation or warranty as to the
validity, legality or enforceability of this Trust Agreement or any Operative
Document to which the Owner Trustee is a party, or any other document or
instrument, or as to the correctness of any statement contained in any thereof
except to the extent that any such statement is expressly made herein or therein
as a representation by FSB in its individual capacity or by the Owner Trustee
and except that FSB in its individual capacity hereby represents and warrants
that this Trust Agreement has been, and (assuming due authorization, execution
and delivery by the Owner Participant of this Trust Agreement) the Operative
Documents to which it or the Owner Trustee is a party have been (or at the time
of execution and delivery of any such instrument by it or the Owner Trustee
hereunder or pursuant to the terms of the Participation Agreement that such an
instrument will be) duly executed and delivered by one of its officers who is or
will be, as the case may be, duly authorized to execute and deliver such
instruments on behalf of itself or the Owner Trustee, as the case may be.
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SECTION 6.04. No Segregation of Monies Required; No Interest. Except
as provided in Section 22 of the Lease, monies received by the Owner Trustee
hereunder need not be segregated in any manner except to the extent required by
law, and may be deposited under such general conditions as may be prescribed by
law, and the Owner Trustee shall not be liable for any interest thereon.
SECTION 6.05. Reliance Upon Certificates, Counsel and Agents. The
Owner Trustee shall incur no liability to anyone in acting in reliance upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper reasonably believed by it to be
genuine and reasonably believed by it to be signed by the proper party or
parties. Unless other evidence in respect thereof is specifically prescribed
herein, any request, direction, order or demand of the Owner Participant or
Lessee mentioned herein or in any of the Operative Documents to which the Owner
Trustee is a party shall be sufficiently evidenced by written instruments signed
by a person purporting to be the chairman of the board, the president, any
executive vice president, any senior vice president or any vice president or a
managing director and in the name of the Owner Participant or Lessee, as the
case may be. The Owner Trustee may accept a copy of a resolution of the Board of
Directors or Executive Committee of Lessee, certified by the secretary or any
assistant secretary of Lessee as duly adopted and in full force and effect, as
conclusive evidence that such resolution has been duly adopted by said Board or
Committee and that the same is in full force and effect. As to any fact or
matter the manner of ascertainment of which is not specifically described
herein, the Owner Trustee may for all purposes hereof rely on a certificate
signed by a person purporting to be the chairman of the board, the president,
any executive vice president, any senior vice president or any vice president or
a managing director of Lessee, as to such fact or matter, and such certificate
shall constitute full protection to the Owner Trustee for any action taken or
omitted to be taken by it in good faith in reliance thereon. In the
administration of trusts hereunder, the Owner Trustee may execute any of the
trusts or powers hereof and perform its powers and duties hereunder directly or
through agents or attorneys and may, at the expense of the Trust Estate, consult
with counsel, accountants and other skilled persons to be selected and employed
by it. The Owner Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the advice or opinion of any such
counsel, accountants or other skilled persons and the Owner Trustee shall not be
liable for the negligence of any such agent, attorney, counsel, accountant or
other skilled person appointed by it with due care hereunder.
SECTION 6.06. Not Acting in Individual Capacity. In acting
hereunder, the Owner Trustee acts solely as trustee and not in its individual
capacity except as otherwise expressly provided herein; and, subject to the
terms of the Participation Agreement and the Trust Indenture, all persons, other
than the Owner Participant, as provided herein, having any claim against the
Owner Trustee by reason of the transactions contemplated hereby shall look only
to the Trust Estate for payment or satisfaction thereof.
SECTION 6.07. Fees; Compensation. Except as provided in Section 5.03
or 7.01 hereof, the Owner Trustee agrees that it shall have no right against the
Owner Participant or (subject to the provisions of the Trust Indenture) the
Trust Estate for any fee as
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compensation for its services hereunder; provided, however, that the Owner
Trustee shall have a lien upon the Trust Estate (subject, however, to the lien
of the Trust Indenture) for any such fee not paid by Lessee as contemplated by
the last paragraph of Section 7(c) of the Participation Agreement.
SECTION 6.08. Tax Returns. The Owner Trustee shall be responsible
for the keeping of all appropriate books and records relating to the receipt and
disbursement of all monies under this Trust Agreement or any agreement
contemplated hereby. The Owner Participant shall be responsible for causing to
be prepared and filed all income tax returns required to be filed by the Owner
Participant. The Owner Trustee shall be responsible for causing to be prepared,
at the request and expense of the Owner Participant, all income tax returns
required to be filed with respect to the trust created hereby and shall execute
and file such returns. The Owner Participant or the Owner Trustee, as the case
may be, upon request, will furnish the Owner Trustee or the Owner Participant,
as the case may be, with all such information as may be reasonably required from
the Owner Participant or the Owner Trustee, as the case may be, in connection
with the preparation of such income tax returns.
ARTICLE VII
INDEMNIFICATION OF OWNER TRUSTEE BY OWNER PARTICIPANT
SECTION 7.01. Owner Participant to Indemnify Owner Trustee. The
Owner Participant hereby agrees, whether or not any of the transactions
contemplated hereby shall be consummated, to assume liability for, and hereby
indemnify, protect, save and keep harmless FSB in its individual capacity and
its successors, assigns, legal representatives, agents and servants, from and
against any and all liabilities, obligations, losses, damages, penalties, taxes
(excluding any taxes payable by FSB in its individual capacity on or measured by
any compensation received by FSB in its individual capacity for its services
hereunder or in connection with the transactions contemplated by the Operative
Documents), claims, actions, suits, costs, expenses or disbursements (including,
without limitation, reasonable ongoing fees of the Owner Trustee, reasonable
legal fees and expenses, and including without limitation any liability of an
owner, any strict liability and any liability without fault) of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against FSB
in its individual capacity (whether or not also indemnified against by Lessee
under the Lease or under the Participation Agreement or also indemnified against
by any other person but only to the extent not otherwise paid or reimbursed by
Lessee or such other person) in any way relating to or arising out of this Trust
Agreement or any of the Operative Documents or the enforcement of any of the
terms of any thereof, or in any way relating to or arising out of the
manufacture, purchase, acceptance, nonacceptance, rejection, ownership,
delivery, lease, possession, use, operation, condition, sale, return or other
disposition of the Aircraft (including, without limitation, latent and other
defects, whether or not discoverable, and any claim for patent, trademark or
copyright infringement), or in any way relating to or arising out of the
administration of the Trust Estate or the action or inaction of the Owner
Trustee or FSB in its individual capacity hereunder, except (a) in the case of
willful misconduct or gross negligence
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on the part of the Owner Trustee or FSB in its individual capacity in the
performance or non-performance of its duties hereunder or (b) those resulting
from the inaccuracy of any representation or warranty of FSB in its individual
capacity (or from the failure of FSB in its individual capacity to perform any
covenant) in Section 6.03 hereof, in Section 6.03 of the Trust Indenture or,
with respect to representations or warranties of FSB in its individual capacity
only, in Section 4 of the Lease, in Section 8(c), Section 8(d) or Section 8(v)
of the Participation Agreement or in any of the other Operative Documents or (c)
as may result from a breach by FSB in its individual capacity of its covenants
in the last sentence of Section 5.04 hereof or (d) in the case of the failure to
use ordinary care on the part of the Owner Trustee or FSB in its individual
capacity in the disbursement of funds. The indemnities contained in this Section
7.01 extend to FSB only in its individual capacity and shall not be construed as
indemnities of the Trust Indenture Estate or the Trust Estate (except to the
extent, if any, that FSB in its individual capacity has been reimbursed by the
Trust Indenture Estate or the Trust Estate for amounts covered by the
indemnities contained in this Section 7.01). The indemnities contained in this
Section 7.01 shall survive the termination of this Trust Agreement. In addition,
if necessary, FSB in its individual capacity shall be entitled to
indemnification from the Trust Estate, subject to the Lien of the Trust
Indenture, for any liability, obligation, loss, damage, penalty, tax, claim,
action, suit, cost, expense or disbursement indemnified against pursuant to this
Section 7.01 to the extent not reimbursed by Lessee, the Owner Participant or
others, but without releasing any of them from their respective agreements of
reimbursement; and to secure the same FSB in its individual capacity shall have
a Lien on the Trust Estate, subject to the Lien of the Trust Indenture, which
shall be prior to any interest therein of the Owner Participant. The payor of
any indemnity under this Article VII shall be subrogated to any right of the
person indemnified in respect of the matter as to which such indemnity was paid.
ARTICLE VIII
TRANSFER OF THE OWNER PARTICIPANT'S INTEREST
SECTION 8.01. Transfer of Interests. All provisions of Section 8(n)
of the Participation Agreement shall (with the same force and effect as if set
forth in full, mutatis mutandis, in this Section 8.01) be applicable to any
assignment, conveyance or other transfer by any Owner Participant of its right,
title or interest in and to the Participation Agreement, the Trust Estate or
this Trust Agreement.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES: CO-TRUSTEES
SECTION 9.01. Resignation of Owner Trustee; Appointment of
Successor. (a) Resignation or Removal. The Owner Trustee or any successor Owner
Trustee (i) shall resign if required to do so pursuant to Section 8(c) of the
Participation Agreement and
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(ii) may resign at any time without cause by giving at least sixty (60) days'
prior written notice to the Owner Participant, the Indenture Trustee (so long as
the Lien of the Trust Indenture has not been fully discharged) and Lessee (so
long as the Lease is in effect), such resignation to be effective upon the
acceptance of appointment by the successor Owner Trustee under Section 9.01(b)
hereof. In addition, the Owner Participant may at any time remove the Owner
Trustee without cause by a notice in writing delivered to the Owner Trustee, the
Indenture Trustee (so long as the Lien of the Trust Indenture has not been fully
discharged) and Lessee (so long as the Lease is in effect), such removal to be
effective upon the acceptance of appointment by the successor Owner Trustee
under Section 9.01(b) hereof. In the case of the resignation or removal of the
Owner Trustee, the Owner Participant may appoint a successor Owner Trustee by an
instrument signed by the Owner Participant. If a successor Owner Trustee shall
not have been appointed within thirty (30) days after such notice of resignation
or removal, the Owner Trustee, the Owner Participant, Lessee or the Indenture
Trustee may apply to any court of competent jurisdiction to appoint a successor
Owner Trustee to act until such time, if any, as a successor shall have been
appointed as above provided. Any successor Owner Trustee so appointed by such
court shall immediately and without further act be superseded by any successor
Owner Trustee appointed as above provided.
(b) Execution and Delivery of Documents, etc. Any successor Owner
Trustee, however appointed, shall execute and deliver to the predecessor Owner
Trustee and the Owner Participant an instrument accepting such appointment, and
thereupon such successor Owner Trustee, without further act, shall become vested
with all the estates, properties, rights, powers, duties and trusts of the
predecessor Owner Trustee in the trusts hereunder with like effect as if
originally named the Owner Trustee herein; but nevertheless, upon the written
request of such successor Owner Trustee, such predecessor Owner Trustee shall
execute and deliver an instrument transferring to such successor Owner Trustee,
upon the trusts herein expressed, all the estates, properties, rights, powers
and trusts of such predecessor Owner Trustee, and such predecessor Owner Trustee
shall duly assign, transfer, deliver and pay over to such successor Owner
Trustee all monies or other property then held by such predecessor Owner Trustee
upon the trusts herein expressed. Upon the appointment of any successor Owner
Trustee hereunder, the predecessor Owner Trustee will execute such documents as
are provided to it by such successor Owner Trustee and will take such further
actions as are requested of it by such successor Owner Trustee as are reasonably
required to cause registration of the Aircraft included in the Trust Estate to
be transferred upon the records of the Federal Aviation Administration, or other
governmental authority having jurisdiction, into the name of the successor Owner
Trustee.
(c) Qualification. Any successor Owner Trustee, however appointed,
shall be a Citizen of the United States without making use of a voting trust,
voting powers agreement or similar arrangement and shall also be a bank or trust
company organized under the laws of the United States or any state thereof
having a combined capital and surplus of at least $100,000,000, if there be such
an institution willing, able and legally qualified to perform the duties of the
Owner Trustee hereunder upon reasonable or customary terms.
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(d) Merger, etc. Any corporation into which the Owner Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Owner
Trustee shall be a party, or any corporation to which substantially all the
corporate trust business of the Owner Trustee may be transferred, shall, subject
to the terms of Section 9.01(c) hereof, be the Owner Trustee hereunder without
further act.
SECTION 9.02. Co-Trustees and Separate Trustees. If at any time it
shall be necessary or prudent in order to conform to any law of any jurisdiction
in which all or any part of the Trust Estate is located, or the Owner Trustee
being advised by counsel shall determine that it is so necessary or prudent in
the interest of the Owner Participant or the Owner Trustee, or the Owner Trustee
shall have been directed to do so by the Owner Participant, the Owner Trustee
and the Owner Participant shall execute and deliver an agreement supplemental
hereto and all other instruments and agreements necessary or proper to
constitute another bank or trust company or one or more persons (any and all of
which shall be a Citizen of the United States without making use of a voting
trust, voting powers agreement or similar arrangement) approved by the Owner
Trustee and the Owner Participant, either to act as co-trustee, jointly with the
Owner Trustee, or to act as separate trustee hereunder (any such co-trustee or
separate trustee being herein sometimes referred to as an "additional trustee").
In the event an Indenture Event of Default not arising from a Lease 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 such contingency.
Every additional trustee hereunder shall, to the extent permitted by
law, be appointed and act, and the Owner Trustee and its successors shall act,
subject to the following provisions and conditions:
(A) all powers, duties, obligations and rights conferred upon the
Owner Trustee in respect of the custody, control and management of monies,
or documents authorized to be delivered hereunder or under the
Participation Agreement shall be exercised solely by the Owner Trustee;
(B) all other rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred or imposed upon and
exercised or performed by the Owner Trustee and such additional trustee
jointly, except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (including the
holding of title to the Trust Estate) the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations shall be exercised and
performed by such additional trustee;
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(C) no power given to, or which it is provided hereby may be
exercised by, any such additional trustee shall be exercised hereunder by
such additional trustee, except jointly with, or with the consent in
writing of, the Owner Trustee;
(D) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder;
(E) the Owner Participant, at any time, by an instrument in writing
may remove any such additional trustee unless such additional trustee was
appointed by the Owner Trustee without the concurrence of the Owner
Participant during the occurrence of an Indenture Event of Default not
arising from a Lease Event of Default, in which case 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 for it in such
connection in such contingency; and
(F) no appointment of, or action by, any additional trustee will
relieve the Owner Trustee of any of its obligations under, or otherwise
affect any of the terms of, the Trust Indenture or affect the interests of
the Indenture Trustee or the holders of the Secured Certificates in the
Trust Indenture Estate.
ARTICLE X
SUPPLEMENTS AND AMENDMENTS
TO TRUST AGREEMENT AND OTHER DOCUMENTS
SECTION 10.01. Supplements and Amendments. (a) Supplements and
Amendments. This Trust Agreement may not be amended, supplemented or otherwise
modified except by an instrument in writing signed by the Owner Trustee and the
Owner Participant. Subject to Section 10.02 hereof and the first sentence of
Section 10 of the Participation Agreement, the Owner Trustee will execute any
amendment, supplement or other modification of this Trust Agreement or of any
other Operative Document to which the Owner Trustee is a party which it is
requested to execute by the Owner Participant, except that the Owner Trustee
shall not execute any such amendment, supplement or other modification which, by
the express provisions of any of the above documents, requires the consent of
any other party unless such consent shall have been obtained.
(b) Delivery of Amendments and Supplements to Certain Parties. A
signed copy of each amendment or supplement referred to in Section 10.01(a)
hereof shall be delivered by the Owner Trustee to the Indenture Trustee and each
holder of a Secured Certificate.
SECTION 10.02. Discretion as to Execution of Documents. Prior to
executing any document required to be executed by it pursuant to the terms of
Section 10.01 hereof, the Owner Trustee shall be entitled to receive an opinion
of its counsel to the effect that
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the execution of such document is authorized hereunder. If in the opinion of the
Owner Trustee any such document adversely affects any right, duty, immunity or
indemnity in favor of the Owner Trustee hereunder or under any other Operative
Document to which the Owner Trustee is a party, the Owner Trustee may in its
discretion decline to execute such document.
SECTION 10.03. Absence of Requirements as to Form. It shall not be
necessary for any written request furnished pursuant to Section 10.01 hereof to
specify the particular form of the proposed documents to be executed pursuant to
such Section, but it shall be sufficient if such request shall indicate the
substance thereof.
SECTION 10.04. Distribution of Documents. Promptly after the
execution by the Owner Trustee of any document entered into pursuant to Section
10.01 hereof, the Owner Trustee shall mail, by certified mail, postage prepaid,
a conformed copy thereof to the Owner Participant, but the failure of the Owner
Trustee to mail such conformed copy shall not impair or affect the validity of
such document.
SECTION 10.05. No Request Needed as to Lease Supplement and Trust
Supplement. No written request pursuant to Section 10.01 hereof shall be
required to enable the Owner Trustee to enter into the Lease Supplement covering
the Aircraft with Lessee pursuant to the terms of the Lease and Section 3.01
hereof and the Trust Supplement pursuant to the terms of the Trust Indenture and
Section 3.01 hereof.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Termination of Trust Agreement. This Trust Agreement
and the trusts created hereby shall be of no further force or effect upon the
earlier of (a) both the final discharge of the Trust Indenture pursuant to
Section 10.01 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 Lease and the Participation Agreement or (b) twenty-one years less
one day after the death of the last survivor of all of the descendants of the
grandparents of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ living on the date of the earliest execution
of this Trust Agreement by any party hereto; otherwise this Trust Agreement and
the trusts created hereby shall continue in full force and effect in accordance
with the terms hereof.
SECTION 11.02. Owner Participant Has No Legal Title in Trust Estate.
The Owner Participant shall not have legal title to any part of the Trust
Estate. No transfer, by operation of law or otherwise, of any right, title and
interest of the Owner Participant in and to the Trust Estate hereunder shall
operate to terminate this Trust Agreement or the trusts hereunder or entitle any
successors or transferees of the Owner Participant to an accounting or to the
transfer of legal title to any part of the Trust Estate.
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SECTION 11.03. Assignment, Sale, etc. of Aircraft. Any assignment,
sale, transfer or other conveyance of its interest in the Aircraft by the Owner
Trustee made pursuant to the terms hereof or of the Lease or the Participation
Agreement shall bind the Owner Participant and shall be effective to transfer or
convey all right, title and interest of the Owner Trustee and the Owner
Participant in and to the Aircraft. No purchaser or other grantee shall be
required to inquire as to the authorization, necessity, expediency or regularity
of such assignment, sale, transfer or conveyance or as to the application of any
sale or other proceeds with respect thereto by the Owner Trustee.
SECTION 11.04. Trust Agreement for Benefit of Certain Parties Only.
Except for the terms of Section 8(n) of the Participation Agreement incorporated
in Article VIII hereof and except as otherwise provided in Articles IX and X
hereof, nothing herein, whether expressed or implied, shall be construed to give
any Person other than the Owner Trustee and the Owner Participant any legal or
equitable right, remedy or claim under or in respect of this Trust Agreement;
but this Trust Agreement shall be held to be for the sole and exclusive benefit
of the Owner Trustee and the Owner Participant.
SECTION 11.05. Notices; Consent to Jurisdiction. (a) All notices,
demands, instructions and other communications required or permitted to be given
to or made upon any party hereto shall be in writing and shall be personally
delivered or sent by registered or certified mail, postage prepaid, or by
telecopier, or by prepaid courier service, and shall be deemed to be given for
purposes of this Trust Agreement on the day that such writing is delivered or
sent to the intended recipient thereof in accordance with the provisions of this
Section 11.05(a). Unless otherwise specified in a notice sent or delivered in
accordance with the foregoing provisions of this Section 11.05(a), notices,
demands, instructions and other communications in writing shall be given to or
made upon the respective parties hereto at their respective addresses (or to
their respective telecopier numbers) as follows: (A) if to Lessee, the Owner
Trustee, the Loan Participants, the Indenture Trustee or the Owner Participant,
to the respective addresses set forth below the signatures of such parties on
the signature page of the Participation Agreement, or (B) if to a Subsequent
Owner Participant, addressed to such Subsequent Owner Participant at such
address as such Subsequent Owner Participant shall have furnished by notice to
the parties hereto or (C) if to any subsequent Certificate Holder, addressed to
such Certificate Holder at its address set forth in the secured certificate
register maintained pursuant to Section 2.07 of the Trust Indenture.
(b) Each of the parties hereto (A) hereby irrevocably submits itself
to the non-exclusive jurisdiction of the United States District Court for the
Southern District of New York and to the non-exclusive jurisdiction of the
Supreme Court of the State of New York, New York County, for the purposes of any
suit, action or other proceeding arising out of this Trust Agreement, the
Participation Agreement, the Lease, the Tax Indemnity Agreement or any other
Operative Document, the subject matter of any thereof or any of the transactions
contemplated hereby or thereby brought by any party or parties thereto, or their
successors or assigns, and (B) hereby waives, and agrees not to assert, by way
of motion, as a defense, or otherwise, in any such suit, action or proceeding,
to the extent permitted by applicable law, that the suit, action or proceeding
is brought in an inconvenient forum, that the venue of the
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suit, action or proceeding is improper, or that the Participation Agreement, the
Lease, the Tax Indemnity Agreement or any other Operative Document or the
subject matter of any thereof or any of the transactions contemplated hereby or
thereby may not be enforced in or by such courts.
SECTION 11.06. Severability. Any provision hereof which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.07. Waivers, etc. No term or provision hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing entered into in compliance with the terms of Article X hereof; and any
waiver of the terms hereof shall be effective only in the specific instance and
for the specific purpose given.
SECTION 11.08. Counterparts. This Trust Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.09. Binding Effect, etc. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Owner
Trustee and its successors and assigns, and the Owner Participant, its
successors and, to the extent permitted by Article VIII hereof, its assigns. Any
request, notice, direction, consent, waiver or other instrument or action by the
Owner Participant shall bind its successors and assigns. Any Owner Participant
which shall cease to have any Ownership Interest shall thereupon cease to be a
party hereto or an Owner Participant for any reason and shall have no further
obligations hereunder.
SECTION 11.10. Headings; References. The headings of the various
Articles and Sections herein are for convenience of reference only and shall not
define or limit any of the terms or provisions hereof.
SECTION 11.11. GOVERNING LAW. THIS TRUST AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF UTAH, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
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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.
NATIONAL CITY LEASING CORPORATION
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------
Title: Vice President
FIRST SECURITY BANK,
NATIONAL ASSOCIATION
BY /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Vice President
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