EXHIBIT 99(f)
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TRUST AGREEMENT
[NW ____ _]
DATED AS OF [____________]
BETWEEN
[_______________________________________],
OWNER PARTICIPANT
AND
▇▇▇▇▇ FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
OWNER TRUSTEE
ONE [AIRBUS A319-113/114] [BOEING 757-351] [BOEING 747-451]
AIRCRAFT
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TRUST AGREEMENT
[NW ____ _]
This TRUST AGREEMENT [NW ____ _] dated as of [_______________]
between [____________________________________], a [_______________] (the
"ORIGINAL OWNER PARTICIPANT"), and ▇▇▇▇▇ FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, a national banking association (in its individual capacity, "▇▇▇▇▇
Fargo") and otherwise not in its individual capacity but solely as trustee
hereunder (herein in such capacity with its permitted successors and assigns
called the "OWNER TRUSTEE");
W I T N E S S E T H:
ARTICLE I
DEFINITIONS AND TERMS
SECTION 1.01. CERTAIN DEFINITIONS. Unless the context shall
otherwise require and except as contained in this Section 1.01, the capitalized
terms used herein shall have the respective meanings assigned thereto in the
Lease (as hereinafter defined) for all purposes hereof. All definitions
contained in this Section 1.01 shall be equally applicable to both the singular
and plural forms of the terms defined. For all purposes of this Trust Agreement
the following terms shall have the following meanings:
"EXCLUDED PAYMENTS" has the meaning ascribed to such term in
the Trust Indenture.
"INDENTURE EVENT OF DEFAULT" has the meaning which the term
"Event of Default" has in the Trust Indenture.
"LEASE" means that certain Lease Agreement [NW ____ _], to be
dated as of the date hereof, and to be entered into by the Owner Trustee and
Lessee concurrently with the execution and delivery of this Trust Agreement, as
said Lease Agreement may from time to time be supplemented or amended, or the
terms thereof waived or modified, to the extent permitted by, and in accordance
with, the terms of this Trust Agreement. The term "LEASE" shall also include
each Lease Supplement from time to time entered into pursuant to the terms of
the Lease.
"LEASE EVENT OF DEFAULT" has the meaning which the term "Event
of Default" has in the Lease.
"LESSEE" means Northwest Airlines, Inc., a Minnesota
corporation, and its permitted successors and assigns.
"OWNER PARTICIPANT" means the Original Owner Participant and
each Subsequent Owner Participant to the extent that the same shall, at the
relevant time, have an Ownership Interest.
"OWNERSHIP INTEREST" means, in the case of each Owner
Participant, the percentage of its undivided beneficial interest in the Trust
Estate created by this Trust Agreement, which percentage shall be 100%.
"PARTICIPATION AGREEMENT" has the meaning ascribed to such
term in the Lease.
"REPLACEMENT AIRFRAME" has the meaning ascribed to such term
in the Trust Indenture.
"REPLACEMENT ENGINE" has the meaning ascribed to such term in
the Trust Indenture.
"SUBSEQUENT OWNER PARTICIPANT" means any corporation to which
the Original Owner Participant or any transferee from the Original Owner
Participant or any Subsequent Owner Participant shall have transferred at any
time after the Delivery Date all of the undivided right, title and interest
originally held by the Original Owner Participant in this Trust Agreement, the
Trust Estate and the Participation Agreement, to the extent permitted by Section
8.01 of this Trust Agreement and Section 8 of the Participation Agreement,
PROVIDED that any such transfer: (i) shall be effected by a written agreement,
in form and substance reasonably satisfactory to the Owner Trustee in its
individual capacity, among such transferee, its transferor and the Owner
Trustee, which shall provide that such transferee thereby becomes a party to,
and beneficiary of, this Trust Agreement and an Owner Participant for all
purposes hereof and that such transferee assumes all of the obligations of its
transferor under this Trust Agreement; and (ii) so long as the Lease shall be in
effect or any Secured Certificates remain unpaid, such transferee and its
transferor shall have complied with all of the terms of Section 8(n) of the
Participation Agreement.
"TRUST ESTATE" means all estate, right, title and interest of
the Owner Trustee in and to the Aircraft, the Lease, any Lease Supplement, the
Purchase Agreement[, the Guaranty -- A319'S ONLY], the Purchase Agreement
Assignment, the ▇▇▇▇ of Sale and the FAA ▇▇▇▇ of Sale, including, without
limitation, all amounts of Basic Rent and Supplemental Rent including without
limitation insurance proceeds (other than insurance proceeds payable to or for
the benefit of the Owner Trustee, for its own account or in its individual
capacity, the Owner Participant, the Loan Participants or the Indenture Trustee)
and requisition, indemnity or other payments of any kind for or with respect to
the Aircraft (except amounts owing to the Owner Participant, to the Indenture
Trustee, to the Owner Trustee, in its individual capacity, or to the Loan
Participants or any other holder of a Secured Certificate, or to any of their
respective directors, officers, employees, servants and agents, pursuant to
Section 7 of the Participation Agreement). Notwithstanding the foregoing, "Trust
Estate" shall not include any Excluded Payments.
"TRUST INDENTURE ESTATE" has the meaning ascribed to such term
in the Trust Indenture.
"TRUST OFFICE" shall mean the principal corporate trust office
of the Owner Trustee at MAC: U1254-031, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department, or the principal corporate
trust office of any successor Owner Trustee.
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"TRUST SUPPLEMENT" means a supplement to the Trust Indenture
and to this Trust Agreement in substantially the form of EXHIBIT A to the Trust
Indenture which shall particularly describe the Aircraft, and any Replacement
Airframe and Replacement Engine included in the property of the Owner Trustee
covered by this Trust Agreement.
ARTICLE II
AUTHORITY TO EXECUTE CERTAIN OPERATIVE DOCUMENTS;
DECLARATION OF TRUST
SECTION 2.01. AUTHORITY TO EXECUTE DOCUMENTS. The Owner
Participant hereby authorizes and directs the Owner Trustee to execute and
deliver the Operative Documents and any other agreements, instruments or
documents to which the Owner Trustee is a party in the respective forms thereof
in which delivered from time to time by the Owner Participant to the Owner
Trustee for execution and delivery and, subject to the terms hereof, to perform
its duties and, upon instructions from the Owner Participant, exercise its
rights under said Operative Documents in accordance with the terms thereof.
SECTION 2.02. DECLARATION OF TRUST. The Owner Trustee hereby
declares that it will hold the Trust Estate upon the trusts hereinafter set
forth for the use and benefit of the Owner Participant, subject, however, to the
provisions of and the Lien created by the Trust Indenture and to the provisions
of the Lease.
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;
(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;
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(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. ss. 47.7(c)(2)(ii) (1979)); and (iii) the Trust Agreement.
SECTION 3.02. CONDITIONS PRECEDENT. The right and obligation
of the Owner Trustee to take the action required by Section 3.01 hereof with
respect to the Aircraft shall be subject to the following conditions precedent:
(a) the Original Owner Participant shall have made the full
amount of its Commitment set forth in Schedule II of the Participation
Agreement available to the Owner Trustee, in immediately available
funds, in accordance with Section 1 of the Participation Agreement; and
(b) the terms and conditions of Section 4 of the Participation
Agreement, insofar as they relate to the Aircraft, shall have been
complied with in a manner satisfactory to the Original Owner
Participant and the Owner Trustee.
SECTION 3.03. AUTHORIZATION IN RESPECT OF A TERMINATION OF THE
LEASE AND ASSUMPTION OF THE SECURED CERTIFICATES. The Owner Participant hereby
authorizes and directs the Owner Trustee to, and the Owner Trustee agrees for
the benefit of the Owner Participant that it will, take the actions specified to
be taken by the Owner Trustee in Section 8(x) of the Participation Agreement
upon Lessee's purchasing the Aircraft pursuant to Section 19(d) of the Lease and
upon Lessee's assuming the indebtedness evidenced by the Secured Certificates in
accordance with the provisions of such Section 8(x).
SECTION 3.04. AUTHORIZATION IN RESPECT OF A REPLACEMENT
AIRFRAME OR REPLACEMENT ENGINES. The Owner Participant hereby authorizes and
directs the Owner Trustee to, and the Owner Trustee agrees for the benefit of
the Owner Participant that it will, in the event of a Replacement Airframe and
Replacement Engines, if any, being substituted pursuant to Section 10(a) of the
Lease, or a Replacement Engine being substituted pursuant to Section 10(b) of
the Lease, subject to due compliance with the terms of Section 10(a) or 10(b) of
the Lease, as the case may be:
(a) to the extent not previously accomplished by a prior
authorization, authorize a representative or representatives of the
Owner Trustee (who shall be an employee or employees of Lessee) to
accept delivery of the Replacement Airframe and Replacement Engines, if
any, or the Replacement Engines;
(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
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Replacement Engines, if any, or the Replacement Engine being furnished
pursuant to Section 10(a) or (b) of the Lease;
(c) in the case of a Replacement Airframe, make application to
the Federal Aviation Administration for the registration in the name of
the Owner Trustee of the Aircraft of which such Replacement Airframe is
a part;
(d) execute and deliver a Lease Supplement and a Trust
Supplement covering (i) the Aircraft of which such Replacement Airframe
is part or (ii) such Replacement Engine, as the case may be;
(e) transfer its interest in (without recourse except as to
obligations in respect of Lessor Liens, including for this purpose
Liens that would be Lessor Liens but for the proviso in the definition
of Lessor Liens) and to the Airframe and Engines (if any) or the Engine
being replaced to Lessee;
(f) request in writing that the Indenture Trustee execute and
deliver to Lessee appropriate instruments to release the Airframe and
Engines or engines (if any) or the Engine or engine being replaced from
the lien created under the Trust Indenture and release the Purchase
Agreement and the Purchase Agreement Assignment (solely with respect to
such replaced Airframe and Engines, if any, or Engine) from the
assignment and pledge under the Trust Indenture; and
(g) upon instructions from the Owner Participant, take such
further action as may be contemplated by clauses (A) and (B) of the
third paragraph of Section 10(a) of the Lease or clauses (ii) and (iii)
of Section 10(b) of the Lease, as the case may be.
SECTION 3.05. TRUST AGREEMENT REMAINING IN FULL FORCE AND
EFFECT. In the event of the substitution of a Replacement Airframe for the
Airframe or the substitution of a Replacement Engine for any Engine or engine,
all provisions of this Trust Agreement relating to such replaced Airframe or
Engine or engine shall be applicable to such Replacement Airframe or Replacement
Engine with the same force and effect as if such Replacement Airframe or
Replacement Engine were the same airframe or engine as the Airframe or Engine
being replaced but for the Event of Loss with respect to such Airframe or
Engine.
SECTION 3.06. AUTHORIZATION IN RESPECT OF A RETURN OF AN
ENGINE. The Owner Participant hereby authorizes and directs the Owner Trustee
to, and the Owner Trustee agrees for the benefit of the Owner Participant that
it will, in the event of an engine being transferred to the Owner Trustee
pursuant to Section 5(b) of the Lease, subject to due compliance with the terms
of such Section 5(b):
(a) accept from Lessee the ▇▇▇▇ of sale with respect to such
engine contemplated by such Section 5(b) (if tendered);
(b) transfer its interest in (without recourse except as to
obligations in respect of Lessor Liens, including for this purpose
Liens that would be Lessor Liens but for the proviso in the definition
of Lessor Liens) and to an Engine to Lessee as contemplated by such
Section 5(b); and
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(c) request in writing that the Indenture Trustee execute and
deliver to Lessee appropriate instruments to release the Engine being
transferred to Lessee pursuant to such Section 5(b) from the lien of
the Trust Indenture and to release the Purchase Agreement and the
Purchase Agreement Assignment (solely with respect to such Engine) from
the assignment and pledge under the Trust Indenture.
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE TRUST ESTATE
SECTION 4.01. DISTRIBUTION OF PAYMENTS. (a) PAYMENTS TO
INDENTURE TRUSTEE. Until the Trust Indenture shall have been discharged pursuant
to Section 10.01 thereof, all Basic Rent, Supplemental Rent, insurance proceeds
and requisition or other payments of any kind included in the Trust Estate
(other than Excluded Payments) payable to the Owner Trustee shall be payable
directly to the Indenture Trustee (and if any of the same are received by the
Owner Trustee shall upon receipt be paid over to the Indenture Trustee without
deduction, set-off or adjustment of any kind) for distribution in accordance
with the provisions of Article III of the Trust Indenture.
(b) PAYMENTS TO OWNER TRUSTEE; OTHER PARTIES. After the Trust
Indenture shall have been discharged pursuant to Section 10.01 thereof, any
payment of the type referred to in Section 4.01(a) hereof (other than Excluded
Payments) received by the Owner Trustee, any payments received from the
Indenture Trustee other than as specified in Section 4.01(d) hereof and any
other amount received as part of the Trust Estate and for the application or
distribution of which no provision is made herein, shall be distributed
forthwith upon receipt by the Owner Trustee in the following order of priority:
first, so much of such payment as shall be required to reimburse the Owner
Trustee for any expenses not otherwise reimbursed as to which the Owner Trustee
is entitled to be so reimbursed pursuant to the provisions hereof shall be
retained by the Owner Trustee; SECOND, so much of the remainder for which
provision as to the application thereof is contained in the Lease or any of the
other Operative Documents shall be applied and distributed in accordance with
the terms of the Lease or such other Operative Document; and THIRD, the balance,
if any, shall be paid to the Owner Participant.
(c) CERTAIN DISTRIBUTIONS TO OWNER PARTICIPANT. All amounts
from time to time distributable by the Indenture Trustee to the Owner
Participant pursuant to the Trust Indenture shall, if paid to the Owner Trustee,
be distributed by the Owner Trustee to the Owner Participant in accordance with
the provisions of Article III of the Trust Indenture.
(d) EXCLUDED PAYMENTS. Any Excluded Payments received by the
Owner Trustee shall be paid by the Owner Trustee to the Person to whom such
Excluded Payments are payable under the provisions of the Participation
Agreement, the Tax Indemnity Agreement or the Lease.
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
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the Owner Participant as the Owner Participant may designate from time to time
in writing to the Owner Trustee. Notwithstanding the foregoing, the Owner
Trustee will, if so requested by the Owner Participant in writing, pay any or
all amounts payable to the Owner Participant pursuant to this Article IV either
(i) by crediting such amount or amounts to an account or accounts maintained by
the Owner Participant with the Owner Trustee in its individual capacity in
immediately available funds, (ii) by payment at the Trust Office of the Owner
Trustee, in immediately available funds, or (iii) by mailing an official bank
check or checks in such amount or amounts payable to the Owner Participant at
such address as the Owner Participant shall have designated in writing to the
Owner Trustee.
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
SECTION 5.01. NOTICE OF EVENT OF DEFAULT. If the Owner Trustee
shall have knowledge of a Lease Event of Default or an Indenture Event of
Default (or an event which with the passage of time or the giving of notice or
both would constitute a Lease Event of Default or an Indenture Event of Default)
the Owner Trustee shall give to the Owner Participant prompt telephonic or
telecopy notice thereof followed by prompt confirmation thereof by certified
mail, postage prepaid, provided that (i) in the case of an event which with the
passage of time would constitute an Indenture Event of Default referred to in
paragraph (c) of Section 4.02 of the Trust Indenture, such notice shall in no
event be furnished later than ten (10) days after the Owner Trustee shall first
have knowledge of such event and (ii) in the case of a misrepresentation by the
Owner Trustee which with the passage of time would constitute an Indenture Event
of Default referred to in paragraph (d) of Section 4.02 of the Trust Indenture,
such notice shall in no event be furnished later than ten (10) days after the
Owner Trustee shall first have knowledge of such event. Subject to the terms of
Section 5.03 hereof, the Owner Trustee shall take such action or shall refrain
from taking such action, not inconsistent with the provisions of the Trust
Indenture, with respect to such Lease Event of Default, Indenture Event of
Default or other event as the Owner Trustee shall be directed in writing by the
Owner Participant. If the Owner Trustee shall not have received instructions as
above provided within twenty (20) days after the mailing of such notice to the
Owner Participant, the Owner Trustee until instructed otherwise in accordance
with the preceding sentence may, but shall be under no duty to, take or refrain
from taking such action with respect to such Lease Event of Default, Indenture
Event of Default or other event, not inconsistent with the provisions of the
Trust Indenture, as it shall deem advisable in the best interests of the Owner
Participant. For all purposes of this Trust Agreement, the Lease and the other
Operative Documents, in the absence of actual knowledge by an officer of ▇▇▇▇▇
Fargo in the Corporate Trust Department, the Owner Trustee shall not be deemed
to have knowledge of a Lease Event of Default, an Indenture Event of Default or
other event referred to in this Section 5.01 unless notified in writing by the
Indenture Trustee, the Owner Participant or Lessee.
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
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Operative Documents to which the Owner Trustee is a party or in respect of all
or any part of the Trust Estate as shall be specified in such instructions
(including entering into agreements referred to in clause (i) of the definition
of "Subsequent Owner Participant"); (ii) take such action to preserve or protect
the Trust Estate (including the discharge of Liens) as may be specified in such
instructions; (iii) approve as satisfactory to it all matters required by the
terms of the Lease or the other Operative Documents to be satisfactory to the
Owner Trustee, it being understood that without written instructions of the
Owner Participant, the Owner Trustee shall not approve any such matter as
satisfactory to it (it being understood that the provisions of Sections 3.03,
3.04 and 3.06 hereof do not constitute instructions by the Owner Participant for
the Owner Trustee to approve of or consent to the matters to be approved of or
consented to by the Owner Trustee in the sections of the Lease referred to in
Sections 3.03, 3.04 or 3.06 hereof); and (iv) subject to the rights of Lessee
under the Operative Documents, after the expiration or earlier termination of
the Lease, deliver the Aircraft to the Owner Participant in accordance with such
instructions, convey all of the Owner Trustee's right, title and interest in and
to the Aircraft for such amount, on such terms and to such purchaser or
purchasers as shall be designated in such instructions, or net lease the
Aircraft on such terms and to such lessee or lessees as shall be designated in
such instructions.
SECTION 5.03. INDEMNIFICATION. The Owner Trustee shall not be
required to take any action under Section 5.01 (other than the giving of the
notices referred to therein) or 5.02 hereof unless the Owner Trustee shall have
been indemnified by the Owner Participant, in manner and form satisfactory to
the Owner Trustee, against any liability, cost or expense (including reasonable
counsel fees and disbursements) which may be incurred in connection therewith;
and, if the Owner Participant shall have directed the Owner Trustee to take any
such action or refrain from taking any action, the Owner Participant agrees to
furnish such indemnity as shall be required and, in addition, to the extent not
otherwise paid pursuant to the provisions of the Lease or the Participation
Agreement, to pay the reasonable compensation of the Owner Trustee for the
services performed or to be performed by it pursuant to such direction and any
fees and disbursements of counsel or agents employed by the Owner Trustee in
connection therewith. The Owner Trustee shall not be required to take any action
under Section 5.01 or 5.02 hereof if the Owner Trustee shall reasonably
determine, or shall have been advised by counsel, that such action is contrary
to the terms of any of the Operative Documents to which the Owner Trustee is a
party, or is otherwise contrary to law.
SECTION 5.04. NO DUTIES EXCEPT AS SPECIFIED IN TRUST AGREEMENT
OR INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to
manage, control, use, sell, dispose of or otherwise deal with the Aircraft or
any other part of the Trust Estate, or to otherwise take or refrain from taking
any action under, or in connection with any of the Operative Documents to which
the Owner Trustee is a party, except as expressly required by the terms of any
of the Operative Documents to which the Owner Trustee is a party, or (to the
extent not inconsistent with the provisions of the Trust Indenture) as expressly
provided by the terms hereof or in written instructions from the Owner
Participant received pursuant to the terms of Section 5.01 or 5.02, and no
implied duties or obligations shall be read into this Trust Agreement against
the Owner Trustee. ▇▇▇▇▇ Fargo agrees that it will, in its individual capacity
and at its own cost or expense (but without any right of indemnity in respect of
any such cost or expense under Section 7.01 hereof) promptly take such action as
may be necessary to duly discharge and
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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. ▇▇▇▇▇ Fargo
accepts the trusts hereby created and agrees to perform the same but only upon
the terms hereof applicable to it. The Owner Trustee also agrees to receive and
disburse all monies received by it constituting part of the Trust Estate upon
the terms hereof. ▇▇▇▇▇ Fargo shall not be answerable or accountable under any
circumstances, except (a) for its own willful misconduct or gross negligence,
(b) for performance of the terms of the last sentence of Section 5.04 hereof,
(c) for its or the Owner Trustee's failure to use ordinary care to disburse
funds and (d) for liabilities that may result from the inaccuracy of any
representation or warranty of it (or from the failure by it to perform any
covenant) in Section 6.03 hereof, in Section 6.03 of the Trust Indenture, in
Section 4 of the Lease or in Section 8(c), 8(d) and 8(v) of the Participation
Agreement.
SECTION 6.02. ABSENCE OF CERTAIN DUTIES. Except in accordance
with written instructions furnished pursuant to Section 5.02 hereof and except
as provided in, and without limiting the generality of, Section 5.04 hereof and
the last sentence of Section 9.01(b) hereof, neither the Owner Trustee nor ▇▇▇▇▇
Fargo shall have any duty (i) to see to any recording or filing of any Operative
Document or of any supplement to any thereof or to see to the maintenance of any
such recording or filing or any other filing of reports with the Federal
Aviation Administration or other governmental agencies, except that ▇▇▇▇▇ Fargo,
in its individual capacity, shall comply with the reporting requirements set
forth in 14 C.F.R. ss. 47.45 or any successor provision and the Owner Trustee
shall, to the extent that information for that purpose is supplied by Lessee
pursuant to any of the Operative Documents, complete and timely submit (and
furnish the Owner Participant with a copy of) any and all reports relating to
the Aircraft which may from time to time be required by the Federal Aviation
Administration or any government or governmental authority having jurisdiction,
or (ii) to see to any insurance on the Aircraft or to effect or maintain any
such insurance, whether or not Lessee shall be in default with respect thereto,
other than to forward to the Owner Participant copies of all reports and
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other written information which the Owner Trustee receives from Lessee pursuant
to Section 11(c) of the Lease, or (iii) to see to the payment or discharge of
any tax, assessment or other governmental charge or any lien or encumbrance of
any kind owing with respect to, assessed or levied against any part of the Trust
Indenture Estate or the Trust Estate, except as provided in Section 8 of the
Participation Agreement, or (iv) to inspect Lessee's books and records with
respect to the Aircraft at any time permitted pursuant to the Lease.
Notwithstanding the foregoing, the Owner Trustee will furnish to the Indenture
Trustee and the Owner Participant, promptly upon receipt thereof, duplicates or
copies of all reports, notices, requests, demands, certificates, financial
statements and other instruments furnished to the Owner Trustee under the Lease
or any other Operative Document.
SECTION 6.03. NO REPRESENTATIONS OR WARRANTIES AS TO CERTAIN
MATTERS. NEITHER THE OWNER TRUSTEE NOR ▇▇▇▇▇ FARGO MAKES OR SHALL BE DEEMED TO
HAVE MADE (A) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE
TITLE, VALUE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE
OF THE AIRCRAFT OR ANY PART THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY
WITH RESPECT TO THE AIRCRAFT WHATSOEVER, except that ▇▇▇▇▇ Fargo in its
individual capacity warrants that on the Delivery Date the Owner Trustee shall
have received whatever title was conveyed to it by Lessee and that the Aircraft
shall during the Term be free of Lessor Liens attributable to it, or (b) any
representation or warranty as to the validity, legality or enforceability of
this Trust Agreement or any Operative Document to which the Owner Trustee is a
party, or any other document or instrument, or as to the correctness of any
statement contained in any thereof except to the extent that any such statement
is expressly made herein or therein as a representation by ▇▇▇▇▇ Fargo in its
individual capacity or by the Owner Trustee and except that ▇▇▇▇▇ Fargo in its
individual capacity hereby represents and warrants that this Trust Agreement has
been, and (assuming due authorization, execution and delivery by the Original
Owner Participant of this Trust Agreement) the Operative Documents to which it
or the Owner Trustee is a party have been (or at the time of execution and
delivery of any such instrument by it or the Owner Trustee hereunder or pursuant
to the terms of the Participation Agreement that such an instrument will be)
duly executed and delivered by one of its officers who is or will be, as the
case may be, duly authorized to execute and deliver such instruments on behalf
of itself or the Owner Trustee, as the case may be.
SECTION 6.04. NO SEGREGATION OF MONIES REQUIRED; NO INTEREST.
Except as provided in Section 22 of the Lease, monies received by the Owner
Trustee hereunder need not be segregated in any manner except to the extent
required by law, and may be deposited under such general conditions as may be
prescribed by law, and the Owner Trustee shall not be liable for any interest
thereon.
SECTION 6.05. RELIANCE UPON CERTIFICATES, COUNSEL AND AGENTS.
The Owner Trustee shall incur no liability to anyone in acting in reliance upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or 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
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evidenced by written instruments signed by a person purporting to be the
chairman of the board, the president, any executive vice president, any senior
vice president or any vice president or a managing director and in the name of
the Owner Participant or Lessee, as the case may be. The Owner Trustee may
accept a copy of a resolution of the Board of Directors or Executive Committee
of Lessee, certified by the secretary or any assistant secretary of Lessee as
duly adopted and in full force and effect, as conclusive evidence that such
resolution has been duly adopted by said Board or Committee and that the same is
in full force and effect. As to any fact or matter the manner of ascertainment
of which is not specifically described herein, the Owner Trustee may for all
purposes hereof rely on a certificate signed by a person purporting to be the
chairman of the board, the president, any executive vice president, any senior
vice president or any vice president or a managing director of Lessee, as to
such fact or matter, and such certificate shall constitute full protection to
the Owner Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon. In the administration of trusts hereunder, the Owner
Trustee may execute any of the trusts or powers hereof and perform its powers
and duties hereunder directly or through agents or attorneys and may, at the
expense of the Trust Estate, consult with counsel, accountants and other skilled
persons to be selected and employed by it. The Owner Trustee shall not be liable
for anything done, suffered or omitted in good faith by it in accordance with
the advice or opinion of any such counsel, accountants or other skilled persons
and the Owner Trustee shall not be liable for the negligence of any such agent,
attorney, counsel, accountant or other skilled person appointed by it with due
care hereunder.
SECTION 6.06. NOT ACTING IN INDIVIDUAL CAPACITY. In acting
hereunder, the Owner Trustee acts solely as trustee and not in its individual
capacity except as otherwise expressly provided herein; and, subject to the
terms of the Participation Agreement and the Trust Indenture, all persons, other
than the Owner Participant, as provided herein, having any claim against the
Owner Trustee by reason of the transactions contemplated hereby shall look only
to the Trust Estate for payment or satisfaction thereof.
SECTION 6.07. FEES; COMPENSATION. Except as provided in
Section 5.03 or 7.01 hereof and Section 16 of the Participation Agreement, the
Owner Trustee agrees that it shall have no right against the Owner Participant
or (subject to the provisions of the Trust Indenture) the Trust Estate for any
fee as compensation for its services hereunder; PROVIDED, HOWEVER, that the
Owner Trustee shall have a lien upon the Trust Estate (subject, however, to the
lien of the Trust Indenture) for any such fee not paid by Lessee as contemplated
by the last paragraph of Section 7(c) of the Participation Agreement.
SECTION 6.08. TAX RETURNS. The Owner Trustee shall be
responsible for the keeping of all appropriate books and records relating to the
receipt and disbursement of all monies under this Trust Agreement or any
agreement contemplated hereby. The Owner Participant shall be responsible for
causing to be prepared and filed all income tax returns required to be filed by
the Owner Participant. The Owner Trustee shall be responsible for causing to be
prepared, at the request and expense of the Owner Participant, all income tax
returns required to be filed with respect to the trust created hereby and shall
execute and file such 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.
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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 ▇▇▇▇▇ Fargo in its individual
capacity and its successors, assigns, legal representatives, agents and
servants, from and against any and all liabilities, obligations, losses,
damages, penalties, taxes (excluding any taxes payable by ▇▇▇▇▇ Fargo in its
individual capacity on or measured by any compensation received by ▇▇▇▇▇ Fargo
in its individual capacity for its services hereunder or in connection with the
transactions contemplated by the Operative Documents), claims, actions, suits,
costs, expenses or disbursements (including, without limitation, reasonable
ongoing fees of the Owner Trustee, reasonable legal fees and expenses, and
including without limitation any liability of an owner, any strict liability and
any liability without fault) of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against ▇▇▇▇▇ Fargo in its individual
capacity (whether or not also indemnified against by Lessee under the Lease or
under the Participation Agreement or also indemnified against by any other
person but only to the extent not otherwise paid or reimbursed by Lessee or such
other person) in any way relating to or arising out of this Trust Agreement or
any of the Operative Documents or the enforcement of any of the terms of any
thereof, or in any way relating to or arising out of the manufacture, purchase,
acceptance, nonacceptance, rejection, ownership, delivery, lease, possession,
use, operation, condition, sale, return or other disposition of the Aircraft
(including, without limitation, latent and other defects, whether or not
discoverable, and any claim for patent, trademark or copyright infringement), or
in any way relating to or arising out of the administration of the Trust Estate
or the action or inaction of the Owner Trustee or ▇▇▇▇▇ Fargo in its individual
capacity hereunder, except (a) in the case of willful misconduct or gross
negligence on the part of the Owner Trustee or ▇▇▇▇▇ Fargo in its individual
capacity in the performance or non-performance of its duties hereunder or (b)
those resulting from the inaccuracy of any representation or warranty of ▇▇▇▇▇
Fargo in its individual capacity (or from the failure of ▇▇▇▇▇ Fargo in its
individual capacity to perform any covenant) in Section 6.03 hereof, in Section
6.03 of the Trust Indenture or, with respect to representations or warranties of
▇▇▇▇▇ Fargo in its individual capacity only, in Section 4 of the Lease, in
Section 8(c), Section 8(d) or Section 8(v) of the Participation Agreement or in
any of the other Operative Documents or (c) as may result from a breach by ▇▇▇▇▇
Fargo in its individual capacity of its covenants in the last sentence of
Section 5.04 hereof or (d) in the case of the failure to use ordinary care on
the part of the Owner Trustee or ▇▇▇▇▇ Fargo in its individual capacity in the
disbursement of funds. The indemnities contained in this Section 7.01 extend to
▇▇▇▇▇ Fargo only in its individual capacity and shall not be construed as
indemnities of the Trust Indenture Estate or the Trust Estate (except to the
extent, if any, that ▇▇▇▇▇ Fargo in its individual capacity has been reimbursed
by the Trust Indenture Estate or the Trust Estate for amounts covered by the
indemnities contained in this Section 7.01). The indemnities contained in this
Section 7.01 shall survive the termination of this Trust Agreement. In addition,
if necessary, ▇▇▇▇▇ Fargo in its individual capacity shall be entitled to
indemnification from the Trust Estate, subject to the Lien of the Trust
Indenture, for any liability, obligation, loss, damage, penalty, tax, claim,
action, suit, cost, expense or disbursement indemnified against pursuant to this
Section 7.01 to the extent not reimbursed by Lessee, the Owner Participant or
others, but without releasing any of them from their respective agreements
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of reimbursement; and to secure the same ▇▇▇▇▇ Fargo in its individual capacity
shall have a Lien on the Trust Estate, subject to the Lien of the Trust
Indenture, which shall be prior to any interest therein of the Owner
Participant. The payor of any indemnity under this Article VII shall be
subrogated to any right of the person indemnified in respect of the matter as to
which such indemnity was paid.
ARTICLE VIII
TRANSFER OF THE OWNER PARTICIPANT'S INTEREST
SECTION 8.01. TRANSFER OF INTERESTS. All provisions of Section
8(n) of the Participation Agreement shall (with the same force and effect as if
set forth in full, MUTATIS MUTANDIS, in this Section 8.01) be applicable to any
assignment, conveyance or other transfer by any Owner Participant of its right,
title or interest in and to the Participation Agreement, the Trust Estate or
this Trust Agreement.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES: CO-TRUSTEES
SECTION 9.01. RESIGNATION OF OWNER TRUSTEE; APPOINTMENT OF
SUCCESSOR. (a) RESIGNATION OR REMOVAL. The Owner Trustee or any successor Owner
Trustee (i) shall resign if required to do so pursuant to Section 8(c) of the
Participation Agreement and (ii) may resign at any time without cause by giving
at least sixty (60) days' prior written notice to the Owner Participant, the
Indenture Trustee (so long as the Lien of the Trust Indenture has not been fully
discharged) and Lessee (so long as the Lease is in effect), such resignation to
be effective upon the acceptance of appointment by the successor Owner Trustee
under Section 9.01(b) hereof. In addition, the Owner Participant may at any time
remove the Owner Trustee without cause by a notice in writing delivered to the
Owner Trustee, the Indenture Trustee (so long as the Lien of the Trust Indenture
has not been fully discharged) and Lessee (so long as the Lease is in effect),
such removal to be effective upon the acceptance of appointment by the successor
Owner Trustee under Section 9.01(b) hereof. In the case of the resignation or
removal of the Owner Trustee, the Owner Participant may appoint a successor
Owner Trustee by an instrument signed by the Owner Participant. If a successor
Owner Trustee shall not have been appointed within thirty (30) days after such
notice of resignation or removal, the Owner Trustee, the Owner Participant,
Lessee or the Indenture Trustee may apply to any court of competent jurisdiction
to appoint a successor Owner Trustee to act until such time, if any, as a
successor shall have been appointed as above provided. Any successor Owner
Trustee so appointed by such court shall immediately and without further act be
superseded by any successor Owner Trustee appointed as above provided.
(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
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originally named the Owner Trustee herein; but nevertheless, upon the written
request of such successor Owner Trustee, such predecessor Owner Trustee shall
execute and deliver an instrument transferring to such successor Owner Trustee,
upon the trusts herein expressed, all the estates, properties, rights, powers
and trusts of such predecessor Owner Trustee, and such predecessor Owner Trustee
shall duly assign, transfer, deliver and pay over to such successor Owner
Trustee all monies or other property then held by such predecessor Owner Trustee
upon the trusts herein expressed. Upon the appointment of any successor Owner
Trustee hereunder, the predecessor Owner Trustee will execute such documents as
are provided to it by such successor Owner Trustee and will take such further
actions as are requested of it by such successor Owner Trustee as are reasonably
required to cause registration of the Aircraft included in the Trust Estate to
be transferred upon the records of the Federal Aviation Administration, or other
governmental authority having jurisdiction, into the name of the successor Owner
Trustee.
(c) QUALIFICATION. Any successor Owner Trustee, however
appointed, shall be a Citizen of the United States without making use of a
voting trust, voting powers agreement or similar arrangement and shall also be a
bank or trust company organized under the laws of the United States or any state
thereof having a combined capital and surplus of at least $100,000,000, if there
be such an institution willing, able and legally qualified to perform the duties
of the Owner Trustee hereunder upon reasonable or customary terms.
(d) MERGER, ETC. Any corporation into which the Owner Trustee
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Owner Trustee shall be a party, or any corporation to which substantially all
the corporate trust business of the Owner Trustee may be transferred, shall,
subject to the terms of Section 9.01(c) hereof, be the Owner Trustee hereunder
without further act.
SECTION 9.02. CO-TRUSTEES AND SEPARATE TRUSTEES. If at any
time it shall be necessary or prudent in order to conform to any law of any
jurisdiction in which all or any part of the Trust Estate is located, or the
Owner Trustee being advised by counsel shall determine that it is so necessary
or prudent in the interest of the Owner Participant or the Owner Trustee, or the
Owner Trustee shall have been directed to do so by the Owner Participant, the
Owner Trustee and the Owner Participant shall execute and deliver an agreement
supplemental hereto and all other instruments and agreements necessary or proper
to constitute another bank or trust company or one or more persons (any and all
of which shall be a Citizen of the United States without making use of a voting
trust, voting powers agreement or similar arrangement) approved by the Owner
Trustee and the Owner Participant, either to act as co-trustee, jointly with the
Owner Trustee, or to act as separate trustee hereunder (any such co-trustee or
separate trustee being herein sometimes referred to as an "ADDITIONAL TRUSTEE").
In the event an Indenture Event of Default not arising from a Lease Event of
Default shall occur and be continuing, the Owner Trustee may act under the
foregoing provisions of this Section 9.02 without the concurrence of the Owner
Participant; and the Owner Participant hereby appoints the Owner Trustee its
agent and attorney-in-fact to act for it under the foregoing provisions of this
Section 9.02 in such contingency.
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Every additional trustee hereunder shall, to the extent
permitted by law, be appointed and act, and the Owner Trustee and its successors
shall act, subject to the following provisions and conditions:
(A) all powers, duties, obligations and rights conferred upon
the Owner Trustee in respect of the custody, control and management of
monies, the Aircraft or documents authorized to be delivered hereunder
or under the Participation Agreement shall be exercised solely by the
Owner Trustee;
(B) all other rights, powers, duties and obligations conferred
or imposed upon the Owner Trustee shall be conferred or imposed upon
and exercised or performed by the Owner Trustee and such additional
trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
(including the holding of title to the Trust Estate) the Owner Trustee
shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations shall be
exercised and performed by such additional trustee;
(C) no power given to, or which it is provided hereby may be
exercised by, any such additional trustee shall be exercised hereunder
by such additional trustee, except jointly with, or with the consent in
writing of, the Owner Trustee;
(D) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder;
(E) the Owner Participant, at any time, by an instrument in
writing may remove any such additional trustee unless such additional
trustee was appointed by the Owner Trustee without the concurrence of
the Owner Participant during the occurrence of an Indenture Event of
Default not arising from a Lease Event of Default, in which case the
Owner Trustee shall have the power to remove any such additional
trustee without the concurrence of the Owner Participant; and the Owner
Participant hereby appoints the Owner Trustee its agent and
attorney-in-fact for it in such connection in such contingency; and
(F) no appointment of, or action by, any additional trustee
will relieve the Owner Trustee of any of its obligations under, or
otherwise affect any of the terms of, the Trust Indenture or affect the
interests of the Indenture Trustee or the holders of the Secured
Certificates in the Trust Indenture Estate.
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
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Agreement, the Owner Trustee will execute any amendment, supplement or other
modification of this Trust Agreement or of any other Operative Document to which
the Owner Trustee is a party which it is requested to execute by the Owner
Participant, except that the Owner Trustee shall not execute any such amendment,
supplement or other modification which, by the express provisions of any of the
above documents, requires the consent of any other party unless such consent
shall have been obtained.
(b) DELIVERY OF AMENDMENTS AND SUPPLEMENTS TO CERTAIN PARTIES.
A signed copy of each amendment or supplement referred to in Section 10.01(a)
hereof shall be delivered by the Owner Trustee to the Indenture Trustee and each
holder of a Secured Certificate.
SECTION 10.02. DISCRETION AS TO EXECUTION OF DOCUMENTS. Prior
to executing any document required to be executed by it pursuant to the terms of
Section 10.01 hereof, the Owner Trustee shall be entitled to receive an opinion
of its counsel to the effect that the execution of such document is authorized
hereunder. If in the opinion of the Owner Trustee any such document adversely
affects any right, duty, immunity or indemnity in favor of the Owner Trustee
hereunder or under any other Operative Document to which the Owner Trustee is a
party, the Owner Trustee may in its discretion decline to execute such document.
SECTION 10.03. ABSENCE OF REQUIREMENTS AS TO FORM. It shall
not be necessary for any written request furnished pursuant to Section 10.01
hereof to specify the particular form of the proposed documents to be executed
pursuant to such Section, but it shall be sufficient if such request shall
indicate the substance thereof.
SECTION 10.04. DISTRIBUTION OF DOCUMENTS. Promptly after the
execution by the Owner Trustee of any document entered into pursuant to Section
10.01 hereof, the Owner Trustee shall mail, by certified mail, postage prepaid,
a conformed copy thereof to the Owner Participant, but the failure of the Owner
Trustee to mail such conformed copy shall not impair or affect the validity of
such document.
SECTION 10.05. NO REQUEST NEEDED AS TO LEASE SUPPLEMENT AND
TRUST SUPPLEMENT. No written request pursuant to Section 10.01 hereof shall be
required to enable the Owner Trustee to enter into the Lease Supplement covering
the Aircraft with Lessee pursuant to the terms of the Lease and Section 3.01
hereof and the Trust Supplement pursuant to the terms of the Trust Indenture and
Section 3.01 hereof.
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)
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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, transfer or conveyance or as to the application of any
sale or other proceeds with respect thereto by the Owner Trustee.
SECTION 11.04. TRUST AGREEMENT FOR BENEFIT OF CERTAIN PARTIES
ONLY. Except for the terms of Section 8(n) of the Participation Agreement
incorporated in Article VIII hereof and except as otherwise provided in Articles
IX and X hereof, nothing herein, whether expressed or implied, shall be
construed to give any Person other than the Owner Trustee and the Owner
Participant any legal or equitable right, remedy or claim under or in respect of
this Trust Agreement; but this Trust Agreement shall be held to be for the sole
and exclusive benefit of the Owner Trustee and the Owner Participant.
SECTION 11.05. NOTICES; CONSENT TO JURISDICTION. (a) All
notices, demands, instructions and other communications required or permitted to
be given to or made upon any party hereto shall be in writing and shall be
personally delivered or sent by registered or certified mail, postage prepaid,
or by telecopier, or by prepaid courier service, and shall be deemed to be given
for purposes of this Trust Agreement on the day that such writing is delivered
or sent to the intended recipient thereof in accordance with the provisions of
this Section 11.05(a). Unless otherwise specified in a notice sent or delivered
in accordance with the foregoing provisions of this Section 11.05(a), notices,
demands, instructions and other communications in writing shall be given to or
made upon the respective parties hereto at their respective addresses (or to
their respective telecopier numbers) as follows: (A) if to Lessee, the Owner
Trustee, the Loan Participants, the Indenture Trustee or the Owner Participant,
to the respective addresses set forth below the signatures of such parties on
the signature page of the Participation Agreement, or (B) if to a Subsequent
Owner Participant, addressed to such Subsequent Owner Participant at such
address as such Subsequent Owner Participant shall have furnished by notice to
the parties hereto or (C) if to any subsequent Certificate Holder, addressed to
such Certificate Holder at its address set forth in the secured certificate
register maintained pursuant to Section 2.07 of the Trust Indenture.
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(b) Each of the parties hereto (A) hereby irrevocably submits
itself to the non-exclusive jurisdiction of the United States District Court for
the Southern District of New York and to the non-exclusive jurisdiction of the
Supreme Court of the State of New York, New York County, for the purposes of any
suit, action or other proceeding arising out of this Trust Agreement, the
Participation Agreement, the Lease, the Tax Indemnity Agreement or any other
Operative Document, the subject matter of any thereof or any of the transactions
contemplated hereby or thereby brought by any party or parties thereto, or their
successors or assigns, and (B) hereby waives, and agrees not to assert, by way
of motion, as a defense, or otherwise, in any such suit, action or proceeding,
to the extent permitted by applicable law, that the suit, action or proceeding
is brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper, or that the Participation Agreement, the Lease, the Tax
Indemnity Agreement or any other Operative Document or the subject matter of any
thereof or any of the transactions contemplated hereby or thereby may not be
enforced in or by such courts.
SECTION 11.06. SEVERABILITY. Any provision hereof which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.07. WAIVERS, ETC. No term or provision hereof may
be changed, waived, discharged or terminated orally, but only by an instrument
in writing entered into in compliance with the terms of Article X hereof; and
any waiver of the terms hereof shall be effective only in the specific instance
and for the specific purpose given.
SECTION 11.08. COUNTERPARTS. This Trust Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 11.09. BINDING EFFECT, ETC. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the Owner Trustee and its successors and assigns, and the Owner Participant, its
successors and, to the extent permitted by Article VIII hereof, its assigns. Any
request, notice, direction, consent, waiver or other instrument or action by the
Owner Participant shall bind its successors and assigns. Any Owner Participant
which shall cease to have any Ownership Interest shall thereupon cease to be a
party hereto or an Owner Participant for any reason and shall have no further
obligations hereunder.
SECTION 11.10. HEADINGS; REFERENCES. The headings of the
various Articles and Sections herein are for convenience of reference only and
shall not define or limit any of the terms or provisions hereof.
SECTION 11.11. GOVERNING LAW. THIS TRUST AGREEMENT SHALL IN
ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF UTAH, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
[__________________________]
By:
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Name:
Title:
▇▇▇▇▇ FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION
By:
------------------------------
Name:
Title:
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