EXHIBIT 2.5
TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of October 21, 2002 (the
"Agreement") by and between UBICS HOLDING COMPANY, a corporation organized and
existing under the laws of the state of Delaware ("Trustor"), and XXXXX FARGO
BANK NORTHWEST, National Association, a national banking association organized
and existing under the laws of the United States of America ("Owner Trustee");
WITNESSETH:
WHEREAS, Trustor desires to cause title to the Aircraft (as
hereinafter defined) to be conveyed to Owner Trustee free and clear of all liens
and encumbrances;
WHEREAS, Trustor desires to create a trust (the "Trust") and
contribute the Aircraft thereto in order to ensure the eligibility of the
Aircraft for United States registration with the Federal Aviation Administration
(the "FAA");
WHEREAS, this Trust Agreement is designed to create a Trust in
order that the Owner Trustee may hold the Aircraft until such time as Trustor
directs the Owner Trustee to distribute the Aircraft in accordance with
Trustor's written instructions; and
WHEREAS, Owner Trustee is willing to accept the trusts as
herein provided;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, Trustor and Owner Trustee agree as follows:
ARTICLE 1
DEFINITIONS
Capitalized terms used in this Agreement shall have the
respective meanings assigned thereto below, unless such terms are otherwise
defined herein or the context hereof shall otherwise require. The terms
"hereof", "herein", "hereunder" and comparable terms refer to this Agreement, as
amended, modified or supplemented from time to time, and not to any particular
portion hereof. References in this Agreement to sections, paragraphs and clauses
are to sections, paragraphs and clauses in this Agreement unless otherwise
indicated.
"Affidavit" means the Affidavit of Owner Trustee pursuant to
Section 47.7(c)(2)(iii) of Part 47 of the Federal Aviation Regulations.
"Aircraft" means the Boeing VIP 727-44 Aircraft, serial number
19318, FAA Registration Number N44MD together with the engines attached thereon,
which are transferred to the Owner Trustee in trust under this Trust Agreement.
"Aircraft Registration Application" means AC Form 8050-1
Aircraft Registration Application by Owner Trustee covering the Aircraft.
"Citizen of the United States" means "citizen of the United
States" as that term is defined in Section 40102(a)(15) of Title 49 of the
United States Code.
"FAA Xxxx of Sale" means the Xxxx of Sale conveying title to
the Aircraft from Xxxxx Oil Company to Owner Trustee.
"Lessee" means any lessee under any Lease, or any operator
under any Operating Agreement.
"Lease" means any lease from time to time entered into with
respect to the Aircraft by the Owner Trustee, as Lessor, and a Lessee, at the
direction of the Trustor or any operating agreement entered into between the
Owner Trustee and the Trustor.
"Operating Agreement" means any operating agreement entered
into between the Owner Trustee and the Trustor.
"Trust Estate" means all estate, right, title and interest of
Owner Trustee in and to the Aircraft, the Lease, and the FAA Xxxx of Sale,
including, without limitation, all amounts of the rentals under any Lease,
insurance proceeds (other than insurance proceeds payable to or for the benefit
of Owner Trustee, for its own account or in its individual capacity, or
Trustor), and requisition, indemnity or other payments of any kind for or with
respect to the Aircraft, (other than amounts owing to Owner Trustee, for its own
account or in its individual capacity, Trustor or any Lessee of the Aircraft).
ARTICLE 2
CREATION OF TRUST
Section 2.01 Transfer of Control. Trustor shall cause title to
the Aircraft to be conveyed to Owner Trustee free and clear of all liens and
encumbrances.
Section 2.02 Acceptance and Declaration of Trust. Owner
Trustee accepts the Trust created hereby, and declares that it will hold the
Trust Estate upon the trusts hereinafter set forth for the use and benefit of
Trustor, in accordance with and subject to all of the terms and conditions
contained in this Agreement, and agrees to perform the same, including without
limitation the actions specified in Section 4.01 hereof, and agrees to receive
and disburse all moneys constituting part of the Trust Estate, all in accordance
with the terms hereof.
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ARTICLE 3
THE OWNER TRUSTEE
Section 3.01 Status. Owner Trustee hereby represents and
warrants that it is a Citizen of the United States.
Section 3.02 Removal. Owner Trustee may be removed at any time
but, for cause only by a written instrument or instruments signed by Trustor.
Such removal shall take effect immediately upon the appointment of a successor
Owner Trustee pursuant to Section 3.04, whereupon all powers, rights and
obligations of the removed Owner Trustee under this Agreement (except the rights
set forth in Section 3.08) shall cease and terminate. Without any affirmative
action by Trustor, any Owner Trustee shall cease immediately to be an Owner
Trustee at such time as it ceases to be a Citizen of the United States and shall
give immediate notice thereof to Trustor. Any Owner Trustee shall also give
Trustor notice of a possible change of citizenship at the later of (i) 90 days
prior to a change in citizenship and (ii) actual knowledge by Owner Trustee that
such a change in citizenship is probable.
Section 3.03 Resignation. Owner Trustee may resign at any time
upon giving 30 days prior written notice of such resignation to Trustor. Such
resignation shall take effect only upon the appointment of a successor Owner
Trustee pursuant to Section 3.04, whereupon all powers, rights and obligations
of the resigning Owner Trustee under this Agreement (except the rights set forth
in Section 3.08) shall cease and terminate.
Section 3.04 Successor Owner Trustee. Promptly upon receipt of
a notice of resignation from the Owner Trustee in accordance with Section 3.03,
a successor trustee shall be appointed by a written instrument signed by a duly
authorized officer of Trustor and the successor trustee shall execute and
deliver to the predecessor Owner Trustee an instrument accepting such
appointment. Such successor trustee shall be a Citizen of the United States and
shall assume all powers, rights and obligations of such Owner Trustee hereunder
immediately upon the resignation of such Owner Trustee becoming effective. Such
successor, concurrently with such appointment, shall file an Affidavit with the
FAA and all other documents then required by law to be filed in connection
therewith. If the Trustor shall not have so appointed a successor Owner Trustee
within 30 days after such resignation or removal, the Owner 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 or successors shall have been appointed
by the Trustor as above provided. Any successor Owner Trustee so appointed shall
immediately and without further act be superseded by any successor Owner Trustee
appointed by the Trustor as above provided.
Section 3.05 Merger. Any corporation into which 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
Owner Trustee shall be a party, or any corporation to which substantially all
the corporate trust business of Owner Trustee may be transferred, shall, subject
to the terms of Section 3.04, be Owner Trustee without further act.
Section 3.06 Tax Returns. The Owner Trustee shall keep all
appropriate books and records relating to the receipt and disbursement of all
monies under this Agreement or any agreement contemplated hereby. The Trustor
will prepare all tax returns required to be filed with respect to the trust
hereby and the Owner Trustee, upon request, will furnish the Trustor with all
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such information as may be reasonably required from the Owner Trustee in
connection with the preparation of such tax returns. The Owner Trustee will
execute and file the tax returns as prepared by the Trustor.
Section 3.07 Vacancies. If any vacancy shall occur in the
position of Owner Trustee for any reason, including, without limitation,
removal, resignation, loss of United States citizenship or the inability or
refusal of such Owner Trustee to act as Owner Trustee, the vacancy shall be
filled in accordance with Section 3.04.
Section 3.08 Fees; Compensation. The Owner Trustee shall
receive from the Trustor as compensation for the Owner Trustee's services
hereunder such fees as may heretofore and from time to time hereafter be agreed
upon by the Owner Trustee and the Trustor and shall be reimbursed by the Trustor
for all reasonable costs and expenses incurred or made by it in accordance with
any of the provisions of this Agreement. If an event of default under any Lease
shall occur, the Owner Trustee shall be entitled to receive reasonable
compensation for its additional responsibilities, and payment or reimbursement
for its expenses. The Owner Trustee shall have a lien on the Trust Estate, prior
to any interest therein of the Trustor, to secure payment of such fees and
expenses.
Section 3.09 No Duties. Owner Trustee shall not have any duty
(i) to see to any insurance on the Aircraft or maintain any such insurance, (ii)
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, the Aircraft (provided, however, that Owner Trustee shall not
create, permit or suffer to exist any lien or encumbrance on any part of the
Aircraft which results from claims against Owner Trustee unrelated to its
capacity as Owner Trustee hereunder), (iii) to confirm or verify any notices or
reports, (iv) to inspect the Aircraft at any time or ascertain the performance
or observance by either of any Lessee or Trustor of its covenants under any
Lease, or (v) except as set forth herein, to see to any recording or see to the
maintenance of any such recording or filing with the FAA or other government
agency.
Section 3.10 Status of Moneys Received. All moneys received by
Owner Trustee under or pursuant to any provisions of this Agreement shall
constitute trust funds for the purpose for which they are paid or held, and
shall be segregated from any other moneys and deposited by Owner Trustee under
such conditions as may be prescribed or permitted by law for trust funds.
Section 3.11 Owner Trustee May Rely. Owner Trustee shall not
incur any liability to any one in acting or refraining from acting 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. As to any fact or matter, the manner or ascertainment of which is not
specifically described herein, Owner Trustee may for all purposes hereof rely on
a certificate, signed by or on behalf of the party executing such certificate,
as to such fact or matter, and such certificate shall constitute full protection
of Owner Trustee for any action taken or omitted to be taken by it in good faith
in reliance thereon. In the administration of the Trust, Owner Trustee may, at
the reasonable cost and expense of Trustor, seek advice of counsel, accountants
and other skilled persons to be selected and employed by them, and Owner Trustee
shall not be liable for anything done, suffered or omitted in good faith by it
in accordance with the actions, advice or opinion of any such counsel,
accountants or other skilled persons.
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Section 3.12 Owner Trustee Acts as Trustee. In accepting the
Trust, Owner Trustee acts solely as trustee hereunder and not in any individual
capacity, and all persons other than Trustor having any claim against the Owner
Trustee by reason of the transactions contemplated hereby shall not have any
recourse to Owner Trustee in its individual capacities.
Section 3.13 No Expenses for Owner Trustee. Owner Trustee
shall not have any obligation by virtue of this Agreement to expend or risk any
of its own funds, or to take any action which could, in the reasonable opinion
of Owner Trustee, result in any cost or expense being incurred by Owner Trustee.
Owner Trustee shall not be required to take any action or refrain from taking
any action under this Agreement unless it shall have been indemnified by Trustor
in a manner and form satisfactory to Owner Trustee against any liability, cost
or expense (including reasonable attorneys' fees) which may be incurred in
connection therewith. No provisions of this Agreement shall be deemed to impose
any duty on Owner Trustee to take any action if Owner Trustee shall have been
advised by counsel that such action would expose it to personal liability, is
contrary to the terms hereof or is contrary to law.
Section 3.14 Notice of Event of Default. In the event that a
responsible officer in the Corporate Trust Department of the Owner Trustee shall
have actual knowledge of a default or an event of default under any Lease, the
Owner Trustee shall give or cause to be given prompt notice of such default or
event of default to the Trustor. The Owner Trustee shall take such action with
respect to such default or event of default as shall be specified in written
instructions from the Trustor. For all purposes of this Agreement and any Lease,
in the absence of actual knowledge of a responsible officer in the Corporate
Trust Department of the Owner Trustee, the Owner Trustee shall not be deemed to
have knowledge of a default or event of default unless notified in writing by
the Trustor.
Section 3.15 Certain Duties and Responsibilities of Owner
Trustee.
(a) Owner Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement and in any Lease,
and no implied duties, covenants or obligations shall be read into this
Agreement or any Lease against Owner Trustee; Owner Trustee agrees that it will
not manage, control, possess, use, sell, lease, dispose of or otherwise deal
with the Aircraft or any other part of the Trust Estate, except as required by
the terms of any Lease and as otherwise expressly provided herein, and in no
event will Owner Trustee permit any party to possess or use the Aircraft, except
that Owner Trustee shall, from time to time, lease the Aircraft to any Lessee
under and upon the terms and conditions of any Lease, and/or Owner Trustee shall
distribute the Aircraft pursuant to written instruction of the Trustor.
(b) Whether or not herein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to Owner Trustee shall be subject to the
provisions of this Section 3.15.
Section 3.16 No Representations or Warranties as to the
Aircraft or Documents. OWNER TRUSTEE MAKES (i) NO REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, AS TO THE VALUE, CONDITION, DESIGN, OPERATION,
MERCHANTABILITY OR FITNESS FOR USE OF THE AIRCRAFT OR AS TO THE TITLE THERETO,
OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE AIRCRAFT WHATSOEVER,
except that Xxxxx Fargo Bank Northwest, National Association, in its individual
capacity warrants that on the date on which the Aircraft is transferred to the
Trust contemplated by this TRUST AGREEMENT, Owner Trustee shall have
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received whatever title was conveyed to it, and (ii) no other representations or
warranties are made by the Owner Trustee other than to the extent expressly made
herein by Owner Trustee, except that Owner Trustee represents and warrants that
it has full right, power and authority to enter into, execute, deliver and
perform this Agreement and that this Agreement constitutes the legal, valid and
binding obligation of the Owner Trustee.
ARTICLE 4
THE TRUST ESTATE
Section 4.01 Authorization and Direction to Owner Trustee.
Trustor hereby authorizes and directs Owner Trustee, not individually but solely
as Owner Trustee hereunder, and Owner Trustee covenants and agrees:
(a) to execute and deliver each agreement, instrument or
document to which Owner Trustee is a party in the respective forms thereof in
which delivered from time to time by Trustor for execution and delivery and,
subject to the terms hereof, to exercise its rights and perform its duties under
any Lease in accordance with the terms thereof, including without limitation,
accepting title to, and delivery of, the Aircraft and leasing the Aircraft to
any Lessee or, subject to the provisions of Section 7 hereof, distributing the
Aircraft to Trustor pursuant to the specific written instructions of Trustor;
(b) to effect the registration of the Aircraft with the FAA by
duly executing and filing or causing to be filed with the FAA (i) the Aircraft
Registration Application, (ii) the Affidavit, (iii) the FAA Xxxx of Sale, (iv)
an executed counterpart of this Agreement, and (v) any other document or
instrument required therefor;
(c) to execute and deliver each other document referred to in
any Lease or which Owner Trustee is required to deliver pursuant to any Lease or
this Agreement; and
(d) subject to the terms of this Agreement, to perform the
obligations and duties and exercise the rights of Owner Trustee under any Lease.
Section 4.02 Supplier Warranties. Trustor hereby assigns to
Owner Trustee any and all warranties and indemnities of, and other claims
against, any supplier relating to the Aircraft.
Section 4.03 Advances by Trustor. Trustor shall make advances
to Owner Trustee in such amounts and at such times as may be necessary to permit
Owner Trustee to satisfy its obligations under any Lease and this Trust
Agreement.
ARTICLE 5
DISTRIBUTIONS
Section 5.01 Receipts. Except as otherwise provided in this
Agreement, any payment received by Owner Trustee for which provision as to the
application thereof is made in any Lease shall be applied promptly to the
purpose for which such payment shall have been made in accordance with the terms
of such Lease; and any payment received by Owner Trustee for which no provision
as to the application thereof is made in any Lease or in this Article 5
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shall, unless Trustor shall have otherwise instructed Owner Trustee in writing,
be distributed promptly to Trustor.
Section 5.02 Manner of Making Distributions. Owner Trustee shall make all
distributions to Trustor under this Agreement and any Lease promptly upon the
receipt of proceeds available for distribution, but shall not be obligated to
make any distributions until the funds therefor have been received by Owner
Trustee. All distributions to Trustor hereunder shall be made to such account
and in such manner as Trustor shall from time to time direct in writing.
ARTICLE 6
INDEMNIFICATION OF OWNER TRUSTEE BY TRUSTOR
Section 6.01 INDEMNIFICATION Trustor hereby agrees, whether or not any of
the transactions contemplated hereby shall be consummated, to assume liability
for, and hereby shall indemnify, protect, save and keep harmless Xxxxx Fargo
Bank Northwest, National Association, in its individual capacity and its
successors, assigns, legal representatives, agents and servants, from and
against any and all liabilities, obligations, losses, damages, penalties, taxes
(excluding any taxes payable by Xxxxx Fargo Bank Northwest, National Association
in its individual capacity on or measured by any compensation received by Xxxxx
Fargo Bank Northwest, National Association in its individual capacity for its
services hereunder), claims, actions, suits, costs, expenses or disbursements
(including, without limitation, reasonable ongoing fees of Owner Trustee and
reasonable attorneys' fees and expenses) of any kind and nature whatsoever which
may be imposed on, incurred by or asserted against Xxxxx Fargo Bank Northwest,
National Association in its individual capacity (whether or not also indemnified
against by a Lessee under any Lease or also indemnified against by any other
person) in any way relating to or arising out of this Agreement or any Lease or
the enforcement of any of the terms hereof or 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 Owner Trustee or Xxxxx Fargo Bank Northwest, National Association in its
individual capacity hereunder, except (a) in the case of willful misconduct or
gross negligence on the part of Owner Trustee or Xxxxx Fargo Bank Northwest,
National Association in its individual capacity in the performance or
nonperformance of its duties hereunder, or (b) those resulting from the
inaccuracy of any express representation or warranty of Xxxxx Fargo Bank
Northwest, National Association in its individual capacity (or from the failure
of Xxxxx Fargo Bank Northwest, National Association in its individual capacity
to perform any of its covenants) contained in this Agreement or any Lease, or
(c) in the case of the failure to use ordinary care on the part of Owner Trustee
or Xxxxx Fargo Bank Northwest, National Association in its individual capacity
in the disbursement of funds. The indemnities contained in this Article 6 extend
to Xxxxx Fargo Bank Northwest, National Association only in its individual
capacity and shall not be construed as indemnities of the Trust Estate. The
Indemnities contained in this Article 6 shall survive the termination of this
Agreement. In addition, and to secure the foregoing indemnities, Owner Trustee
shall have a lien on the Trust Estate, which shall be prior to any interest
therein of Trustor.
ARTICLE 7
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TERMINATION
Section 7.01 Termination Date. The Trust shall terminate without any notice
or other action of Owner Trustee upon the earlier of (a) such date as may be
provided by agreement between Trustor and Owner Trustee and the sale or other
final disposition by the Owner Trustee of all property constituting the Trust
Estate or (b) twenty one years less one day after the earliest execution of this
Trust Agreement by any party hereto.
Section 7.02 Distribution of Trust Estate Upon Termination. Upon any
termination of the Trust pursuant to the provisions of Section 7.01 hereof,
Owner Trustee shall convey the Trust Estate to Trustor or its nominee.
ARTICLE 8
MISCELLANEOUS
Section 8.01 Nature of Title of Trustor. Trustor shall not have legal title
to any part of the Trust Estate. No transfer, by operation of law or otherwise,
of the right, title and interest of Trustor in and to the Trust Estate or the
trusts hereunder, in accordance with the terms hereof, shall operate to
terminate this Agreement or the trusts hereunder or entitle any successor or
transferee of Trustor to an accounting or to the transfer of it of legal title
to any part of the Trust Estate.
Section 8.02 Power of Owner Trustee to Convey. Any assignment, sale,
transfer or other conveyance by Owner Trustee of the interest of Owner Trustee
in the Aircraft or any part thereof made pursuant to the terms of this Agreement
or any Lease shall bind Trustor and shall be effective to transfer or convey all
right, title and interest of Owner Trustee and Trustor in and to the Aircraft or
such part thereof. No permitted purchaser or other permitted 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 Owner Trustee.
Section 8.03 Trust Agreement for Benefit of Certain Parties Only. Nothing
herein, whether expressed or implied, shall be construed to give any person
other than Owner Trustee and Trustor any legal or equitable right, remedy or
claim under or in respect of this Agreement; but this Agreement shall be held to
be for the sole and exclusive benefit of Owner Trustee and Trustor.
Section 8.04 Notices. Unless otherwise expressly provided herein, all
notices, instructions, demands and other communications hereunder shall be in
writing and shall be delivered personally or sent by registered or certified
mail, postage prepaid and return receipt requested, or sent by facsimile
transmission, with a confirming copy sent by air mail, postage prepaid, and the
date of personal delivery or facsimile transmission or 7 business days after the
date of mailing (other than in the case of the mailing of a confirming copy of a
facsimile transmission), as the case may be, shall be the date of such notice,
in each case addressed (i) if to the Owner Trustee, to Xxxxx Fargo Bank
Northwest, National Association at its office at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx
Xxxx, Xxxx, 00000 Attention: Corporate Trust Department MAC: U1254-031 and (ii)
if the Trustor, to Xxxxxx X. Xxxxxxx, UBICS Holding Company, 000 Xxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, XX 00000.
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Section 8.05 Co-Trustee 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 Owner Trustee being advised
by counsel shall determine that it is so necessary or prudent in the interest of
Trustor or Owner Trustee, or Owner Trustee shall have been directed to do so by
Trustor, Owner Trustee and Trustor 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) approved by Owner Trustee and
Trustor, either to act as co-trustee jointly with Owner Trustee, or to act as
separate trustee hereunder (any such co-trustee or separate trustee being herein
sometimes referred to as "additional trustee"). In the event Trustor shall not
have joined in the execution of such agreements supplemental hereto within 10
days after the receipt of a written request from Owner Trustee so to do, or in
case an event of default, as defined in any Lease, shall have occurred and be
continuing, Owner Trustee may act under the foregoing provisions of this Section
8.05 without the concurrence of Trustor; and Trustor hereby appoints Owner
Trustee its agent and attorney-in-fact to act for it under the foregoing
provisions of this Section 8.05 in either of such contingencies.
Every additional trustee hereunder shall, to the extent permitted by law,
be appointed and act, and Owner Trustee and its successors shall act, subject to
the following provisions and conditions:
(a) all powers, duties, obligations and rights conferred upon Owner Trustee
in respect of the custody, control and management of moneys, the Aircraft or
documents authorized to be delivered hereunder or under any Lease shall be
exercised solely by Owner Trustee;
(b) all other rights, powers, duties and obligations conferred or imposed
upon Owner Trustee shall be conferred or imposed upon and exercised or performed
by 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) 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 hereunder, except jointly with, or with the consent
in writing of, Owner Trustee;
(d) no trustee hereunder shall be personally liable by reason of any act or
omission of any other trustee hereunder;
(e) Trustor, at any time, by an instrument in writing may remove any such
additional trustee. In the event that Trustor shall not have executed any such
instrument within 10 days after the receipt of a written request from Owner
Trustee so to do, Owner Trustee shall have the power to remove any such
additional trustee without the concurrence of Trustor; and Trustor hereby
appoints 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, this Agreement or any Lease.
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Section 8.06 Situs of Trust; Application Law. The Trust has been accepted
by Owner Trustee and will be administered in the State of Utah. The validity,
construction and enforcement of this Agreement shall be governed by the laws of
the State of Utah without giving effect to principles of conflict of law. If any
provision of this Agreement shall be invalid or unenforceable, the remaining
provisions hereof shall continue to be fully effective, provided that such
remaining provisions do not increase the obligations or liabilities of Owner
Trustee.
Section 8.07 Amendment. This Agreement may not be amended, modified,
supplemented, or otherwise altered except by an instrument in writing signed by
the parties thereto.
Section 8.08 Successors and Assigns. In accordance with the terms hereof,
this Agreement shall be binding upon and shall inure to the benefit of, and
shall be enforceable by, the parties hereto and their respective successors and
permitted assigns, including any successive holder of all or any part of
Trustor's interest in the Trust Estate.
Section 8.09 Headings. The headings of the Articles and Sections of this
Agreement are inserted for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
Section 8.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
and such counterparts together shall constitute and be one and the same
instrument.
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IN WITNESS WHEREOF, Owner Trustee and Trustor have caused this Agreement to
be duly executed all as of the date first above written.
TRUSTOR:
UBICS HOLDING COMPANY,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President & CEO
OWNER TRUSTEE:
XXXXX FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
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