Exhibit 99(l)
NORTHWEST AIRLINES INC.
Beneficiary
WILMINGTON TRUST COMPANY
Owner Trustee
------------------------------
TRUST AGREEMENT
Dated as of _______ __, 200_
------------------------------
NWA CLASS D CERTIFICATE TRUST
Table of Contents
PAGE
Article I
Definitions and Construction
Section 1.01. Capitalized Terms.
Section 1.02. Other Terms.
Section 1.03. Rules of Construction.
Article II
Organization
Section 2.01. Name.
Section 2.02. Office.
Section 2.03. Purposes and Powers.
Section 2.04. Appointment of Owner Trustee.
Section 2.05. Authority.
Section 2.06. Declaration of Trust.
Section 2.07. Maintenance of Separate Existence; Prohibited Transactions.
Section 2.08. Liability of Beneficiary.
Section 2.09. Title to Trust Property.
Section 2.10. Situs of Trust.
Section 2.11. Representations, Warranties and Covenants of Beneficiary; Capital
Contributions for Series D Equipment Notes.
Article III
Limitation on Transfer of Beneficial Interest
Section 3.01. Beneficial Ownership.
Article IV
Actions by Owner Trustee
Section 4.01. Prior Notice to Beneficiary with Respect to Certain Matters.
Section 4.02. Restrictions on Beneficiary Power.
Article V
Application of Trust Funds; Certain Duties
Section 5.01. Application of Trust Funds.
Section 5.02. Method of Payment.
Section 5.03. No Segregation of Moneys; No Interest.
Section 5.04. Accounting and Reports to Beneficiary, Internal Revenue Service
and Others.
Article VI
Authority and Duties of Owner Trustee
Section 6.01. General Authority.
Section 6.02. General Duties.
Section 6.03. Action upon Instruction.
Section 6.04. No Duties Except as Specified in Agreement or Instructions.
Section 6.05. No Action Except under Specified Documents or Instructions.
Section 6.06. Restrictions.
Section 6.07. Not Responsible for Recitals or Sufficiency of Agreement.
Article VII
Concerning Owner Trustee
Section 7.01. Acceptance of Trusts and Duties.
Section 7.02. Furnishing of Documents.
Section 7.03. Representations and Warranties.
Section 7.04. Reliance; Advice of Counsel.
Section 7.05. Not Acting in Individual Capacity.
Section 7.06. Owner Trustee Not Liable for Trust Assets or Trust Fund.
Article VIII
Compensation of Owner Trustee
Section 8.01. Owner Trustee's Fees and Expenses.
Section 8.02. Indemnification.
Section 8.03. Payments to Owner Trustee.
Article IX
Termination of Agreement
Section 9.01. Termination of Agreement.
Article X
Successor Owner Trustees and Additional Owner Trustees
Section 10.01. Eligibility Requirements for Owner Trustee.
Section 10.02. Resignation or Removal of Owner Trustee.
Section 10.03. Successor Owner Trustee.
Section 10.04. Merger or Consolidation of Owner Trustee.
Section 10.05. Appointment of Co-Trustee or Separate Trustee.
Article XI
Miscellaneous
Section 11.01. Supplements and Amendments.
Section 11.02. No Legal Title to Trust Assets in Beneficiary.
Section 11.03. Limitations on Rights of Others.
Section 11.04. Notices.
Section 11.05. Separate Counterparts.
Section 11.06. Successors and Assigns.
Section 11.07. No Petition.
Section 11.08. No Recourse.
Section 11.09. Headings.
Section 11.10. Governing Law.
Section 11.11. Integration.
EXHIBITS
EXHIBIT A Form of Certificate of Trust...........................................A-1
This
TRUST AGREEMENT is dated as of _______ __, 200_ (as amended,
supplemented or modified from time to time, this "AGREEMENT"), between
Wilmington Trust Company, a
Delaware banking corporation (in its capacity as
trustee hereunder, the "OWNER TRUSTEE"), Northwest Airlines Inc., a Minnesota
corporation (in its capacity as beneficiary hereunder, the "BENEFICIARY").
WHEREAS, the Beneficiary and the Owner Trustee wish to create a
Delaware business trust;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
Definitions and Construction
Section 1.01. CAPITALIZED TERMS.
As used in this Agreement and unless the context requires a different
meaning, capitalized terms are used in this Agreement with the following
meanings:
"BENEFICIARY" means the Beneficiary, and its successors and assigns, as
the holder of an uncertificated beneficial interest in the Trust.
"BUSINESS TRUST STATUTE" means Chapter 38 of Title 12 of the
Delaware
Code, 12 Del. Code ss. 3801 ET SEQ.
"CERTIFICATE OF TRUST" means the Certificate of Trust in the form of
Exhibit A filed for the Trust pursuant to Section 3810(a) of the Business Trust
Statute.
"CLASS D TRUST" means the Northwest Airlines Pass Through Trust, Class
2001-1D formed pursuant to the Pass Through
Trust Agreement.
"CLASS D TRUSTEE" means the trustee under the Pass Through
Trust
Agreement, initially State Street Bank and Trust Company of Connecticut,
National Association.
"CORPORATE TRUST OFFICE" means, with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000-0000 Attention:
Corporate Trust Administration, or at such other address as the Owner Trustee
may designate by notice to the Beneficiary or the principal corporate trust
office of any successor Owner Trustee at the address designated by such Owner
Trustee by notice to the Beneficiary.
"EXPENSES" has the meaning assigned to it in Section 8.02.
"INDEMNIFIED PARTIES" has the meaning assigned to it in Section 8.02.
"OPINION OF COUNSEL" means one or more written opinions of counsel, who
may be an employee of or counsel to the Beneficiary, which counsel shall be
acceptable to the Owner Trustee or the Rating Agencies, as applicable.
"OWNER TRUSTEE" means Wilmington Trust Company, a
Delaware banking
corporation, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor Owner Trustee hereunder.
"PASS THROUGH
TRUST AGREEMENT" means the Pass Through
Trust Agreement,
dated as of June 3, 1999 among Northwest Airlines, Inc.,
Northwest Airlines
Corporation and State Street Bank and Trust Company of Connecticut, National
Association, as supplemented by Trust Supplement 2001-1D.
"RESPONSIBLE OFFICER" means, with respect to the Owner Trustee, any
officer within the Corporate Trust Administration Department of the Owner
Trustee, including any Vice President, Assistant Vice President, Secretary,
Assistant Secretary, Financial Services Officer, Authorized Signatory or any
other officer of the Owner Trustee customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"SECRETARY OF STATE" means the Secretary of State of the State of
Delaware.
"TREASURY REGULATIONS" means regulations, including proposed or
temporary Regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"TRUST" means the NWA Class D Certificate Trust, a
Delaware business
trust established by this Agreement.
"TRUST ASSETS" means the Class D Pass Through Certificates, Series
2001-1, issued by the Class D Trustee pursuant to the Pass Through
Trust
Agreement.
Section 1.02. OTHER TERMS.
Capitalized terms used in this Agreement that are not otherwise defined
have the meanings ascribed to them in the Pass Through
Trust Agreement.
Section 1.03. RULES OF CONSTRUCTION.
Except as otherwise expressly provided in this Agreement or unless the
context otherwise clearly requires:
(a) References to designated articles, sections, and other subdivisions
of this Agreement, such
-2-
as "Section 2.03(a)," refer to the designated article, section, or other
subdivision of this Agreement as a whole and to all subdivisions of the
designated article, section, or other subdivision. The words "herein," "hereof,"
"hereto," "hereunder" and other words of similar import refer to this Agreement
as a whole and not to any particular article, section, or other subdivision of
this Agreement.
(b) Any term that relates to a document or a statute, rule, or
regulation includes any amendments, modifications, supplements or any other
changes that may have occurred since the document, statute, rule, or regulation
came into being, including changes that occur after the date of this Agreement.
(c) Any party may execute any of the requirements under this Agreement
either directly or through others, and the right to cause something to be done
rather than doing it directly shall be implicit in every requirement under this
Agreement. Unless a provision is restricted as to time or limited as to
frequency, all provisions under this Agreement are implicitly available from
time to time.
(d) The term "including" and all its variations mean "including but not
limited to." Except when used in conjunction with the word "either," the word
"or" is always used inclusively (for example, the phrase "A or B" means "A or B
or both," not "either A or B but not both").
(e) All accounting terms used in an accounting context and not
otherwise defined shall be construed in accordance with generally accepted
accounting principles. Capitalized terms used in this Agreement without
definition that are defined in the Uniform Commercial Code are used in this
Agreement as defined in the Uniform Commercial Code.
(f) In the computation of a period of time from a specified date to a
later specified date or an open-ended period, the word "from" means "from and
including" and the words "to" or "until" mean "to but excluding." Likewise, in
setting deadlines or other periods, "by" means "on or before," and "after" means
"from and after."
(g) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
ARTICLE II
Organization
Section 2.01. NAME.
This Trust shall be known as "NWA Class D Certificate Trust," in which
name the Owner Trustee may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and xxx and be sued. The
Trust's activities shall be conducted only under the name of the Trust.
Section 2.02. OFFICE.
The office of the Trust shall be in care of the Owner Trustee at the
Corporate Trust Office or at
-3-
any other address in
Delaware as the Owner Trustee designates by written notice
to the Beneficiary
Section 2.03. PURPOSES AND POWERS.
The exclusive purposes and functions of the Trust are as follows:
(a) to acquire, own, and hold the Trust Assets;
(b) to make contributions to the Class D Trust for the purchase of
Series D Equipment Notes by the Class D Trustee pursuant to Section 2.11(b)
hereof;
(c) to hold, manage and distribute to the Beneficiary pursuant to the
terms of this Agreement any funds to be distributed to the Trust pursuant to the
Pass Through
Trust Agreement;
(d) to engage in those activities, including entering into agreements,
that are necessary or suitable to accomplish the foregoing or are incidental
thereto or connected therewith; and
(e) to engage in such other activities as may be required in connection
with conservation of the Trust Assets and the making of distributions to the
Beneficiary.
The Trust is hereby authorized to engage in the foregoing activities.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement.
Section 2.04. APPOINTMENT OF OWNER TRUSTEE.
The Beneficiary hereby appoints the Owner Trustee as trustee of the
Trust effective as of the date hereof, to have all the rights, powers and duties
set forth herein.
Section 2.05. AUTHORITY.
Subject to the limitations provided in this Agreement, the Owner
Trustee shall have the complete authority to carry out the purposes of the
Trust. An action taken by the Owner Trustee in accordance with its powers shall
constitute the act of, and serve to bind, the Trust. In dealing with the Owner
Trustee acting on behalf of the Trust, no Person shall be required to inquire
into the authority of the Owner Trustee to bind the Trust. Persons dealing with
the Trust are entitled to rely conclusively on the power and authority of the
Owner Trustee as set forth in this Agreement.
Section 2.06. DECLARATION OF TRUST.
The Owner Trustee hereby declares that it will hold the Trust Assets in
trust upon and subject to the conditions set forth herein for the use and
benefit of the Beneficiary. It is the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Statute and that this
Agreement
-4-
constitute the governing instrument of such business trust. It is the intention
of the parties hereto that, solely for income and franchise tax purposes, the
Trust shall be treated as a grantor trust. The parties agree that, unless
otherwise required by appropriate tax authorities, the Trust will file or cause
to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust as provided in the preceding
sentence for such tax purposes. Effective as of the date hereof, the Owner
Trustee shall have all rights, powers and duties set forth herein and in the
Business Trust Statute with respect to accomplishing the purposes of the Trust.
The Owner Trustee is hereby authorized to file with the Secretary of State the
Certificate of Trust.
Section 2.07. MAINTENANCE OF SEPARATE EXISTENCE; PROHIBITED
TRANSACTIONS.
The Trust shall maintain operations separate and apart from those of
the Beneficiary and its Affiliates. In furtherance of the maintenance of
separate operations, and without limiting the foregoing sentence, the Trust
shall act in accordance with the following:
(a) The Trust shall act solely in its own name and shall not hold
itself out as being an agent for the Beneficiary or any Affiliate thereof, and
shall not represent to any third party that the credit or resources of the
Beneficiary or any Affiliate thereof will be available to satisfy the
liabilities or obligations of the Trust.
(b) The Trust shall observe all customary business trust formalities,
including keeping books and records separate and apart from those of the
Beneficiary and any Affiliate thereof and taking appropriate business trust
actions at the appropriate times.
(c) The assets of the Trust shall be separately identified and
segregated and shall not be commingled with those of the Beneficiary. All of the
Trust's assets shall at all times be held by or on behalf of the Trust, and if
held on behalf of the Trust by another entity, shall at all times be kept
identifiable (in accordance with customary usage) as assets owned by the Trust.
In no event shall any of the Trust's assets be held on its behalf or otherwise
by the Beneficiary or any Affiliate thereof. The Trust shall maintain its own
bank accounts, payroll and separate books of account.
(d) Any transaction between the Trust, on the one hand, and the
Beneficiary or any Affiliate thereof, on the other hand, shall be conducted only
on terms and conditions comparable to transactions on an arm's length basis with
unaffiliated persons.
(e) The Trust shall directly manage its own liabilities from its own
funds, including paying its own operating expenses and reimbursing the
Beneficiary or any Affiliate thereof, as the case may be, for any payroll
expenses that are attributable to the Beneficiary of the Trust.
(f) The Beneficiary shall have no right:
(i) to revoke, dissolve or terminate the Trust;
(ii) to call for any partition or division of the property or
assets of the Trust; or
-5-
(iii) to commence any voluntary proceeding with respect to the
Trust under any United States federal or State bankruptcy or similar law
without the prior written consent of the Owner Trustee.
(g) The Trust shall not merge or consolidate with, or sell all or
substantially all its assets to any Person. Without limiting the generality of
the foregoing, the Owner Trustee shall not delegate any decision with regard to
any merger, consolidation, sale of assets, the filing by the Trust of a
voluntary petition for bankruptcy or consenting to the filing of an involuntary
petition for bankruptcy against the Trust.
Section 2.08. LIABILITY OF BENEFICIARY.
Subject to Section 2.11(b) below and Article VIII hereof, the
Beneficiary shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
general corporation law of the State of
Delaware.
Section 2.09. TITLE TO TRUST PROPERTY.
Legal title to all the Trust Assets shall be vested at all times in the
Trust as a separate legal entity except where applicable law in any jurisdiction
requires title to any part of the Trust Assets to be vested in a trustee or
trustees, in which case title shall be deemed to be vested in the Owner Trustee,
a co-trustee or a separate trustee, as the case may be.
Section 2.10. SITUS OF TRUST.
The Trust will be located and administered in the State of
Delaware.
All bank accounts maintained by the Owner Trustee on behalf of the Trust shall
be located in the State of
Delaware. The Trust shall not have any employees in
any state other than Delaware; PROVIDED, HOWEVER, that nothing herein shall
restrict or prohibit the Owner Trustee from having employees within or without
the State of Delaware. Payments will be received by the Trust only in Delaware,
and payments will be made by the Trust only from Delaware. The only office of
the Trust will be at the Corporate Trust Office in Delaware.
Section 2.11. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BENEFICIARY;
CAPITAL CONTRIBUTIONS FOR SERIES D EQUIPMENT NOTES.
(a) The Beneficiary hereby represents and warrants to the Owner Trustee
that:
(i) The Beneficiary is duly incorporated, validly existing and in
good standing under the laws of the State of Minnesota, with power and authority
to own its properties with full power and authority to conduct its business as
currently owned or conducted, and to execute, deliver and perform this Agreement
and any other document relating hereto to which it is a party and to perform its
obligations as contemplated hereby and thereby.
-6-
(ii) The Beneficiary is duly qualified to do business as a foreign
corporation, in good standing and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of its property
or the conduct of its business shall require such qualifications.
(iii) The Beneficiary has the power and authority to execute,
deliver and perform this Agreement and to carry out its terms; and the
Beneficiary has full power and authority to sell and assign the property to be
sold and assigned to and deposited with the Trust and the Beneficiary has duly
authorized such sale and assignment and deposit to the Trust by all necessary
corporate action. The execution, delivery and performance of this Agreement and
any other document related hereto to which the Beneficiary is a party have been
duly authorized by the Beneficiary by all necessary corporate action. This
Agreement, and any other document executed by the Beneficiary in connection
herewith, have been duly executed and delivered and constitute the legal, valid
and binding obligations of the Beneficiary enforceable against the Beneficiary
in accordance with their terms, except as enforcement of such terms may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by the availability of equitable remedies.
(iv) The consummation of the transactions contemplated by this
Agreement and any other document related hereto to which the Beneficiary is a
party, the performance of the transactions contemplated hereby and thereby and
fulfillment of the terms hereof and thereof do not conflict with or violate any
requirements of law applicable to the Beneficiary or conflict with, result in
any breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, the certificate of
incorporation or bylaws of the Beneficiary, or any indenture, agreement or other
instrument to which the Beneficiary is a party or by which it or its properties
are bound; nor result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument; nor violate any law or, to the best of the Beneficiary's knowledge,
any order, rule or regulation applicable to the Beneficiary of any court or of
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Beneficiary or its
properties.
(v) To the Beneficiary's best knowledge, there are no proceedings
or investigations pending or threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Beneficiary or its properties: (A) asserting the invalidity of this
Agreement or any other document relating hereto to which the Beneficiary is a
party, (B) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any other document relating hereto to which
the Beneficiary is a party, or (C) seeking any determination or ruling that
might materially and adversely affect the performance by the Beneficiary of its
obligations under, or the validity or enforceability of, this Agreement or any
other document relating hereto to which the Beneficiary is a party.
(b) On or prior to each Closing Date (as defined in the related
Participation Agreement) for any Airbus A319-100 aircraft or Boeing 757-300
aircraft with respect to which a Series D Equipment Note will be issued, the
Beneficiary shall contribute to the Trust an amount in cash equal to the
principal amount of such Series D Equipment Note. The Owner Trustee is hereby
irrevocably instructed to
-7-
contribute such amount immediately upon receipt thereof to the Class D Trust so
that the Class D Trustee may purchase such Series D Equipment Note in accordance
with the terms and conditions of the Participation Agreement relating to such
aircraft. In connection with the purchase of such Series D Equipment Note, the
Trust shall instruct and direct the Class D Trustee to enter into such
Participation Agreement and perform its obligations thereunder.
ARTICLE III
Limitation on Transfer of Beneficial Interest
Section 3.01. BENEFICIAL OWNERSHIP.
To the fullest extent permitted by law, the Beneficiary shall at all
times retain sole ownership of its uncertificated beneficial ownership interest
in the Trust.
ARTICLE IV
Actions by Owner Trustee
Section 4.01. PRIOR NOTICE TO BENEFICIARY WITH RESPECT TO CERTAIN
MATTERS.
With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Beneficiary in writing of the proposed action
and the Beneficiary shall not have notified the Owner Trustee in writing prior
to the 30th day after such notice is given that the Beneficiary has withheld
consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust and the
compromise of any action, claim or lawsuit brought by or against the Trust; or
(b) the election by the Trust to file an amendment to the Certificate
of Trust (unless such amendment is required to be filed under the Business Trust
Statute).
Section 4.02. RESTRICTIONS ON BENEFICIARY POWER.
The Beneficiary shall not direct the Owner Trustee to take or to
refrain from taking any action if such action or inaction would be contrary to
any obligation of the Trust or the Owner Trustee under this Agreement or the
Pass Through
Trust Agreement or would be contrary to Section 2.03, nor shall the
Owner Trustee be obligated to follow any such direction, if given.
ARTICLE V
Application of Trust Funds; Certain Duties
-8-
Section 5.01. APPLICATION OF TRUST FUNDS.
(a) On each Distribution Date, the Owner Trustee will distribute to the
Beneficiary amounts deposited in the Trust pursuant to the Pass Through Trust
Agreement; PROVIDED, HOWEVER, that any amounts deposited in the Trust shall be
applied first, towards the payment of fees and expenses of the Trust (including
all fees not otherwise paid by the Beneficiary) and second, any remaining amount
shall be paid to the Beneficiary.
(b) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to the Beneficiary, such tax shall reduce the
amount otherwise distributable to the Beneficiary in accordance with this
Section. The Owner Trustee is hereby authorized and directed to retain from
amounts otherwise distributable to the Beneficiary sufficient funds for the
payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Trust from contesting any such tax in appropriate
proceedings and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed with
respect to the Beneficiary shall be treated as cash distributed to the
Beneficiary at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If the Owner Trustee receives an opinion from
Federal tax counsel that withholding tax is payable with respect to a
distribution, the Owner Trustee may in its sole discretion withhold such amounts
in accordance with this paragraph.
Section 5.02. METHOD OF PAYMENT.
Subject to Section 9.01(c), distributions required to be made to the
Beneficiary shall be made by wire transfer pursuant to the instructions of the
Beneficiary, in immediately available funds, to the account of the Beneficiary
at a bank or other entity having appropriate facilities therefor.
Section 5.03. NO SEGREGATION OF MONEYS; NO INTEREST.
Subject to Sections 5.01 and 5.02, moneys 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 5.04. ACCOUNTING AND REPORTS TO BENEFICIARY, INTERNAL REVENUE
SERVICE AND OTHERS.
The Owner Trustee shall deliver to the Beneficiary such information,
reports or statements as may be required by the Code and applicable Treasury
Regulations and as may be required to enable the Beneficiary to prepare its
federal and State income tax returns. Consistent with the Trust's
characterization for tax purposes as a grantor trust, the Beneficiary shall
prepare or shall cause to be prepared any tax returns required to be filed by
the Trust and shall remit such returns to the Owner Trustee at least five days
before such returns are due to be filed. The Owner Trustee, or any other such
party required by law, shall promptly sign such returns and deliver such returns
after signature to the Beneficiary and such returns shall be filed by, or at the
direction of, the Beneficiary with the appropriate tax authorities. In no event
shall the
-9-
Owner Trustee or the Beneficiary be liable for any liabilities, costs or
expenses of the Trust arising out of the application of any tax law, including
federal, State, foreign or local income or excise taxes or any other tax imposed
on or measured by income (or any interest, penalty or addition with respect
thereto or arising from a failure to comply therewith), except for any such
liability, cost or expense attributable to any act or omission by the Owner
Trustee which constitutes gross negligence or willful misconduct or if the
Beneficiary is in breach of its obligations under this Agreement.
ARTICLE VI
Authority and Duties of Owner Trustee
Section 6.01. GENERAL AUTHORITY.
The Owner Trustee is authorized and directed to execute and deliver
each certificate or other document attached as an exhibit to or contemplated by
this Agreement to which the Trust is to be a party and any amendment or other
agreement in such form as the Beneficiary shall approve, as evidenced
conclusively by the Owner Trustee's execution thereof. In addition to the
foregoing, the Owner Trustee is authorized to take all actions required of the
Trust pursuant to this Agreement.
Section 6.02. GENERAL DUTIES.
It shall be the duty of the Owner Trustee to discharge (or cause to be
discharged) all of its responsibilities pursuant to the terms of this Agreement
and to administer the Trust in the interest of the Beneficiary, in accordance
with the provisions of this Agreement.
Section 6.03. ACTION UPON INSTRUCTION.
(a) Subject to Article IV, the Beneficiary may by written instruction
direct the Owner Trustee in the management of the Trust. Such direction may be
exercised at any time by written instruction of the Beneficiary pursuant to
Article IV.
(b) The Owner Trustee shall not be required to take any action
hereunder if the Owner Trustee shall have reasonably determined, or shall have
been advised by counsel, that such action is likely to result in liability on
the part of the Owner Trustee or is contrary to the terms hereof or is otherwise
contrary to law.
(c) Whenever the Owner Trustee is (i) unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement, (ii) unsure as to the application of any provision of this Agreement
or any such provision is ambiguous as to its application, or is, or appears to
be, in conflict with any other applicable provision or (iii) in the event that
this Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the Beneficiary
requesting instruction and, to the extent that the
-10-
Owner Trustee acts or refrains from acting in good faith in accordance with any
such instruction received, the Owner Trustee shall not be liable, on account of
such action or inaction, to any Person. If the Owner Trustee shall not have
received appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Agreement, as it
shall deem to be in the best interests of the Beneficiary, and shall have no
liability to any Person for such action or inaction.
Section 6.04. NO DUTIES EXCEPT AS SPECIFIED IN AGREEMENT OR
INSTRUCTIONS.
The Owner Trustee shall not have any duty or obligation to manage, make
any payment with respect to, register, record, sell, dispose of or otherwise
deal with the Trust Assets, or to otherwise take or refrain from taking any
action under, or in connection with, any document contemplated hereby to which
the Owner Trustee is a party, except as expressly provided by the terms of this
Agreement or in any document or written instruction received by the Owner
Trustee pursuant to Section 6.03; and no implied duties or obligations shall be
read into this Agreement against the Owner Trustee. The Owner Trustee shall have
no responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection of
any security interest or lien granted to it hereunder or to prepare or file any
Securities and Exchange Commission filing for the Trust or to record this
Agreement. Wilmington Trust Company, in its individual capacity, nevertheless
agrees that it will, at its own cost and expense, promptly take all action as
may be necessary to discharge any liens on any part of the Trust Assets that
result from actions by, or claims against, Wilmington Trust Company, in its
individual capacity, that are not related to the ownership or the administration
of the Trust Assets.
Section 6.05. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS.
The Owner Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the Trust Assets except (i) in accordance with
the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement and (iii) in accordance with any document or
instruction delivered to the Owner Trustee pursuant to Section 6.03.
Section 6.06. RESTRICTIONS.
(a) The Owner Trustee shall not take any action (a) that is
inconsistent with the purposes of the Trust set forth in Section 2.03 or (b)
that, to the actual knowledge of a responsible officer of the Owner Trustee,
would result in the Trust's becoming taxable as a corporation for federal income
tax purposes.
(b) The Owner Trustee agrees that (i) to the full extent permitted by
law, it will not transfer any Trust Assets prior to the Cut-Off Date and (ii) it
will not transfer any Trust Assets to the Beneficiary or any Affiliate of the
Beneficiary.
(c) The Beneficiary shall not direct the Owner Trustee to take action
that would violate the provisions of this Section.
-11-
Section 6.07. NOT RESPONSIBLE FOR RECITALS OR SUFFICIENCY OF AGREEMENT.
The recitals contained in this Agreement shall be taken as the
statements of the Beneficiary, and the Owner Trustee does not assume any
responsibility for their correctness. The Owner Trustee makes no representations
as to the value or condition of the property of the Trust or any part thereof.
The Owner Trustee makes no representations as to the validity or sufficiency of
this Agreement.
ARTICLE VII
Concerning Owner Trustee
Section 7.01. ACCEPTANCE OF TRUSTS AND DUTIES.
The Owner Trustee accepts the trusts hereby created and agrees to
perform its duties hereunder with respect to such trusts, but only upon the
terms of this Agreement. The Owner Trustee also agrees to disburse all moneys
actually received by it constituting part of the Trust Assets upon the terms of
this Agreement. The Owner Trustee shall not be answerable or accountable
hereunder under any circumstances, except (i) for its own willful misconduct or
gross negligence or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 7.03 expressly made by Wilmington Trust Company.
In particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) The Owner Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Owner Trustee;
(b) The Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Beneficiary;
(c) No provision of this Agreement shall require the Owner Trustee to
expend or risk funds or otherwise incur any financial liability in the
performance of any of its rights or powers hereunder if the Owner Trustee shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(d) Under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under this Agreement or the Certificates
issued under the Pass Through Trust Agreement;
(e) The Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Agreement or for the due execution hereof by the
Beneficiary or for the form, character, genuineness, sufficiency, value or
validity of any of the Trust Assets, and the Owner Trustee shall in no event
assume or incur any liability, duty or obligation to the Beneficiary, other than
as expressly provided for herein ;
(f) The Owner Trustee shall not be liable for the default or misconduct
of the Beneficiary
-12-
hereunder, or the Trustee under the Pass Through Trust Agreement, and the Owner
Trustee shall have no obligation or liability to perform the obligations of the
Trust under this Agreement that are required to be performed by the Beneficiary
hereunder; and
(g) The Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under any this Agreement, at the request, order or
direction of the Beneficiary, unless the Beneficiary has offered to the Owner
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or thereby. The
right of the Owner Trustee to perform any discretionary act enumerated in this
Agreement not be construed as a duty, and the Owner Trustee shall not be
answerable for other than its gross negligence or willful misconduct in the
performance of any such act.
Section 7.02. FURNISHING OF DOCUMENTS.
The Owner Trustee shall furnish to the Beneficiary, promptly upon
receipt of a written request therefor, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Owner Trustee under this Agreement.
Section 7.03. REPRESENTATIONS AND WARRANTIES.
The Owner Trustee hereby represents and warrants to the Beneficiary,
that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution or the delivery by it of this Agreement, nor
the consummation by it of the transactions contemplated hereby, nor compliance
by it with any of the terms or provisions hereof will contravene any federal or
Delaware law, governmental rule or regulation governing the banking or trust
powers of the Owner Trustee or any judgment or order binding on it or constitute
any default under its charter documents or bylaws.
Section 7.04. RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other document or paper believed by it to
be genuine or believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such
-13-
body and that the same is in full force and effect. As to any fact or matter the
method of determination of which is not specifically prescribed herein, the
Owner Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer or other authorized officers
of the relevant party, 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.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations hereunder, the Owner Trustee (i)
may act directly or through its agents or attorneys pursuant to agreements
entered into with any of them, and the Owner Trustee shall not be liable for the
conduct or misconduct of such agents or attorneys if such agents or attorneys
shall have been selected by the Owner Trustee with reasonable care, and (ii) may
consult with counsel, accountants and other skilled Persons to be selected in
good faith 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
written opinion or advice of any such counsel, accountants or other such
Persons.
Section 7.05. NOT ACTING IN INDIVIDUAL CAPACITY.
Except as otherwise expressly provided in this Article VII, in
accepting the trusts hereby created Wilmington Trust Company acts solely as
Owner Trustee hereunder and not in its individual capacity, and all Persons
having any claim against the Owner Trustee by reason of the transactions
contemplated by this Agreement shall look only to the Trust Assets for payment
or satisfaction thereof. All rights, protections and indemnities afforded to the
Owner Trustee under this Agreement shall pertain to Wilmington Trust Company in
its individual capacity.
Section 7.06. OWNER TRUSTEE NOT LIABLE FOR TRUST ASSETS.
The recitals contained herein shall be taken as the statements of the
Beneficiary, and the Owner Trustee assumes no responsibility for the correctness
thereof. The Owner Trustee makes no representations as to the validity or
sufficiency of the Pass Through Trust Agreement or any related documents. The
Owner Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of the Class D Certificate
issued under the Pass Through Trust Agreement or its ability to generate the
payments to be distributed to the Beneficiary under this Agreement, including,
without limitation: the existence, condition and ownership of any portion of the
Trust Assets; the existence and enforceability of any insurance thereon; the
existence and contents of any portion of the Trust Assets; the validity of the
assignment of any portion of the Trust Assets to the Trust or of any intervening
assignment; the validity of the transfer of any portion of the Trust Assets to
the Trust or of any intervening transfer or assignment; the compliance by the
Beneficiary with any warranty or representation made under this Agreement or the
accuracy of any such warranty or representation, or any action of the
Beneficiary, taken in the name of the Owner Trustee.
ARTICLE VIII
Compensation of Owner Trustee
-14-
Section 8.01. OWNER TRUSTEE'S FEES AND EXPENSES.
The Owner Trustee shall receive as compensation for its services
hereunder such fees as have been separately agreed upon before the date hereof
between the Beneficiary and the Owner Trustee, and the Owner Trustee shall be
entitled to be reimbursed for its other reasonable expenses hereunder, including
the reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
Section 8.02. INDEMNIFICATION.
To the extent funds in cash or cash equivalents are unavailable from
Trust Assets, the Beneficiary shall be liable as primary obligor for, and shall
indemnify the Owner Trustee (in its individual and Trust capacities) and its
successors, assigns, agents and servants (collectively, the "INDEMNIFIED
PARTIES") from and against, any and all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all reasonable costs,
expenses and disbursements (including reasonable legal fees and expenses) of any
kind and nature whatsoever (collectively, "EXPENSES") which may at any time be
imposed on, incurred by, or asserted against any Indemnified Party in any way
relating to or arising out of this Agreement, the Trust Assets, the
administration of the Trust Assets or the action or inaction of the Owner
Trustee hereunder or thereunder, except only that the Beneficiary shall not be
liable for or required to indemnify an Indemnified Party from and against
Expenses arising or resulting from any of the matters described in clauses (i)
and (ii) of the third sentence of Section 7.01. The indemnities contained in
this Section shall survive the resignation or removal of the Owner Trustee or
the termination of this Agreement. In any event of any claim, action or
proceeding for which indemnity will be sought pursuant to this Section, the
Indemnified Party's choice of legal counsel shall be subject to the approval of
the Beneficiary, which approval shall not be unreasonably withheld.
Section 8.03. PAYMENTS TO OWNER TRUSTEE.
Any amounts paid to the Owner Trustee pursuant to this Article VIII
shall be deemed not to be a part of the Trust Assets immediately after such
payment.
ARTICLE IX
Termination of Agreement
Section 9.01. TERMINATION OF AGREEMENT.
(a) The Trust shall dissolve upon the final distribution by the Owner
Trustee of all moneys or other property or proceeds of the Trust Assets in
accordance with the terms of Article V. The bankruptcy, liquidation,
dissolution, death or incapacity of the Beneficiary shall not (x) operate to
terminate this Agreement or the Trust or (y) entitle the Beneficiary's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part
-15-
of the Trust or Trust Assets or (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), the Beneficiary shall not be
entitled to dissolve, revoke or terminate the Trust.
(c) Notice of any dissolution of the Trust, specifying the Distribution
Date upon which the Beneficiary shall receive payment of the Final Distribution,
shall be given by the Owner Trustee by letter to the Beneficiary and mailed
within five Business Days of receipt of notice of the termination of the Class D
Trust pursuant to the Pass Through Trust Agreement, stating (i) the Distribution
Date upon or with respect to which final payment shall be made to the
Beneficiary and (ii) the amount of any such final payment.
(d) Upon the winding up of the Trust and payment of all liabilities of
the Trust in accordance with Section 3808 of the Business Trust Statute, the
Owner Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute. Thereupon, this
Agreement (other than Article VIII) and the Trust shall terminate.
(e) Each of the Class D Trustee, the Other Trustee and the holders of
the pass through certificates issued under the Other Agreement shall be a third
party beneficiary of this Article IX. No amendment of this Agreement which could
result in the Trust being terminated other than in accordance with this Article
IX shall be effective without the prior written consent of the Class D Trustee
and the Other Trustee.
ARTICLE X
Successor Owner Trustees and Additional Owner Trustees
Section 10.01. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE.
The Owner Trustee shall at all times be a corporation satisfying the
provisions of Section 3807(a) of the Business Trust Statute; authorized to
exercise corporate trust powers; having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or state
authorities. If such corporation shall publish reports of condition at least
annually pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 10.02.
Section 10.02. RESIGNATION OR REMOVAL OF OWNER TRUSTEE.
The Owner Trustee may at any time resign and be discharged from the
trusts hereby created by
-16-
giving written notice thereof to the Beneficiary. Upon receiving such notice of
resignation, the Beneficiary shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign after
written request therefor by the Beneficiary, or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Beneficiary shall remove the Owner Trustee. If the
Beneficiary shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Beneficiary shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee, and shall pay all fees owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Beneficiary shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
Section 10.03. SUCCESSOR OWNER TRUSTEE.
Any successor Owner Trustee appointed pursuant to Section 10.02 shall
execute, acknowledge and deliver to the Beneficiary and to its predecessor Owner
Trustee an instrument accepting such appointment under this Agreement, and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective, and such successor Owner Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like effect
as if originally named as Owner Trustee. The predecessor Owner Trustee shall
upon payment of its fees and expenses deliver to the successor Owner Trustee all
documents and statements and monies held by it under this Agreement; and the
Beneficiary and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Owner Trustee all such rights,
powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Beneficiary shall mail notice thereof to the Rating Agencies.
If the Beneficiary shall fail to mail such notice
-17-
within 10 days after acceptance of such appointment by the successor Owner
Trustee, the successor Owner Trustee shall cause such notice to be mailed.
The successor Owner Trustee shall file an amendment to the Certificate
of Trust with the Secretary of State identifying the name and principal place of
business in the State of Delaware of such successor Owner Trustee.
Section 10.04. MERGER OR CONSOLIDATION OF OWNER TRUSTEE.
Any Person into which the Owner Trustee may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
Person succeeding to all or substantially all of the corporate trust business of
the Owner Trustee, shall be the successor of the Owner Trustee hereunder,
without the execution or filing of any instrument or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding;
PROVIDED that such corporation shall be eligible pursuant to Section 10.01 and,
PROVIDED, FURTHER, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
Section 10.05. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Assets may at the time be located, the Beneficiary and the
Owner Trustee acting jointly shall have the power and shall execute and deliver
all instruments to appoint one or more Persons to act as co-trustee, jointly
with the Owner Trustee, or as separate trustee or separate trustees, of all or
any part of the Trust Assets, and to vest in such Person, in such capacity, such
title to the Trust or any part thereof and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Beneficiary and the Owner Trustee may consider necessary or desirable. If the
Beneficiary shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 10.01, and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.03
except for a notice of such appointment to be delivered by the Owner Trustee to
the Rating Agencies.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations
-18-
(including the holding of title to the Trust Assets or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Owner Trustee;
(b) No trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement; and
(c) The Beneficiary and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Beneficiary.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co- trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor co-trustee or separate trustee.
ARTICLE XI
Miscellaneous
Section 11.01. SUPPLEMENTS AND AMENDMENTS.
This Agreement may be amended by the Beneficiary and the Owner Trustee
to cure any ambiguity and to correct or supplement any provisions in this
Agreement. This Agreement may also be amended by the parties hereto, with prior
written notice to the Rating Agencies, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions herein;
PROVIDED, HOWEVER, no amendment or waiver of Sections 2.11(b) or 9.01 of this
Agreement shall be effective without the prior written consent of the Class D
Trustee and the Other Trustee.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
-19-
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and
conclusively rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement. The Owner Trustee may,
but shall not be obligated to, enter into any such amendment that affects the
Owner Trustee's own rights, duties or immunities under this Agreement or
otherwise.
In connection with the execution of any amendment to any other
agreement to which the Trust is a party, the Owner Trustee shall be entitled to
receive and conclusively rely upon an Opinion of Counsel to the effect that such
amendment is authorized or permitted by this Agreement and that all conditions
precedent for the execution and delivery thereof by the Trust or the Owner
Trustee, as the case may be, have been satisfied.
Section 11.02. NO LEGAL TITLE TO TRUST ASSETS IN BENEFICIARY.
The Beneficiary shall not have legal title to any part of the Trust
Assets. The Beneficiary shall be entitled to receive distributions with respect
to their respective ownership interests therein only in accordance with Articles
V and IX. No transfer, by operation of law or otherwise, of any right, title or
interest of the Beneficiary to and in its ownership interest in the Trust Assets
shall operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any part
of the Trust Assets.
Section 11.03. LIMITATIONS ON RIGHTS OF OTHERS.
The provisions of this Agreement are solely for the benefit of the
Owner Trustee and the Beneficiary, and nothing in this Agreement, whether
express or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Trust Assets or under or in respect of
this Agreement or any covenants, conditions or provisions contained herein;
provided, however, each of the Class D Trustee, the Other Trustee and the
holders of the pass through certificate issued under the Other Agreement shall
be a third party beneficiary with respect to this Agreement and shall be
entitled to enforce the provisions hereof to the same extent as if it were a
party hereto.
Section 11.04. NOTICES.
Unless otherwise expressly specified or permitted by the terms hereof,
all notices shall be in writing and shall be deemed given upon receipt by the
intended recipient or three Business Days after mailing if mailed by certified
mail, postage prepaid (except that notice to the Owner Trustee shall be deemed
given only upon actual receipt by the Owner Trustee), (i) if to the Owner
Trustee, addressed to the Corporate Trust Office, Attention: Corporate Trust
Administration; (ii) if to the Beneficiary, addressed to
____________________________________________, or (iii) as to each party, at such
other address as shall be designated by such party in a written notice to each
other party.
Section 11.05 SEVERABILITY.
-20-
Any provision of this Agreement that 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 11.05. SEPARATE COUNTERPARTS.
This 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 11.06. SUCCESSORS AND ASSIGNS.
All covenants and agreements contained herein shall be binding upon,
and inure to the benefit of, each of the Owner Trustee and its successors and
assigns and the Beneficiary and its successors and permitted assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by the Beneficiary shall bind the successors and assigns of
the Beneficiary.
Section 11.07. NO PETITION.
The Owner Trustee and the Beneficiary, by entering into this Agreement,
hereby covenant and agree that they will not at any time institute against the
Trust, or join in any institution against the Trust of, any bankruptcy
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations relating to the Trust Assets or this
Agreement. Nothing herein shall prohibit the Owner Trustee from participating in
or filing proofs of claim in respect of any such proceeding instituted by any
other Person.
Section 11.08. NO RECOURSE.
The Beneficiary by entering into this Agreement acknowledges that it
holds a beneficial interest in the Trust only and not in interests in or
obligations of the Owner Trustee or any Affiliate thereof and no recourse may be
had against such parties or their assets.
Section 11.09. HEADINGS.
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 11.10. GOVERNING LAW.
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE
-21-
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 11.11. INTEGRATION.
This Agreement represents the agreement of the Beneficiary and the
Owner Trustee with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Beneficiary or the
Owner Trustee relating to the subject matter hereof not expressly set forth or
referred to herein.
-22-
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
WILMINGTON TRUST COMPANY
By:
--------------------------------------
Name:
Title:
NORTHWEST AIRLINES, INC.
By:
--------------------------------------
Name:
Title:
-23-
EXHIBIT A
FORM OF CERTIFICATE OF TRUST OF
NWA CLASS D CERTIFICATE TRUST
This Certificate of Trust of NWA Class D Certificate Trust
(the "TRUST"), is being duly executed and filed by Wilmington Trust Company, a
Delaware banking corporation, as trustee, to form a business trust under the
Delaware Business Trust Act (12 DEL. CODE, ss. 3801 ET SEQ.) (the "ACT").
1. NAME. The name of the business trust formed hereby is NWA
Class D Certificate Trust.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust in the State of Delaware is Wilmington Trust Company,
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be
effective upon its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate of Trust in accordance with Section 3811(a)(1) of the Act.
Wilmington Trust Company,
not in its individual capacity but solely
as owner trustee
By:
-------------------------------------
Name:
Title:
A-1
