Exhibit 4(a)(1)
==============================================================================
TRUST AGREEMENT
[NW 1997 A]
Dated as of September 25, 1997
between
FINOVA CAPITAL CORPORATION,
Owner Participant
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Owner Trustee
One British Aerospace Avro 146-RJ85A
Aircraft
=============================================================================
TRUST AGREEMENT
[NW 1997 A]
This TRUST AGREEMENT [NW 1997 A] dated as of September 25, 1997
between FINOVA CAPITAL CORPORATION, a Delaware corporation (the "Original Owner
Participant"), and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association (in its individual capacity, "FSB") and otherwise not in
its individual capacity but solely as trustee hereunder (herein in such
capacity with its permitted successors and assigns called the "Owner
Trustee");
W I T N E S S E T H:
ARTICLE I
DEFINITIONS AND TERMS
SECTION 1.01. Certain Definitions. Unless the context shall
otherwise require and except as contained in this Section 1.01, the
capitalized terms used herein shall have the respective meanings assigned
thereto in the Lease (as hereinafter defined) for all purposes hereof. All
definitions contained in this Section 1.01 shall be equally applicable to
both the singular and plural forms of the terms defined. For all purposes of
this Trust Agreement the following terms shall have the following meanings:
"Excluded Payments" has the meaning ascribed to such term in the
Trust Indenture.
"Indenture Event of Default" has the meaning which the term "Event
of Default" has in the Trust Indenture.
"Lease" means that certain Lease Agreement [NW 1997 A], 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 Purchase Agreement Assignment, the Residual
Agreement, the ▇▇▇▇ of Sale and the FAA ▇▇▇▇ of Sale, including, without
limitation, all amounts of Basic Rent and Supplemental Rent including without
limitation insurance proceeds (other than insurance proceeds payable to or
for the benefit of the Owner Trustee, for its own account or in its
individual capacity, the Owner Participant, the Loan Participants or the
Indenture Trustee) and requisition, indemnity or other payments of any kind
for or with respect to the Aircraft (except amounts owing to the Owner
Participant, to the Indenture Trustee, to the Owner Trustee, in its
individual capacity, or to the Loan Participants or any other holder of a
Secured Certificate, or to any of their respective directors, officers,
employees, servants and agents, pursuant to Section 7 of the Participation
Agreement). Notwithstanding the foregoing, "Trust Estate" shall not include
any Excluded Payments.
"Trust Indenture Estate" has the meaning ascribed to such term in
the Trust Indenture.
-2-
"Trust Office" shall mean the principal corporate trust office of
the Owner Trustee at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Department, or the principal corporate trust
office of any successor Owner Trustee.
"Trust Supplement" means a supplement to the Trust Indenture and to
this Trust Agreement in substantially the form of Exhibit A to the Trust
Indenture which shall particularly describe the Aircraft, and any Replacement
Airframe and Replacement Engine included in the property of the Owner Trustee
covered by this Trust Agreement.
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.
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 ▇▇▇▇ of Sale;
(b) accept from Lessee the delivery of the ▇▇▇▇ of Sale and the FAA
▇▇▇▇ of Sale;
(c) cause the Aircraft to be leased to Lessee under the Lease, and
in furtherance thereof execute and deliver a Lease Supplement covering the
Aircraft;
-3-
(d) execute and deliver the Trust Supplement covering the Aircraft;
(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
▇▇▇▇ 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. Section
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
-4-
employee or employees of Lessee) to accept delivery of the Replacement
Airframe and Replacement Engines, if any, or the Replacement Engines;
(b) accept from Lessee or other vendor of the Replacement Airframe
and Replacement Engines, if any, or the Replacement Engine a ▇▇▇▇ of sale
or bills of sale (if tendered), and the invoice, if any, with respect to
the Replacement Airframe and Replacement Engines, if any, or the
Replacement Engine being furnished pursuant to Section 10(a) or (b) of
the Lease;
(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):
-5-
(a) accept from Lessee the ▇▇▇▇ of sale with respect to such engine
contemplated by such Section 5(b) (if tendered);
(b) transfer its interest in (without recourse except as to
obligations in respect of Lessor Liens, including for this purpose Liens
that would be Lessor Liens but for the proviso in the definition of Lessor
Liens) and to an Engine to Lessee as contemplated by such Section 5(b); and
(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
-6-
Indenture shall, if paid to the Owner Trustee, be distributed by the Owner
Trustee to the Owner Participant in accordance with the provisions of Article
III of the Trust Indenture.
(d) Excluded Payments. Any Excluded Payments received by the
Owner Trustee shall be paid by the Owner Trustee to the Person to whom such
Excluded Payments are payable under the provisions of the Participation
Agreement, the Tax Indemnity Agreement or the Lease.
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 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
-7-
inconsistent with the provisions of the Trust Indenture, as it shall deem
advisable in the best interests of the Owner Participant. For all purposes
of this Trust Agreement, the Lease and the other Operative Documents, in the
absence of actual knowledge by an officer of FSB in the Corporate Trust
Department, the Owner Trustee shall not be deemed to have knowledge of a
Lease Event of Default, 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.
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 of 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.
-8-
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
Section 5.01 or 5.02, and no implied duties or obligations shall be read into
this Trust Agreement against the Owner Trustee. FSB agrees that it will, in
its individual capacity and at its own cost or expense (but without any right
of indemnity in respect of any such cost or expense under Section 7.01
hereof) promptly take such action as may be necessary to duly discharge and
satisfy in full all Lessor Liens which it is required to discharge pursuant
to Section 8(h) of the Participation Agreement and otherwise comply with the
terms of said Section binding on it.
SECTION 5.05. Satisfaction of Conditions Precedent. Anything
herein to the contrary notwithstanding, the Owner Trustee shall comply with
the provisions of Section 3.01 hereof upon the satisfaction, to the
satisfaction of special counsel for the Owner Trustee, of all the applicable
conditions precedent specified in 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. FSB accepts the
trusts hereby created and agrees to perform the same but only upon the terms
hereof applicable to it. The Owner Trustee also agrees to receive and
disburse all monies received by it constituting part of the Trust Estate upon
the terms hereof. FSB shall not be answerable or accountable under any
circumstances, except (a) for its own willful misconduct or gross negligence,
(b) for performance of the terms of the last sentence of Section 5.04 hereof,
(c) for its or the Owner Trustee's failure to use ordinary care to disburse
funds and (d) for liabilities that may result from the inaccuracy of any
representation or warranty of it (or from the failure by it to perform any
covenant) in Section 6.03 hereof, in Section 6.03 of the Trust Indenture, in
Section 4 of the Lease or in Section 8(c), 8(d) and 8(v) of the Participation
Agreement.
-9-
SECTION 6.02. Absence of Certain Duties. Except in accordance with
written instructions furnished pursuant to Section 5.02 hereof and except as
provided in, and without limiting the generality of, Section 5.04 hereof and
the last sentence of Section 9.01(b) hereof, neither the Owner Trustee nor
FSB shall have any duty (i) to see to any recording or filing of any
Operative Document or of any supplement to any thereof or to see to the
maintenance of any such recording or filing or any other filing of reports
with the Federal Aviation Administration or other governmental agencies,
except that FSB, in its individual capacity, shall comply with the reporting
requirements set forth in 14 C.F.R. Section 47.45 or any successor provision
and the Owner Trustee shall, to the extent that information for that purpose
is supplied by Lessee pursuant to any of the Operative Documents, complete
and timely submit (and furnish the Owner Participant with a copy of) any and
all reports relating to the Aircraft which may from time to time be required
by the Federal Aviation Administration or any government or governmental
authority having jurisdiction, (ii) to see to any insurance on the Aircraft
or to effect or maintain any such insurance, whether or not Lessee shall be
in default with respect thereto, other than to forward to the Owner
Participant copies of all reports and other written information which the
Owner Trustee receives from Lessee pursuant to Section 11(c) of the Lease,
(iii) to see to the payment or discharge of any tax, assessment or other
governmental charge or any lien or encumbrance of any kind owing with respect
to, assessed or levied against any part of the Trust Indenture Estate or the
Trust Estate, except as provided in Section 8 of the Participation Agreement,
or (iv) to inspect Lessee's books and records with respect to the Aircraft at
any time permitted pursuant to the Lease. Notwithstanding the foregoing, the
Owner Trustee will furnish to the Indenture Trustee and the Owner
Participant, promptly upon receipt thereof, duplicates or copies of all
reports, notices, requests, demands, certificates, financial statements and
other instruments furnished to the Owner Trustee under the Lease or any other
Operative Document.
SECTION 6.03. No Representations or Warranties as to Certain
Matters. NEITHER THE OWNER TRUSTEE NOR FSB MAKES OR SHALL BE DEEMED TO HAVE
MADE (a) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE,
VALUE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE OF
THE AIRCRAFT OR ANY PART THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY
WITH RESPECT TO THE AIRCRAFT WHATSOEVER, except that FSB in its individual
capacity warrants that on the Delivery Date the Owner Trustee shall have
received whatever title was conveyed to it by Lessee and that the Aircraft
shall during the Term be free of Lessor Liens attributable to it, or (b) any
representation or warranty as to the validity, legality or enforceability of
this Trust Agreement or any Operative Document to which the Owner Trustee is
a party, or any other document or instrument, or as to the correctness of any
statement contained in any thereof except to the extent that any such
statement is expressly made herein or therein as a representation by FSB in
its individual capacity or by the Owner Trustee and except that FSB in its
individual capacity hereby represents and warrants that this Trust Agreement
has been, and (assuming due authorization, execution and delivery by the
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
-10-
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 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.
-11-
SECTION 6.07. Fees; Compensation. Except as provided in Section
5.03 or 7.01 hereof, the Owner Trustee agrees that it shall have no right
against the Owner Participant or (subject to the provisions of the Trust
Indenture) the Trust Estate for any fee as compensation for its services
hereunder; provided, however, that the Owner Trustee shall have a lien upon
the Trust Estate (subject, however, to the lien of the Trust Indenture) for
any such fee not paid by Lessee as contemplated by the last paragraph of
Section 7(c) of the Participation Agreement.
SECTION 6.08. Tax Returns. The Owner Trustee shall be responsible
for the keeping of all appropriate books and records relating to the receipt
and disbursement of all monies under this Trust Agreement or any agreement
contemplated hereby. The Owner Participant shall be responsible for causing
to be prepared and filed all income tax returns required to be filed by the
Owner Participant. The Owner Trustee shall be responsible for causing to be
prepared, at the request and expense of the Owner Participant, all income tax
returns required to be filed with respect to the trust created hereby and
shall execute and file such returns. The Owner Participant or the Owner
Trustee, as the case may be, upon request, will furnish the Owner Trustee or
the Owner Participant, as the case may be, with all such information as may
be reasonably required from the Owner Participant or the Owner Trustee, as
the case may be, in connection with the preparation of such income tax
returns.
ARTICLE VII
INDEMNIFICATION OF OWNER TRUSTEE BY OWNER PARTICIPANT
SECTION 7.01. Owner Participant to Indemnify Owner Trustee. The
Owner Participant hereby agrees, whether or not any of the transactions
contemplated hereby shall be consummated, to assume liability for, and hereby
indemnify, protect, save and keep harmless FSB in its individual capacity and
its successors, assigns, legal representatives, agents and servants, from and
against any and all liabilities, obligations, losses, damages, penalties,
taxes (excluding any taxes payable by FSB in its individual capacity on or
measured by any compensation received by FSB in its individual capacity for
its services hereunder or in connection with the transactions contemplated by
the Operative Documents), claims, actions, suits, costs, expenses or
disbursements (including, without limitation, reasonable ongoing fees of the
Owner Trustee, reasonable legal fees and expenses, and including without
limitation any liability of an owner, any strict liability and any liability
without fault) of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against FSB in its individual capacity (whether or
not also indemnified against by Lessee under the Lease or under the
Participation Agreement or also indemnified against by any other person but
only to the extent not otherwise paid or reimbursed by Lessee or such other
person) in any way relating to or arising out of this Trust Agreement or any
of the Operative Documents or the enforcement of any of the terms of any
thereof, or in any way relating to or arising out of the manufacture,
purchase, acceptance, nonacceptance, rejection, ownership, delivery, lease,
possession, use, operation, condition, sale, return or other disposition of
the Aircraft (including, without limitation, latent and other defects,
whether or not discoverable, and any claim for patent, trademark or copyright
infringement), or in any way relating to or arising out of the administration
of the Trust Estate or the action or inaction of the Owner Trustee or FSB in
its individual capacity hereunder, except
-12-
(a) in the case of willful misconduct or gross negligence on the part of the
Owner Trustee or FSB in its individual capacity in the performance or
non-performance of its duties hereunder or (b) those resulting from the
inaccuracy of any representation or warranty of FSB in its individual
capacity (or from the failure of FSB in its individual capacity to perform
any covenant) in Section 6.03 hereof, in Section 6.03 of the Trust Indenture
or, with respect to representations or warranties of FSB in its individual
capacity only, in Section 4 of the Lease, in Section 8(c), Section 8(d) or
Section 8(v) of the Participation Agreement or in any of the other Operative
Documents or (c) as may result from a breach by FSB in its individual
capacity of its covenants in the last sentence of Section 5.04 hereof or (d)
in the case of the failure to use ordinary care on the part of the Owner
Trustee or FSB in its individual capacity in the disbursement of funds. The
indemnities contained in this Section 7.01 extend to FSB only in its
individual capacity and shall not be construed as indemnities of the Trust
Indenture Estate or the Trust Estate (except to the extent, if any, that FSB
in its individual capacity has been reimbursed by the Trust Indenture Estate
or the Trust Estate for amounts covered by the indemnities contained in this
Section 7.01). The indemnities contained in this Section 7.01 shall survive
the termination of this Trust Agreement. In addition, if necessary, FSB in
its individual capacity shall be entitled to indemnification from the Trust
Estate, subject to the Lien of the Trust Indenture, for any liability,
obligation, loss, damage, penalty, tax, claim, action, suit, cost, expense or
disbursement indemnified against pursuant to this Section 7.01 to the extent
not reimbursed by Lessee, the Owner Participant or others, but without
releasing any of them from their respective agreements of reimbursement; and
to secure the same FSB in its individual capacity shall have a Lien on the
Trust Estate, subject to the Lien of the Trust Indenture, which shall be
prior to any interest therein of the Owner Participant. The payor of any
indemnity under this Article VII shall be subrogated to any right of the
person indemnified in respect of the matter as to which such indemnity was
paid.
ARTICLE VIII
TRANSFER OF THE OWNER PARTICIPANT'S INTEREST
SECTION 8.01. Transfer of Interests. All provisions of Section
8(n) of the Participation Agreement shall (with the same force and effect as
if set forth in full, mutatis mutandis, in this Section 8.01) be applicable
to any assignment, conveyance or other transfer by any Owner Participant of
its right, title or interest in and to the Participation Agreement, the Trust
Estate or this Trust Agreement.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES: CO-TRUSTEES
SECTION 9.01. Resignation of Owner Trustee; Appointment of
Successor. (a) Resignation or Removal. The Owner Trustee or any successor
Owner Trustee (i) shall resign if required to do so pursuant to Section 8(c)
of the Participation Agreement and (ii) may resign at any time without cause
by giving at least sixty (60) days' prior written notice to the
-13-
Owner Participant, the Indenture Trustee (so long as the Lien of the Trust
Indenture has not been fully discharged) and Lessee (so long as the Lease is
in effect), such resignation to be effective upon the acceptance of
appointment by the successor Owner Trustee under Section 9.01(b) hereof. In
addition, the Owner Participant may at any time remove the Owner Trustee
without cause by a notice in writing delivered to the Owner Trustee, the
Indenture Trustee (so long as the Lien of the Trust Indenture has not been
fully discharged) and Lessee (so long as the Lease is in effect), such
removal to be effective upon the acceptance of appointment by the successor
Owner Trustee under Section 9.01(b) hereof. In the case of the resignation
or removal of the Owner Trustee, the Owner Participant may appoint a
successor Owner Trustee by an instrument signed by the Owner Participant. If
a successor Owner Trustee shall not have been appointed within thirty (30)
days after such notice of resignation or removal, the Owner Trustee, the
Owner Participant, Lessee or the Indenture Trustee may apply to any court of
competent jurisdiction to appoint a successor Owner Trustee to act until such
time, if any, as a successor shall have been appointed as above provided.
Any successor Owner Trustee so appointed by such court shall immediately and
without further act be superseded by any successor Owner Trustee appointed as
above provided.
(b) Execution and Delivery of Documents, etc. Any successor Owner
Trustee, however appointed, shall execute and deliver to the predecessor
Owner Trustee and the Owner Participant an instrument accepting such
appointment, and thereupon such successor Owner Trustee, without further act,
shall become vested with all the estates, properties, rights, powers, duties
and trusts of the predecessor Owner Trustee in the trusts hereunder with like
effect as if originally named the Owner Trustee herein; but nevertheless,
upon the written request of such successor Owner Trustee, such predecessor
Owner Trustee shall execute and deliver an instrument transferring to such
successor Owner Trustee, upon the trusts herein expressed, all the estates,
properties, rights, powers and trusts of such predecessor Owner Trustee, and
such predecessor Owner Trustee shall duly assign, transfer, deliver and pay
over to such successor Owner Trustee all monies or other property then held
by such predecessor Owner Trustee upon the trusts herein expressed. Upon the
appointment of any successor Owner Trustee hereunder, the predecessor Owner
Trustee will execute such documents as are provided to it by such successor
Owner Trustee and will take such further actions as are requested of it by
such successor Owner Trustee as are reasonably required to cause registration
of the Aircraft included in the Trust Estate to be transferred upon the
records of the Federal Aviation Administration, or other governmental
authority having jurisdiction, into the name of the successor Owner Trustee.
(c) Qualification. Any successor Owner Trustee, however
appointed, shall be a Citizen of the United States without making use of a
voting trust, voting powers agreement or similar arrangement and shall also
be a bank or trust company organized under the laws of the United States or
any state thereof having a combined capital and surplus of at least
$100,000,000, if there be such an institution willing, able and legally
qualified to perform the duties of the Owner Trustee hereunder upon
reasonable or customary terms.
(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
-14-
transferred, shall, subject to the terms of Section 9.01(c) hereof, be the Owner
Trustee hereunder without further act.
SECTION 9.02. Co-Trustees and Separate Trustees. If at any time it
shall be necessary or prudent in order to conform to any law of any
jurisdiction in which all or any part of the Trust Estate is located, or the
Owner Trustee being advised by counsel shall determine that it is so
necessary or prudent in the interest of the Owner Participant or the Owner
Trustee, or the Owner Trustee shall have been directed to do so by the Owner
Participant, the Owner Trustee and the Owner Participant shall execute and
deliver an agreement supplemental hereto and all other instruments and
agreements necessary or proper to constitute another bank or trust company or
one or more persons (any and all of which shall be a Citizen of the United
States without making use of a voting trust, voting powers agreement or
similar arrangement) approved by the Owner Trustee and the Owner Participant,
either to act as co-trustee, jointly with the Owner Trustee, or to act as
separate trustee hereunder (any such co-trustee or separate trustee being
herein sometimes referred to as an "additional trustee"). In the event an
Indenture Event of Default not arising from a Lease Event of Default shall
occur and be continuing, the Owner Trustee may act under the foregoing
provisions of this Section 9.02 without the concurrence of the Owner
Participant; and the Owner Participant hereby appoints the Owner Trustee its
agent and attorney-in-fact to act for it under the foregoing provisions of
this Section 9.02 in such contingency.
Every additional trustee hereunder shall, to the extent permitted
by law, be appointed and act, and the Owner Trustee and its successors shall
act, subject to the following provisions and conditions:
(A) all powers, duties, obligations and rights conferred upon the
Owner Trustee in respect of the custody, control and management of monies,
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;
-15-
(E) the Owner Participant, at any time, by an instrument in writing
may remove any such additional trustee unless such additional trustee was
appointed by the Owner Trustee without the concurrence of the Owner
Participant during the occurrence of an Indenture Event of Default not
arising from a Lease Event of Default, in which case the Owner Trustee
shall have the power to remove any such additional trustee without the
concurrence of the Owner Participant; and the Owner Participant hereby
appoints the Owner Trustee its agent and attorney-in-fact for it in such
connection in such contingency; and
(F) no appointment of, or action by, any additional trustee will
relieve the Owner Trustee of any of its obligations under, or otherwise
affect any of the terms of, the Trust Indenture or affect the interests of
the Indenture Trustee or the holders of the Secured Certificates in the
Trust Indenture Estate.
ARTICLE X
SUPPLEMENTS AND AMENDMENTS
TO TRUST AGREEMENT AND OTHER DOCUMENTS
SECTION 10.01. Supplements and Amendments. (a) Supplements and
Amendments. This Trust Agreement may not be amended, supplemented or
otherwise modified except by an instrument in writing signed by the Owner
Trustee and the Owner Participant. Subject to Section 10.02 hereof and the
first sentence of Section 10 of the Participation Agreement, the Owner
Trustee will execute any amendment, supplement or other modification of this
Trust Agreement or of any other Operative Document to which the Owner Trustee
is a party which it is requested to execute by the Owner Participant, except
that the Owner Trustee shall not execute any such amendment, supplement or
other modification which, by the express provisions of any of the above
documents, requires the consent of any other party unless such consent shall
have been obtained.
(b) Delivery of Amendments and Supplements to Certain Parties. A
signed copy of each amendment or supplement referred to in Section 10.01(a)
hereof shall be delivered by the Owner Trustee to the Indenture Trustee and
each holder of a Secured Certificate.
SECTION 10.02. Discretion as to Execution of Documents. Prior to
executing any document required to be executed by it pursuant to the terms of
Section 10.01 hereof, the Owner Trustee shall be entitled to receive an
opinion of its counsel to the effect that 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
-16-
particular form of the proposed documents to be executed pursuant to such
Section, but it shall be sufficient if such request shall indicate the substance
thereof.
SECTION 10.04. Distribution of Documents. Promptly after the
execution by the Owner Trustee of any document entered into pursuant to
Section 10.01 hereof, the Owner Trustee shall mail, by certified mail,
postage prepaid, a conformed copy thereof to the Owner Participant, but the
failure of the Owner Trustee to mail such conformed copy shall not impair or
affect the validity of such document.
SECTION 10.05. No Request Needed as to Lease Supplement and Trust
Supplement. No written request pursuant to Section 10.01 hereof shall be
required to enable the Owner Trustee to enter into the Lease Supplement
covering the Aircraft with Lessee pursuant to the terms of the Lease and
Section 3.01 hereof and the Trust Supplement pursuant to the terms of the
Trust Indenture and Section 3.01 hereof.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Termination of Trust Agreement. This Trust
Agreement and the trusts created hereby shall be of no further force or
effect upon the earlier of (a) both the final discharge of the Trust
Indenture pursuant to Section 10.01 thereof and the sale or other final
disposition by the Owner Trustee of all property constituting part of the
Trust Estate and the final distribution by the Owner Trustee of all monies or
other property or proceeds constituting part of the Trust Estate in
accordance with Article IV hereof, provided that at such time Lessee shall
have fully complied with all of the terms of the Lease and the Participation
Agreement or (b) twenty-one years less one day after the death of the last
survivor of all of the descendants of the grandparents of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
living on the date of the earliest execution of this Trust Agreement by any
party hereto; otherwise this Trust Agreement and the trusts created hereby
shall continue in full force and effect in accordance with the terms hereof.
SECTION 11.02. Owner Participant Has No Legal Title in Trust
Estate. The Owner Participant shall not have legal title to any part of the
Trust Estate. No transfer, by operation of law or otherwise, of any right,
title and interest of the Owner Participant in and to the Trust Estate
hereunder shall operate to terminate this Trust Agreement or the trusts
hereunder or entitle any successors or transferees of the Owner Participant
to an accounting or to the transfer of legal title to any part of the Trust
Estate.
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,
-17-
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 Agreement on the day that such writing is
delivered or sent to the intended recipient thereof in accordance with the
provisions of this Section 11.05(a). Unless otherwise specified in a notice
sent or delivered in accordance with the foregoing provisions of this Section
11.05(a), notices, demands, instructions and other communications in writing
shall be given to or made upon the respective parties hereto at their
respective addresses (or to their respective telecopier numbers) as follows:
(A) if to Lessee, the Owner Trustee, the Loan Participants, the Indenture
Trustee or the Owner Participant, to the respective addresses set forth below
the signatures of such parties on the signature page of the Participation
Agreement, or (B) if to a Subsequent Owner Participant, addressed to such
Subsequent Owner Participant at such address as such Subsequent Owner
Participant shall have furnished by notice to the parties hereto or (C) if to
any subsequent Certificate Holder, addressed to such Certificate Holder at
its address set forth in the secured certificate register maintained pursuant
to Section 2.07 of the Trust Indenture.
(b) Each of the parties hereto (A) hereby irrevocably submits
itself to the non-exclusive jurisdiction of the United States District Court
for the Southern District of New York and to the non-exclusive jurisdiction
of the Supreme Court of the State of New York, New York County, for the
purposes of any suit, action or other proceeding arising out of this Trust
Agreement, the Participation Agreement, the Lease, the Tax Indemnity
Agreement or any other Operative Document, the subject matter of any thereof
or any of the transactions contemplated hereby or thereby brought by any
party or parties thereto, or their successors or assigns, and (B) hereby
waives, and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, to the extent permitted by
applicable law, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the 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
-18-
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
SECTION 11.07. Waivers, etc. No term or provision hereof may be
changed, waived, discharged or terminated orally, but only by an instrument
in writing entered into in compliance with the terms of Article X hereof; and
any waiver of the terms hereof shall be effective only in the specific
instance and for the specific purpose given.
SECTION 11.08. Counterparts. This Trust Agreement may be executed
by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 11.09. Binding Effect, etc. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Owner Trustee and its successors and assigns, and the Owner Participant, its
successors and, to the extent permitted by Article VIII hereof, its assigns.
Any request, notice, direction, consent, waiver or other instrument or action
by the Owner Participant shall bind its successors and assigns. Any Owner
Participant which shall cease to have any Ownership Interest shall thereupon
cease to be a party hereto or an Owner Participant for any reason and shall
have no further obligations hereunder.
SECTION 11.10. Headings; References. The headings of the various
Articles and Sections herein are for convenience of reference only and shall
not define or limit any of the terms or provisions hereof.
SECTION 11.11. GOVERNING LAW. THIS TRUST AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF UTAH, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
-19-
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.
FINOVA CAPITAL CORPORATION
BY s/[Vice President of Owner Participant]
---------------------------------------
Title: Vice President
FIRST SECURITY BANK,
NATIONAL ASSOCIATION
BY s/▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Vice President
-20-