Exhibit 99(f)
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TRUST AGREEMENT
[NW ____ _]
Dated as of [____________]
between
[_______________________________________],
Owner Participant
and
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
Owner Trustee
One [Boeing 757-351] [Airbus A330-323]
Aircraft
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TRUST AGREEMENT
[NW ____ _]
This TRUST AGREEMENT [NW ____ _] dated as of [_______________]
between [____________________________________], a [_______________] (the
"Original Owner Participant"), and XXXXX FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, a national banking association (in its individual capacity,
"Xxxxx Fargo") and otherwise not in its individual capacity but solely as
trustee hereunder (herein in such capacity with its permitted successors and
assigns called the "Owner Trustee");
W I T N E S S E T H:
ARTICLE I
DEFINITIONS AND TERMS
SECTION 1.01. 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 ____ _], to be dated
as of the date hereof, and to be entered into by the Owner Trustee and Lessee
concurrently with the execution and delivery of this Trust Agreement, 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 Original 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.
"Subsequent Owner Participant" means any corporation to which the
Original Owner Participant or any transferee from the Original 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 Original 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 Guaranty -- A330 only], the Purchase Agreement
Assignment, the Xxxx of Sale and the FAA Xxxx 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 MAC: U1228-120, 000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx, Xxxx
Xxxx Xxxx, Xxxx 00000, Attention: Corporate Trust Services, or the principal
corporate trust office of any successor Owner Trustee.
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"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.
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 will hold the Trust Estate upon the trusts hereinafter set
forth for the use and benefit of the Owner Participant, subject, however, to
the provisions of and the Lien created by the Trust Indenture and to the
provisions of the Lease. The name of the trust created hereby shall be "[N____
200_ Trust]" and such name may (but need not) be used in any correspondence
and filings made by Owner Trustee in connection with the trust created hereby.
ARTICLE III
ACCEPTANCE AND DELIVERY OF AIRCRAFT;
ISSUANCE OF SECURED CERTIFICATES
SECTION 3.01. Acceptance of Aircraft. The Original 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 Xxxx of Sale;
(b) accept from Lessee the delivery of the Xxxx of Sale and the FAA
Xxxx 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;
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(e) issue to the Loan Participants Secured Certificates in the
amounts and otherwise as provided in Section 1(a) of the Participation
Agreement;
(f) execute and deliver the financing statements referred to in
Section 4(a)(vi) of the Participation Agreement, together with all other
agreements, documents and instruments referred to in Section 4 of the
Participation Agreement to which the Owner Trustee is a party; and
(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 Xxxx
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 Original 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 4 of the Participation
Agreement, insofar as they relate to the Aircraft, shall have been
complied with in a manner satisfactory to the Original 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;
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(b) accept from Lessee or other vendor of the Replacement Airframe
and Replacement Engines, if any, or the Replacement Engine a xxxx of sale
or bills of sale (if tendered), and the invoice, if any, with respect to
the Replacement Airframe and Replacement Engines, if any, or the
Replacement Engine being furnished pursuant to Section 10(a) or (b) of
the Lease;
(c) in the case of a Replacement Airframe, make application to the
Federal Aviation Administration for the registration in the name of the
Owner Trustee of the Aircraft of which such Replacement Airframe is a
part;
(d) execute and deliver a Lease Supplement and a Trust Supplement
covering (i) the Aircraft of which such Replacement Airframe is part or
(ii) such Replacement Engine, as the case may be;
(e) transfer its interest in (without recourse except as to
obligations in respect of Lessor Liens, 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 xxxx of sale with respect to such engine
contemplated by such Section 5(b) (if tendered);
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(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
(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
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payable under the provisions of the Participation Agreement, the Tax Indemnity
Agreement or the Lease.
SECTION 4.02. Method of Payments. The Owner Trustee shall make
distributions or cause distributions to be made to the Owner Participant
pursuant to this Article IV by transferring by wire transfer the amount to be
distributed to such account or accounts of the Owner Participant as the Owner
Participant may designate from time to time in writing to the Owner Trustee.
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 Xxxxx Fargo 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 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
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Section 5.01 or 5.02, and no implied duties or obligations shall be read into
this Trust Agreement against the Owner Trustee. Xxxxx Fargo 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 Section 3.02 hereof and in Section 4 of the
Participation Agreement.
SECTION 5.06. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not have any power, right or authority
to, and the Owner Trustee agrees that it will not, manage, control, use, sell,
dispose of or otherwise deal with the Aircraft or any other part of the Trust
Estate except (i) as expressly required by the terms of any of the Operative
Documents to which the Owner Trustee is a party, (ii) as expressly provided by
the terms hereof, or (iii) as expressly provided in written instructions from
the Owner Participant pursuant to Section 5.01 or 5.02 hereof.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.01. Acceptance of Trusts and Duties. Xxxxx Fargo 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. Xxxxx Fargo 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
Xxxxx Fargo shall have any duty (i) to see to any recording or filing of any
Operative Document or of any supplement to any thereof or to see to the
maintenance of any such recording or filing or any other filing of reports
with the Federal Aviation Administration or other governmental agencies,
except that Xxxxx Fargo, 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
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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, or (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 XXXXX FARGO 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 Xxxxx Fargo 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 Xxxxx Fargo in its individual capacity or by the Owner
Trustee and except that Xxxxx Fargo in its individual capacity hereby
represents and warrants that this Trust Agreement has been, and (assuming due
authorization, execution and delivery by the Original 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.
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
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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 and Section 16 of the Participation Agreement, the Owner
Trustee agrees that it shall have no right against the Owner Participant or
(subject to the provisions of the Trust Indenture) the Trust Estate for any
fee as compensation for its services hereunder; 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
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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 Xxxxx Fargo 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 Xxxxx Fargo in its
individual capacity on or measured by any compensation received by Xxxxx Fargo
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 Xxxxx
Fargo 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 Xxxxx Fargo in its individual capacity
hereunder, except (a) in the case of willful misconduct or gross negligence on
the part of the Owner Trustee or Xxxxx Fargo 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 Xxxxx Fargo in its
individual capacity (or from the failure of Xxxxx Fargo 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 Xxxxx
Fargo 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 Xxxxx
Fargo 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 Xxxxx Fargo in its individual capacity in the
disbursement of funds. The indemnities contained in this Section 7.01 extend
to Xxxxx Fargo 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 Xxxxx Fargo 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
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indemnities contained in this Section 7.01 shall survive the termination of
this Trust Agreement. In addition, if necessary, Xxxxx Fargo 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
Xxxxx Fargo 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 (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.
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(b) Execution and Delivery of Documents, etc. Any successor Owner
Trustee, however appointed, shall execute and deliver to the predecessor Owner
Trustee and the Owner Participant an instrument accepting such appointment,
and thereupon such successor Owner Trustee, without further act, shall become
vested with all the estates, properties, rights, powers, duties and trusts of
the predecessor Owner Trustee in the trusts hereunder with like effect as if
originally named the Owner Trustee herein; but nevertheless, upon the written
request of such successor Owner Trustee, such predecessor Owner Trustee shall
execute and deliver an instrument transferring to such successor Owner
Trustee, upon the trusts herein expressed, all the estates, properties,
rights, powers and trusts of such predecessor Owner Trustee, and such
predecessor Owner Trustee shall duly assign, transfer, deliver and pay over to
such successor Owner Trustee all monies or other property then held by such
predecessor Owner Trustee upon the trusts herein expressed. Upon the
appointment of any successor Owner Trustee hereunder, the predecessor Owner
Trustee will execute such documents as are provided to it by such successor
Owner Trustee and will take such further actions as are requested of it by
such successor Owner Trustee as are reasonably required to cause registration
of the Aircraft included in the Trust Estate to be transferred upon the
records of the Federal Aviation Administration, or other governmental
authority having jurisdiction, into the name of the successor Owner Trustee.
(c) Qualification. Any successor Owner Trustee, however appointed,
shall be a Citizen of the United States without making use of a voting trust,
voting powers agreement or similar arrangement and shall also be a bank or
trust company organized under the laws of the United States or any state
thereof having a combined capital and surplus of at least $100,000,000, if
there be such an institution willing, able and legally qualified to perform
the duties of the Owner Trustee hereunder upon reasonable or customary terms.
(d) Merger, etc. Any corporation into which the Owner Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Owner
Trustee shall be a party, or any corporation to which substantially all the
corporate trust business of the Owner Trustee may be transferred, shall,
subject to the terms of Section 9.01(c) hereof, be the Owner Trustee hereunder
without further act.
SECTION 9.02. Co-Trustees and Separate Trustees. If at any time it
shall be necessary or prudent in order to conform to any law of any
jurisdiction in which all or any part of the Trust Estate is located, or 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
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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, the Aircraft or documents authorized to be delivered hereunder or
under the Participation Agreement shall be exercised solely by the Owner
Trustee;
(B) all other rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred or imposed upon and
exercised or performed by the Owner Trustee and such additional trustee
jointly, except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (including the
holding of title to the Trust Estate) the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations shall be exercised and
performed by such additional trustee;
(C) no power given to, or which it is provided hereby may be
exercised by, any such additional trustee shall be exercised hereunder by
such additional trustee, except jointly with, or with the consent in
writing of, the Owner Trustee;
(D) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder;
(E) the Owner Participant, at any time, by an instrument in writing
may remove any such additional trustee 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.
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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 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.
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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 Xxxxx Xxxxxxxxxxx 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.
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
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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 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.
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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.
SECTION 11.12. No Bankruptcy or Insolvency Proceedings. The trust
created by this Trust Agreement is not intended to be a business trust within
the meaning of Section 101(9)(A)(v) of the Bankruptcy Code. The Owner Trustee
shall not have the power to (i) institute proceedings to have the trust
created by this Trust Agreement declared or adjudicated a bankrupt or
insolvent, (ii) consent to the institution of bankruptcy or insolvency
proceedings against the trust created by this Trust Agreement, (iii) file a
petition or consent to a petition seeking reorganization or relief on behalf
of the trust created by this Trust Agreement under any applicable federal or
state law relating to bankruptcy, (iv) consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or any similar
official) of the trust created by this Trust Agreement or a substantial
portion of the assets of the trust created by this Trust Agreement, (v) make
any assignment for the benefit of the creditors of the trust created by this
Trust Agreement, (vi) cause the trust created by this Trust Agreement to admit
in writing its inability to pay its debts generally as they become due, or
(vii) take any action, or cause the trust created by this Trust Agreement to
take any action, in furtherance of any of the foregoing. Xxxxx Fargo, by
entering into this Trust Agreement, hereby covenants and agrees that it will
not at any time institute against the trust created by this Trust Agreement,
or join in any institution against the trust created by this Trust Agreement
of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or insolvency law in connection with any obligations relating to
this Trust Agreement or any of the other Operative Documents.
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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.
[__________________________]
By: __________________________________
Name:
Title:
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION
By: __________________________________
Name:
Title:
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