Exhibit A-5 to Note Purchase Agreement
THIS AGREEMENT HAS BEEN PREPARED BASED UPON THE ASSUMPTION THAT BOTH SERIES
G AND SERIES C EQUIPMENT NOTES WILL BE ISSUED. IF SERIES C EQUIPMENT NOTES
ARE NOT ISSUED ON A PARTICULAR CLOSING DATE, THIS AGREEMENT SHALL BE
MODIFIED TO REMOVE REFERENCES TO SERIES C EQUIPMENT NOTES AND TO MAKE OTHER
RELATED CHANGES.
AFFIDAVIT OF CITIZENSHIP
[OWNER PARTICIPANT]
STATE OF _______________ }
} SS.
COUNTY OF ____________ }
I, _______________, being duly sworn, depose and say, that:
1. I am the duly qualified and acting [Assistant] Secretary of [Owner
Participant] (the "Corporation");
2. The Corporation is duly organized under the laws of the State of
__________;
3. The [Chief Executive Officer/President] and two-thirds or more of the
Board of Directors and other managing officers of the Corporation are
individuals who are citizens of the United States of America;
4. At least seventy-five percent (75%) of the voting interest of the
Corporation is owned or controlled by persons or corporations who are
citizens of the United States of America;
5. Accordingly, the Corporation is a "Citizen of the United States" as
defined in Section 40102(a)(15) of Title 49 of the United States Code.
SWORN to this ____ day of __________, ____.
[OWNER PARTICIPANT]
By:____________________________
Name:
Title:
SWORN AND SUBSCRIBED TO
before me this ____ day of
__________, ____
Notary Public
My Commission Expires on _________________
TRUST AGREEMENT
(US Airways, Inc. Trust No. N___U_)
Dated as of _________ __, ____
between
[OWNER PARTICIPANT],
Owner Participant
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Owner Trustee
One Airbus A330 Aircraft
FAA Registration Xxxx N___U_
TRUST AGREEMENT
(US Airways, Inc. Trust No. N___U_)
This TRUST AGREEMENT (US Airways, Inc. Trust No. N___U_) dated
as of _________ __, ____ between [OWNER PARTICIPANT], a __________
corporation (the "Owner Participant"), and FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association (in its individual capacity,
"FSB") and otherwise not in its individual capacity but solely as trustee
hereunder (herein in such capacity with its permitted successors and
assigns called the "Owner Trustee") (as hereafter from time to time
supplemented or amended, this or the "Trust Agreement");
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein, FSB and the Owner Participant hereby agree as
follows:
W I T N E S S E T H:
ARTICLE I
DEFINITIONS AND TERMS
SECTION 1.01 CERTAIN DEFINITIONS. Capitalized terms used but
not defined herein shall have the respective meanings set forth or
incorporated by reference, and shall be construed and interpreted in the
manner described, in Annex A.
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 shall continue to 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
SECTION 3.01 ACCEPTANCE OF AIRCRAFT. 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, on the
Delivery Date, subject to due compliance with the terms of Section 3.02
hereof:
(a) purchase the Aircraft pursuant to the Participation
Agreement and the Xxxx of Sale;
(b) accept from Lessee the delivery of the Xxxx of Sale and the
FAA Xxxx of Sale;
(c) cause the Aircraft to be leased to Lessee under the Lease,
and in furtherance thereof execute and deliver a Lease Supplement
covering the Aircraft;
(d) execute and deliver the Trust Supplement covering the
Aircraft;
(e) 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
(f) effect the registration of the Aircraft in the name of the
Owner Trustee by filing or causing to be filed with the FAA: (i) the
FAA Xxxx of Sale; (ii) an application for registration of the Aircraft
in the name of the Owner Trustee (including without limitation an
affidavit from the Owner Trustee in compliance with the provisions of
14 C.F.R. section 47.7(c)(2)(ii)(1979)); and (iii) the Trust
Agreement.
SECTION 3.02 CONDITIONS PRECEDENT. The right and obligation of
the Owner Trustee to take the action required by Section 3.01 hereof with
respect to the Aircraft shall be subject to the following conditions
precedent:
(a) the 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 2 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 Owner Participant and
the Owner Trustee.
SECTION 3.03 AUTHORIZATION IN RESPECT OF A TERMINATION OF THE
LEASE AND ASSUMPTION OF THE EQUIPMENT NOTES. 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 7(u) of the
Participation Agreement upon Lessee's purchasing the Aircraft pursuant to
Section 9(d), 19(b) or 20 of the Lease and upon Lessee's assuming the
indebtedness evidenced by the Equipment Notes in accordance with the
provisions of such Section 7(u).
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
xxxx of sale or bills of sale (if tendered), and the invoice, if any,
with respect to the Replacement Airframe and Replacement Engines, if
any, or the Replacement Engine being furnished pursuant to Section
10(a) or (b) of the Lease;
(c) in the case of a Replacement Airframe, make application to
the Federal Aviation Administration for the registration in the name
of the Owner Trustee of the Aircraft of which such Replacement
Airframe is a part;
(d) execute and deliver a Lease Supplement and a Trust
Supplement covering (i) the Aircraft of which such Replacement
Airframe is part or (ii) such Replacement Engine, as the case may be;
(e) transfer its interest in (without recourse except as to
obligations in respect of Lessor Liens) 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 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 of the Lease, subject to due compliance with the
terms of such Section 5:
(a) accept from Lessee the xxxx of sale with respect to such
engine contemplated by such Section 5 (if tendered);
(b) transfer its interest in (without recourse except as to
obligations in respect of Lessor Liens) and to an Engine to Lessee as
contemplated by such Section 5; and
(c) request in writing that the Indenture Trustee execute and
deliver to Lessee appropriate instruments to release the Engine being
transferred to Lessee pursuant to such Section 5 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 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 (the trust office of the Owner Trustee shall be the principal
corporate trust office of the Owner Trustee at 00 Xxxxx Xxxx Xxxxxx, Xxxx
Xxxx Xxxx, Xxxx 00000, Attention: Corporate Trust Department, or the
principal corporate trust office of any successor 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 a Lease Default or an event which with the passage of time or
the giving of notice or both would constitute 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 within 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 FSB 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 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 Section 8.01 hereof and in clause (U) of Section 7(k) of the
Participation Agreement); (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. FSB agrees
that it will, in its individual capacity and at its own cost or expense
(but without any right of indemnity in respect of any such cost or expense
under Section 7.01 hereof) promptly take such action as may be necessary to
duly discharge and satisfy in full all Lessor Liens which it is required to
discharge pursuant to Section 7(f) of the Participation Agreement and
otherwise comply with the terms of said Section binding on it.
SECTION 5.05 SATISFACTION OF CONDITIONS PRECEDENT. Anything
herein to the contrary notwithstanding, the Owner Trustee shall comply with
the provisions of Section 3.01 hereof upon the satisfaction, to the
satisfaction of special counsel for the Owner Trustee, of all the
applicable conditions precedent specified in Section 3.02 hereof and in
Section 4 of the Participation Agreement.
SECTION 5.06 NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Owner Trustee shall not have any power, right or
authority to, and the Owner Trustee agrees that it will not, manage,
control, use, sell, dispose of or otherwise deal with the Aircraft or any
other part of the Trust Estate except (i) as expressly required by the
terms of any of the Operative Documents to which the Owner Trustee is a
party, (ii) as expressly provided by the terms hereof, or (iii) as
expressly provided in written instructions from the Owner Participant
pursuant to Section 5.01 or 5.02 hereof.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.01 ACCEPTANCE OF TRUSTS AND DUTIES. FSB accepts the
trusts hereby created and agrees to perform the same but only upon the
terms hereof applicable to it. The Owner Trustee also agrees to receive and
disburse all monies received by it constituting part of the Trust Estate
upon the terms hereof. FSB shall not be answerable or accountable under
any circumstances, except (a) for its own willful misconduct or gross
negligence, (b) for performance of the terms of the last sentence of
Section 5.04 hereof, (c) for its or the Owner Trustee's failure to use
ordinary care to disburse funds and (d) for liabilities that may result
from the inaccuracy of any representation or warranty of it (or from the
failure by it to perform any covenant) in Section 6.03 hereof, in Section
6.03 of the Trust Indenture, in Section 4 of the Lease or in Sections 7(a),
7(b), 7(f), 7(g), 7(m), 7(o), 7(p), 7(s) or 7(u) 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 FSB shall have any duty (i) to see to any recording or filing
of any Operative Document or of any supplement to any thereof or to see to
the maintenance of any such recording or filing or any other filing of
reports with the Federal Aviation Administration or other governmental
agencies, except that FSB, in its individual capacity, shall comply with
the reporting requirements set forth in 14 C.F.R. section 47.45 or any
successor provision and the Owner Trustee shall, to the extent that
information for that purpose is supplied by Lessee pursuant to any of the
Operative Documents, complete and timely submit (and furnish the Owner
Participant with a copy of) any and all reports relating to the Aircraft
which may from time to time be required by the Federal Aviation
Administration or any government or governmental authority having
jurisdiction, or (ii) to see to any insurance on the Aircraft or to effect
or maintain any such insurance, whether or not Lessee shall be in default
with respect thereto, other than to forward to the Owner Participant copies
of all reports and other written information which the Owner Trustee
receives from Lessee pursuant to Section 11 of the Lease, (iii) to see to
the payment or discharge of any tax, assessment or other governmental
charge or any lien or encumbrance of any kind owing with respect to,
assessed or levied against any part of the Trust Indenture Estate or the
Trust Estate, except as provided in Section 7 of the Participation
Agreement, or (iv) to inspect Lessee's books and records with respect to
the Aircraft at any time permitted pursuant to the Lease. Notwithstanding
the foregoing, the Owner Trustee will furnish to the Indenture Trustee and
the Owner Participant, promptly upon receipt thereof, duplicates or copies
of all reports, notices, requests, demands, certificates, financial
statements and other instruments furnished to the Owner Trustee under the
Lease or any other Operative Document.
SECTION 6.03 NO REPRESENTATIONS OR WARRANTIES AS TO CERTAIN
MATTERS. NEITHER THE OWNER TRUSTEE NOR FSB MAKES OR SHALL BE DEEMED TO
HAVE MADE (A) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE
TITLE, VALUE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR
USE OF THE AIRCRAFT OR ANY PART THEREOF, OR ANY OTHER REPRESENTATION OR
WARRANTY WITH RESPECT TO THE AIRCRAFT WHATSOEVER, except that FSB in its
individual capacity warrants that on the Delivery Date the Owner Trustee
shall have received whatever title was conveyed to it by Lessee and that
the Aircraft shall during the Term be free of Lessor Liens attributable to
it, or (b) any representation or warranty as to the validity, legality or
enforceability of this Trust Agreement or any Operative Document to which
the Owner Trustee is a party, or any other document or instrument, or as to
the correctness of any statement contained in any thereof except to the
extent that any such statement is expressly made herein or therein as a
representation by FSB in its individual capacity or by the Owner Trustee
and except that FSB in its individual capacity hereby represents and
warrants that this Trust Agreement has been, and (assuming due
authorization, execution and delivery by the 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 23 of the Lease, monies received by the Owner
Trustee hereunder need not be segregated in any manner except to the extent
required by law, and may be deposited under such general conditions as may
be prescribed by law, and the Owner Trustee shall not be liable for any
interest thereon.
SECTION 6.05 RELIANCE UPON CERTIFICATES, COUNSEL AND AGENTS.
The Owner Trustee shall incur no liability to anyone in acting in reliance
upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper
reasonably believed by it to be genuine and reasonably believed by it to be
signed by the proper party or parties. Unless other evidence in respect
thereof is specifically prescribed herein, any request, direction, order or
demand of the Owner Participant or Lessee mentioned herein or in any of the
Operative Documents to which the Owner Trustee is a party shall be
sufficiently evidenced by written instruments signed by a person purporting
to be the chairman of the board, the president, any executive vice
president, any senior vice president or any vice president or a managing
director and in the name of the Owner Participant or Lessee, as the case
may be. The Owner Trustee may accept a copy of a resolution of the Board of
Directors or Executive Committee of Lessee, certified by the secretary or
any assistant secretary of Lessee as duly adopted and in full force and
effect, as conclusive evidence that such resolution has been duly adopted
by said Board or Committee and that the same is in full force and effect.
As to any fact or matter the manner of ascertainment of which is not
specifically described herein, the Owner Trustee may for all purposes
hereof rely on a certificate signed by a person purporting to be the
chairman of the board, the president, any executive vice president, any
senior vice president or any vice president or a managing director of
Lessee, as to such fact or matter, and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be
taken by it in good faith in reliance thereon. In the administration of
trusts hereunder, the Owner Trustee may execute any of the trusts or powers
hereof and perform its powers and duties hereunder directly or through
agents or attorneys and may, at the expense of the Trust Estate, consult
with counsel, accountants and other skilled persons to be selected and
employed by it. The Owner Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the advice or
opinion of any such counsel, accountants or other skilled persons and the
Owner Trustee shall not be liable for the negligence of any such agent,
attorney, counsel, accountant or other skilled person appointed by it with
due care hereunder.
SECTION 6.06 NOT ACTING IN INDIVIDUAL CAPACITY. In acting
hereunder, the Owner Trustee acts solely as trustee and not in its
individual capacity except as otherwise expressly provided herein; and,
subject to the terms of the Participation Agreement and the Trust
Indenture, all persons, other than the Owner Participant, as provided
herein, having any claim against the Owner Trustee by reason of the
transactions contemplated hereby shall look only to the Trust Estate for
payment or satisfaction thereof.
SECTION 6.07 FEES; COMPENSATION. Except as provided in Section
5.03 or 7.01 hereof, the Owner Trustee agrees that it shall have no right
against the Owner Participant or (subject to the provisions of the Trust
Indenture) the Trust Estate for any fee as compensation for its services
hereunder.
SECTION 6.08 TAX RETURNS. The Owner Trustee shall be
responsible for the keeping of all appropriate books and records relating
to the receipt and disbursement of all monies under this Trust Agreement or
any agreement contemplated hereby. The Owner Participant shall be
responsible for causing to be prepared and filed all income tax returns
required to be filed by the Owner Participant. The Owner Trustee shall be
responsible for causing to be prepared, at the request and expense of the
Owner Participant, all income tax returns required to be filed with respect
to the trust created hereby and shall execute and file such returns. The
Owner Participant or the Owner Trustee, as the case may be, upon request,
will furnish the Owner Trustee or the Owner Participant, as the case may
be, with all such information as may be reasonably required from the Owner
Participant or the Owner Trustee, as the case may be, in connection with
the preparation of such income tax returns.
ARTICLE VII
INDEMNIFICATION OF OWNER TRUSTEE
BY OWNER PARTICIPANT
SECTION 7.01 OWNER PARTICIPANT TO INDEMNIFY OWNER TRUSTEE. The
Owner Participant hereby agrees, whether or not any of the transactions
contemplated hereby shall be consummated, to assume liability for, and
hereby indemnify, protect, save and keep harmless FSB in its individual
capacity and its successors, assigns, legal representatives, agents and
servants, from and against any and all liabilities, obligations, losses,
damages, penalties, taxes (excluding any taxes payable by FSB in its
individual capacity on or measured by any compensation received by FSB in
its individual capacity for its services hereunder or in connection with
the transactions contemplated by the Operative Documents), claims, actions,
suits, costs, expenses or disbursements (including, without limitation,
reasonable ongoing fees of the Owner Trustee, reasonable legal fees and
expenses, and including without limitation any liability of an owner, any
strict liability and any liability without fault) of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against FSB in
its individual capacity (whether or not also indemnified against by Lessee
under the Lease or under the Participation Agreement or also indemnified
against by any other person but only to the extent not otherwise paid or
reimbursed by Lessee or such other person) in any way relating to or
arising out of this Trust Agreement or any of the Operative Documents or
the enforcement of any of the terms of any thereof, or in any way relating
to or arising out of the manufacture, purchase, acceptance, nonacceptance,
rejection, ownership, delivery, lease, possession, use, operation,
condition, sale, return or other disposition of the Aircraft (including,
without limitation, latent and other defects, whether or not discoverable,
and any claim for patent, trademark or copyright infringement), or in any
way relating to or arising out of the administration of the Trust Estate or
the action or inaction of the Owner Trustee or FSB in its individual
capacity hereunder, except (a) in the case of willful misconduct or gross
negligence on the part of the Owner Trustee or FSB in its individual
capacity in the performance or nonperformance of its duties hereunder or
(b) those resulting from the inaccuracy of any representation or warranty
of FSB in its individual capacity (or from the failure of FSB in its
individual capacity to perform any covenant) in Section 6.03 hereof, in
Section 6.03 of the Trust Indenture or, with respect to representations or
warranties of FSB in its individual capacity only, in Section 4 of the
Lease, in Sections 7(a), 7(b), 7(f), 7(g), 7(m), 7(o), 7(p), 7(s) or 7(u)
of the Participation Agreement or in any of the other Operative Documents
or (c) as may result from a breach by FSB in its individual capacity of its
covenants in the last sentence of Section 5.04 hereof or (d) in the case of
the failure to use ordinary care on the part of the Owner Trustee or FSB in
its individual capacity in the disbursement of funds. The indemnities
contained in this Section 7.01 extend to FSB only in its individual
capacity and shall not be construed as indemnities of the Trust Indenture
Estate or the Trust Estate (except to the extent, if any, that FSB in its
individual capacity has been reimbursed by the Trust Indenture Estate or
the Trust Estate for amounts covered by the indemnities contained in this
Section 7.01). The indemnities contained in this Section 7.01 shall survive
the termination of this Trust Agreement. In addition, if necessary, FSB in
its individual capacity shall be entitled to indemnification from the Trust
Estate, subject to the Lien of the Trust Indenture, for any liability,
obligation, loss, damage, penalty, tax, claim, action, suit, cost, expense
or disbursement indemnified against pursuant to this Section 7.01 to the
extent not reimbursed by Lessee, the Owner Participant or others, but
without releasing any of them from their respective agreements of
reimbursement; and to secure the same FSB in its individual capacity shall
have a Lien on the Trust Estate, subject to the Lien of the Trust
Indenture, which shall be prior to any interest therein of the Owner
Participant. The payor of any indemnity under this Article VII shall be
subrogated to any right of the person indemnified in respect of the matter
as to which such indemnity was paid.
ARTICLE VIII
TRANSFER OF THE OWNER PARTICIPANT'S INTEREST
SECTION 8.01 TRANSFER OF INTERESTS. All provisions of Section
7(k) of the Participation Agreement shall (with the same force and effect
as if set forth in full, mutatis, 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. In addition to the provisions of
Section 7(k) of the Participation Agreement: (i) any such transfer 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
Equipment Notes remain unpaid, such transferee and its transferor shall
have complied with all of the terms of Section 7(k) of the Participation
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
7(a) 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 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").
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, 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; 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 Equipment
Notes 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 9 of the Participation Agreement, the Owner
Trustee will execute any amendment, supplement or other modification of
this Trust Agreement or of any other Operative Document to which the Owner
Trustee is a party which it is requested to execute by the Owner
Participant, except that the Owner Trustee shall not execute any such
amendment, supplement or other modification which, by the express
provisions of any of the above documents, requires the consent of any other
party unless such consent shall have been obtained.
(b) Delivery of Amendments and Supplements to Certain Parties. A
signed copy of each amendment or supplement referred to in Section 10.01(a)
hereof shall be delivered by the Owner Trustee to Lessee, the Indenture
Trustee and each holder of a Equipment Note.
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) twenty-one years less one day after the
death of the last survivor of all of the descendants of the grandparents of
Xxxxxx X. Xxxxxxx 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 7(k) 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 Equipment Note register maintained pursuant to Section 2.07 of
the Trust Indenture.
(b) Each of the parties hereto (A) hereby irrevocably submits
itself to the non-exclusive jurisdiction of the United States District
Court for the Southern District of New York and to the non-exclusive
jurisdiction of the Supreme Court of the State of New York, New York
County, for the purposes of any suit, action or other proceeding arising
out of this Trust Agreement, the Participation Agreement, the Lease, the
Tax Indemnity Agreement or any other Operative Document, the subject matter
of any thereof or any of the transactions contemplated hereby or thereby
brought by any party or parties thereto, or their successors or assigns,
and (B) hereby waives, and agrees not to assert, by way of motion, as a
defense, or otherwise, in any such suit, action or proceeding, to the
extent permitted by applicable law, that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper, or that the Participation Agreement, the Lease, the
Tax Indemnity Agreement or any other Operative Document or the subject
matter of any thereof or any of the transactions contemplated hereby or
thereby may not be enforced in or by such courts.
SECTION 11.06 SEVERABILITY. Any provision hereof which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 11.07 WAIVERS, ETC. No term or provision hereof may be
changed, waived, discharged or terminated orally, but only by an instrument
in writing entered into in compliance with the terms of Article X hereof;
and any waiver of the terms hereof shall be effective only in the specific
instance and for the specific purpose given.
SECTION 11.08 COUNTERPARTS. This Trust Agreement may be executed
by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 11.09 BINDING EFFECT, ETC. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Owner Trustee and its successors and assigns, and the Owner Participant,
its successors and, to the extent permitted by Article VIII hereof, its
assigns. Any request, notice, direction, consent, waiver or other
instrument or action by the Owner Participant shall bind its successors and
assigns. Any Owner Participant which shall cease to have any ownership
interest shall thereupon cease to be a party hereto or an Owner Participant
for any reason and shall have no further obligations hereunder.
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.
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.
[OWNER PARTICIPANT]
BY ______________________________
Name:
Title:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION
BY_______________________________
Name:
Title:
