Exhibit 4(a)(1)
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PASS THROUGH TRUST AGREEMENT
Dated as of ______, 200__
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Pass Through Trustee
and
FEDERAL EXPRESS CORPORATION
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CROSS REFERENCE SHEET
Between
Provisions of the Trust Indenture Act of 1939, as amended,
and the Pass Through Trust Agreement:
Section of the
Section of the Act Agreement
------------------ --------------
310(a)(1) and (2).........................................10.02
310(a)(3).................................................10.05
310(a)(4).................................................Art. VII
310(a)(5).................................................10.02
310(b)(i)-(iii)...........................................10.01, 10.03
310(b)(remainder).........................................*
310(c)....................................................Inapplicable
311(a)....................................................*
311(b)....................................................10.06
311(c)....................................................Inapplicable
312(a)....................................................2.12, 4.01
312(b)....................................................*
312(c)....................................................4.02
313(a)....................................................4.04
313(b)(1).................................................*
313(b)(2).................................................*
313(c)....................................................4.04
313(d)....................................................*
314(a)....................................................4.03
314(b)....................................................Inapplicable
314(c)(1) and (2).........................................13.07
314(c)(3).................................................Inapplicable
314(d)(1).................................................*
314(d)(2).................................................*
314(d)(3).................................................*
314(e)....................................................13.07
314(f)....................................................Inapplicable
315(a), (c) and (d).......................................*
315(b)....................................................7.11
315(e)....................................................*
316(a)(1).................................................7.09, 7.10
316(a)(2).................................................11.01
--------
* Intentionally deleted.
Section of the
Section of the Act Agreement
------------------ --------------
316(a)(last sentence).....................................6.04
316(b)....................................................7.08
316(c)....................................................6.01(b)
317(a)....................................................7.03, 7.05
317(b)....................................................3.04
318(a)....................................................13.08
TABLE OF CONTENTS
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ARTICLE I
Definitions
ARTICLE II
Issuance of Pass Through Certificates; Acquisition of Equipment
Certificates
Section 2.01. Amount Unlimited; Issuable in Series; Series Supplements.......13
Section 2.02. Acquisition of Equipment Certificates..........................15
Section 2.03. Initial Certificateholders as Grantors.........................17
Section 2.04. Limitation of Powers...........................................18
Section 2.05. Execution of Pass Through Certificates.........................18
Section 2.06. Certificate of Authentication..................................18
Section 2.07. Form and Denomination of Pass Through Certificates.............19
Section 2.08. Registration, Transfer and Exchange............................19
Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Pass Through
Certificates................................................20
Section 2.10. Cancellation of Pass Through Certificates; Destruction Thereof.22
Section 2.11. Temporary Pass Through Certificates............................22
Section 2.12. Pass Through Certificates Issuable in the Form of a Registered
Global Certificate..........................................23
ARTICLE III
Certain Representations, Warranties and Covenants
Section 3.01. Covenants of the Company.......................................25
Section 3.02. Offices for Payments; Registrar................................26
Section 3.03. Representations and Warranties of the Pass Through Trustee.....27
Section 3.04. Paying Agents..................................................28
Section 3.05. No Representations or Warranties as to Documents...............28
Section 3.06. Payments from Trust Property Only..............................29
Section 3.07. Limitation of the Company's Liability..........................29
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ARTICLE IV
Certificateholder Lists and Reports by the Company and the Pass
Through Trustee
Section 4.01. Certificateholder Lists; Ownership of Pass Through
Certificates..............................................29
Section 4.02. Disclosure of Certificateholder Lists..........................30
Section 4.03. Reports by the Company.........................................30
Section 4.04. Reports by the Pass Through Trustee............................31
ARTICLE V
Receipt and Distribution of Income and Proceeds from the Trust
Property
Section 5.01. Certificate Account and Special Payments Account...............31
Section 5.02. Distributions from Certificate Account and Special Payments
Account.....................................................32
Section 5.03. Statements to Certificateholders...............................33
Section 5.04. Investment of Special Payment Moneys...........................34
Section 5.05. Withholding Taxes..............................................35
ARTICLE VI
Concerning the Certificateholders
Section 6.01. Evidence of Action Taken by Certificateholders.................35
Section 6.02. Proof of Execution of Instruments and of Holding of
Certificates..............................................36
Section 6.03. Certificateholders to Be Treated as Owners.....................36
Section 6.04. Pass Through Certificates Owned by the Company and Related
Owner Trustees Deemed Not Outstanding.......................36
Section 6.05. Right of Revocation of Action Taken............................38
Section 6.06. ERISA..........................................................38
ARTICLE VII
Remedies of Pass Through Trustee and Certificateholders
Section 7.01. Events of Default..............................................39
Section 7.02. Incidents of Sale of Equipment Certificates....................41
Section 7.03. Pass Through Trustee May Prove Debt............................42
Section 7.04. Remedies Cumulative............................................43
Section 7.05. Suits for Enforcement..........................................43
Section 7.06. Discontinuance of Proceedings..................................43
Section 7.07. Limitations on Suits by Certificateholders.....................44
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Section 7.08. Unconditional Right of Certificateholders to Receive Principal,
Interest and Premium, and to Institute Certain Suits........44
Section 7.09. Control by Certificateholders..................................45
Section 7.10. Waiver of Past Events of Default...............................46
Section 7.11. Notice of Pass Through Defaults................................46
ARTICLE VIII
Concerning the Pass Through Trustee
Section 8.01. Acceptance by Pass Through Trustee.............................47
Section 8.02. Pass Through Trustee's Liens...................................47
Section 8.03. Certain Rights of the Pass Through Trustee.....................47
Section 8.04. Pass Through Trustee Not Responsible for Recitals..............49
Section 8.05. Pass Through Trustee and Agents May Hold Pass Through
Certificates; Collections...................................49
Section 8.06. Moneys Held by Pass Through Trustee............................49
Section 8.07. Right of Pass Through Trustee to Rely on Officer's Certificate.50
Section 8.08. Compensation...................................................50
ARTICLE IX
Indemnification of Pass Through Trustee by the Company
ARTICLE X
Successor Trustees
Section 10.01. Resignation and Removal of Pass Through Trustee; Appointment
of Successor.............................................52
Section 10.02. Persons Eligible for Appointment as Pass Through Trustee......54
Section 10.03. Acceptance of Appointment by Successor Trustee................54
Section 10.04. Merger, Conversion, Consolidation or Succession to Business
of Pass Through Trustee..................................56
Section 10.05. Appointment of Separate Pass Through Trustees.................56
Section 10.06. Preferential Claims...........................................58
ARTICLE XI
Supplements and Amendments to This Pass Through Agreement and
Other Documents
Section 11.01. Supplemental Agreements Without Consent of
Certificateholders........................................59
Section 11.03. Effect of Supplemental Agreements.............................62
Section 11.04. Documents to Be Given to Trustee..............................63
Section 11.05. Notation on Pass Through Certificates in Respect of
Supplemental Agreements..................................63
Section 11.06. Trust Indenture Act...........................................63
Section 11.07. Revocation and Effect of Consents.............................63
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Section 11.08. Amendments, Waivers, Etc. of Related Indenture Documents......63
ARTICLE XII
Termination of Pass Through Trusts; Unclaimed Moneys
Section 12.01. Termination of Pass Through Trusts............................64
Section 12.02. Application by Pass Through Trustee of Funds Deposited for
Payment of Pass Through Certificates.....................65
Section 12.03. Repayment of Moneys Held by Paying Agent......................65
ARTICLE XIII
Miscellaneous
Section 13.01. Capacity in Which Acting......................................66
Section 13.02. No Legal Title to Trust Property in Certificateholders........66
Section 13.03. Certificates Nonassessable and Fully Paid.....................66
Section 13.04. Pass Through Agreement for the Benefit of the Company, the
Pass Through Trustee and the Certificateholders..........66
Section 13.05. Limitation on Rights of Certificateholders....................67
Section 13.06. Notices.......................................................67
Section 13.07. Officer's Certificate and Opinion of Counsel; Statements to
Be Contained Therein.....................................68
Section 13.08. Conflict of Any Provision of Pass Through Agreement with the
Trust Indenture Act......................................69
Section 13.09. Severability..................................................69
Section 13.10. No Oral Modifications or Continuing Waivers...................69
Section 13.11. Successors and Assigns........................................70
Section 13.12. Headings......................................................70
Section 13.13. Normal Commercial Relations...................................70
Section 13.14. Governing Law; Counterpart Form...............................70
Section 13.15. Distributions Due on Days Other than Business Days............70
Section 13.16. Registration of Equipment Certificates in Name of
Subordination Agent......................................70
Exhibit A Form of Pass Through Certificate
Exhibit B Form of Series Supplement
iv
PASS THROUGH TRUST AGREEMENT
PASS THROUGH TRUST AGREEMENT dated as of ______, 200__, between FEDERAL
EXPRESS CORPORATION, a Delaware corporation (together with its permitted
successors and assigns, the "Company"), and FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, as Pass Through Trustee (together
with any successor hereunder or under any Pass Through Trust as herein
provided, the "Pass Through Trustee").
RECITALS
WHEREAS, capitalized terms used herein shall have the respective meanings
set forth or referred to in Article I hereof;
WHEREAS, from time to time the Company will enter into a Series Supplement
with the Pass Through Trustee named therein in accordance with this Pass
Through Agreement pursuant to which the Pass Through Trustee will declare the
creation of a separate Pass Through Trust for the benefit of the
Certificateholders of the Series of Pass Through Certificates to be issued
pursuant to such Pass Through Trust, and the initial Certificateholders of such
Series, as the grantors of such Pass Through Trust, by their respective
acceptances of such Pass Through Certificates, will join in the creation of
such Pass Through Trust;
WHEREAS, the Pass Through Certificates of each Series will evidence
fractional undivided interests in the Pass Through Trust pursuant to which they
will be issued, and will have no rights, benefits or interest in respect of any
other separate Pass Through Trust or the Trust Property held in any such other
Pass Through Trust subject, however, to the provisions of any Intercreditor
Agreement to which one or more Pass Through Trusts may be a party;
WHEREAS, for each Pass Through Trust, the Pass Through Trustee will
purchase one or more issues of Equipment Certificates of the same interest rate
and ranking in respect of priority of payment as, and final maturity dates not
later than the final scheduled Regular Distribution Date of, the Series of Pass
Through Certificates to be issued in respect of such Pass Through Trust and
will hold such Equipment Certificates in trust as Trust Property for the
benefit of the Certificateholders of such Series;
WHEREAS, to facilitate the sale of Equipment Certificates to, and the
purchase of Equipment Certificates by, the Pass Through Trustee on behalf of
each such Pass Through Trust, the Company has duly authorized the execution and
delivery of this Pass Through Agreement and each Series Supplement as the
"issuer," as such term is defined in and solely for purposes of the Securities
Act,
of the Pass Through Certificates to be issued in respect of each Pass Through
Trust and as the "obligor," as such term is defined in and solely for purposes
of the Trust Indenture Act, with respect to all such Pass Through Certificates
and is undertaking to perform certain administrative duties hereunder and to
pay the fees and expenses of the Pass Through Trustee;
WHEREAS, this Pass Through Agreement, as amended or supplemented from time
to time, is subject to the provisions of the Trust Indenture Act and shall, to
the extent applicable, be governed by such provisions;
IT IS HEREBY COVENANTED AND AGREED by and between the parties hereto as
follows:
ARTICLE I
Definitions
The following terms (except as otherwise expressly provided or unless the
context otherwise clearly requires) for all purposes of this Pass Through
Agreement have the respective meanings specified in this Article I, as amended
or supplemented by the provisions of the Series Supplement for a particular
Series. All other terms used in this Pass Through Agreement that are defined in
the Trust Indenture Act or the definitions of which in the Securities Act are
referred to in the Trust Indenture Act (except as herein otherwise expressly
provided or unless the context otherwise clearly requires), have the meanings
assigned to such terms in the Trust Indenture Act and in the Securities Act.
All accounting terms used and not expressly defined herein have the
meanings given to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means the
accounting principles that are generally accepted at the date or time of any
computation or otherwise at the date hereof.
The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Pass Through Agreement as a whole and not to any
particular Article, Section or other subdivision. References to designated
"Articles," "Sections," "subsections" and other subdivisions of this Pass
Through Agreement are to the designated Articles, Sections, subsections and
other subdivisions of this Pass Through Agreement. The terms defined in this
Article include the plural as well as the singular.
2
"Affiliate," has for any Person, the meaning specified in Rule 0-2 under
the Trust Indenture Act.
"Business Day" means, for any Series, any day other than Saturday, Sunday
or other day on which commercial banks in Salt Lake City, Utah, New York, New
York or Memphis, Tennessee, or any other city in which the Pass Through Trustee
for the Pass Through Trust for such Series maintains an office for the receipt
or disbursement of funds for the transactions contemplated herein are
authorized or required by law to close.
"Certificate Account" means, for any Pass Through Trust, the account or
accounts created and maintained for such Pass Through Trust pursuant to Section
5.01(a) hereof and the related Series Supplement.
"Certificateholder" means, for any Series, the Person who is the
registered holder of any Pass Through Certificate as evidenced on the Register
for such Series.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission of the United
States, or if at any time after the execution and delivery of this Pass Through
Agreement such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties on such date.
"Controlling Party" means the Person entitled to act as such pursuant to
the terms of any Intercreditor Agreement.
"Corporate Trust Office" means the office of the Pass Through Trustee
identified in Section 13.06 hereof or such other office as the Pass Through
Trustee shall have specified by notice in writing to the Company and the
Certificateholders of each Series, or the office of any successor Pass Through
Trustee.
"Cut-off Date for Pass Through Trust" means, for any Pass Through Trust,
the date specified as such in the related Series Supplement.
"Delivery Date" means, for any Pass Through Trust, the date specified in
the related Series Supplement for the purchase of the related Equipment
Certificates, which date may be delayed for any such Equipment Certificates as
provided in Section 2.02 hereof.
3
"Delayed Delivery Notice" means, for any Pass Through Trust, a certificate
signed by a Responsible Officer of the Company (i) requesting that the Pass
Through Trustee temporarily delay purchase of any related Equipment
Certificates to a date later than the applicable Issuance Date, (ii) stating
the amount of the purchase price of each such Equipment Certificate and the
aggregate purchase price of all such Equipment Certificates, (iii) stating the
reasons for such delay and (iv) with respect to any Participation Agreement for
such delayed Equipment Certificates, either (1) setting or resetting the
Delivery Date (which shall be on or prior to the applicable Cut-off Date for
Pass Through Trust), or (2) indicating that such Delivery Date will be set by
subsequent written notice not less than one Business Day prior to such new
Delivery Date (which shall be on or prior to the applicable Cut-off Date for
Pass Through Trust).
"Delayed ECs" means, for any Pass Through Trust, any Equipment
Certificates that are the subject of a Delayed Delivery Notice.
"Deposit Trust" means a separate trust created pursuant to a Deposit Trust
Agreement.
"Deposit Trust Account" means, for any Deposit Trust, the deposit account
established and maintained for such Deposit Trust pursuant to the related
Deposit Trust Agreement.
"Deposit Trust Agreement" means an agreement in form and substance
reasonably satisfactory to the Company and the Pass Through Trustee for the
purposes described in Section 2.02 hereof, between the Company, as depositor,
the Pass Through Trustee and the Deposit Trustee.
"Deposit Trust Funds" means, for any Delayed ECs, an amount equal to the
purchase price of such Delayed ECs.
"Deposit Trustee" means, for any Deposit Trust, the Person, acceptable to
the Pass Through Trustee, defined as such in the related Deposit Trust
Agreement.
"Depository" means, for any Series, the depository of the Registered
Global Certificate, if any, representing the Pass Through Certificates of such
Series and any successor to such depository appointed by the Company pursuant
hereto. Such depository initially shall be The Depository Trust Company, a New
York corporation, or any successor thereto registered under the Exchange Act or
other applicable statute or regulation.
"Distribution Date" means, for any Series, any Regular Distribution Date
or Special Distribution Date or both for such Series.
4
"Dollars" and "$" mean lawful currency of the United States of America.
"Equipment Certificate" means, for any Pass Through Trust, any of the
Equipment Trust Certificates or Equipment Purchase Certificates, issued
pursuant to an Indenture and described in, or on a schedule attached to, the
Series Supplement for such Pass Through Trust.
"Equipment Purchase Certificate" means, for any Pass Through Trust, any
"Equipment Purchase Certificate," as such term is defined in the related
Indenture, issued by the Company pursuant to an Indenture and described in, or
on a schedule attached to, the Series Supplement for such Pass Through Trust,
which is to be held by the Pass Through Trustee as part of the Trust Property
of such Pass Through Trust.
"Equipment Trust Certificate" means, for any Pass Through Trust, any
"Equipment Trust Certificate," as such term is defined in the related
Indenture, issued by an Owner Trustee pursuant to such Indenture and described
in, or on a schedule attached to, the Series Supplement for such Pass Through
Trust, which is to be held by the Pass Through Trustee as part of the Trust
Property of such Pass Through Trust.
"Event of Default" has the meaning specified in Section 7.01 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fractional Undivided Interest" means, for any Pass Through
Certificate, the fractional undivided interest in the related Pass Through
Trust that is evidenced thereby.
"Government Obligations" means direct obligations of the United States of
America which are not callable, redeemable or payable prior to maturity, in
whole or in part, directly or indirectly, by any Person.
"Indenture" means (i) for any Equipment Trust Certificate, the trust
indenture and security agreement among the Indenture Trustee, the Owner Trustee
and, if applicable, the Company pursuant to which such Equipment Trust
Certificate is issued and (ii) for any Equipment Purchase Certificate, the
trust indenture and security agreement between the Indenture Trustee and the
Company pursuant to which such Equipment Purchase Certificate is issued, in
each case as such agreement may be modified, supplemented or amended from time
to time in accordance with the related Indenture Documents.
5
"Indenture Default" means, for any Indenture, any event or condition
defined as a "Default" in such Indenture.
"Indenture Documents" means (i) for any Equipment Trust Certificate, the
related Indenture, the related Trust Agreement and the related Lease, in each
case as defined in such Indenture, and the related Participation Agreement and
(ii) for any Equipment Purchase Certificate, the related Indenture, the related
Indenture Addendum, as defined in such Indenture, and the related Participation
Agreement.
"Indenture Event of Default" means, for any Indenture, any event or
condition defined as an "Indenture Event of Default" in such Indenture.
"Indenture Trustee" means, for any Equipment Certificate, the Person
defined as such in the related Indenture.
"Initial Regular Distribution Date" means, for any Pass Through Trust, the
first Regular Distribution Date on which a Scheduled Payment is to be made
following the Issuance Date for such Pass Through Trust.
"Intercreditor Agreement" means any agreement by and among one or more
Pass Through Trusts, one or more Liquidity Providers and a Subordination Agent
providing for the distribution of payments made in respect of Equipment
Certificates held by such Pass Through Trusts.
"Issuance Date" means, for any Pass Through Trust, the date of the
issuance of the related Pass Through Certificates.
"Lease" means, for any Equipment Trust Certificate, the agreement between
the Company, as lessee, and an Owner Trustee, as lessor, that is defined as the
"Lease" in the related Indenture.
"Letter of Representations" means, for any Series, a letter from the
Company and the Pass Through Trustee to, and accepted by, the Depository in
form and substance satisfactory to the Company and the Pass Through Trustee for
the purposes of the related Series Supplement, as such letter may be modified
or supplemented, or any successor letter thereto.
"Lien" means any mortgage, pledge, lien, charge, disposition of title,
encumbrance, lease or security interest.
"Liquidity Facility" means, with respect to the Pass Through Certificates
of any Series, any revolving credit agreement or similar facility or letter of
credit
6
relating to the Pass Through Certificates of such Series between a Liquidity
Provider and a Subordination Agent, as amended, replaced, supplemented or
otherwise modified from time to time in accordance with its terms and the terms
of any Intercreditor Agreement.
"Liquidity Provider" means, with respect to the Pass Through Certificates
of any Series, a bank or other financial institution that agrees to provide
Liquidity Facilities with respect to the Pass Through Certificates of such
Series for the benefit of the Certificateholders.
"Majority in Interest of Certificateholders" means, for any Series at any
time, Pass Through Certificates of such Series then Outstanding (or the proxy
therefor) representing in the aggregate not less than a majority of the
aggregate Fractional Undivided Interests of the Pass Through Certificates then
Outstanding under the related Pass Through Trust.
"Officer's Certificate" means a certificate signed by a Responsible
Officer of the Company, any Indenture Trustee or any Owner Trustee, as the case
may be, delivered to the Pass Through Trustee. Each such certificate shall
include the statements provided for in Section 13.07 hereof.
"Opinion of Counsel" means a written opinion of legal counsel, who in the
case of counsel (a) for the Company may be (i) an attorney employed by the
Company who is generally empowered to deliver such written opinions, or (ii)
other counsel designated by the Company and reasonably satisfactory to the Pass
Through Trustee and (b) for any Owner Trustee or Indenture Trustee, an attorney
selected by such Person and reasonably satisfactory to the Pass Through Trustee
and the Company.
"Outstanding" means, when used with respect to Pass Through Certificates
of any Series, as of the date of determination and subject to the provisions of
Section 6.04 hereof, all Pass Through Certificates theretofore authenticated
and delivered for such Series, with the exception of the following:
(i) Pass Through Certificates theretofore cancelled by the Pass
Through Trustee or delivered to the Pass Through Trustee for
cancellation pursuant to Section 2.10 hereof;
(ii) All Pass Through Certificates of such Series if money in the
amount required to make the final distribution thereon in accordance
with Section 12.01 hereof has been theretofore deposited with the Pass
Through Trustee in trust for the Certificateholders of such Series
pending such final distribution; and
7
(iii) Pass Through Certificates in exchange for or in lieu of which
other Pass Through Certificates have been authenticated and delivered
pursuant to Article II hereof.
"Overdue Scheduled Payment" means, for any Pass Through Trust, any
Scheduled Payment that is not received within seven Business Days after the
Regular Distribution Date applicable to such Scheduled Payment.
"Owner Participant" means, for any Equipment Trust Certificate, the Person
defined as such in the related Indenture.
"Owner Trustee" means, for any Equipment Trust Certificate, the Person
defined as such in the related Indenture.
"Participation Agreement" means (i) for any Equipment Trust Certificate,
the agreement among the Company, the Owner Participant, the Owner Trustee, the
Indenture Trustee, the Subordination Agent, if applicable, the Pass Through
Trustee and, if applicable, each Original Loan Participant (as defined in such
Participation Agreement), that is defined as the "Participation Agreement" in
the related Indenture and pursuant to which the Pass Through Trustee agrees to
purchase such Equipment Trust Certificate upon the issuance thereof by such
Owner Trustee and (ii) for any Equipment Purchase Certificate, the agreement
among the Company, the Indenture Trustee and the Pass Through Trustee that is
defined as the "Transfer Agreement" in the related Indenture and pursuant to
which the Pass Through Trustee agrees to purchase such Equipment Purchase
Certificate from the Banks (as defined in such Participation Agreement).
"Pass Through Agreement," "this Pass Through Agreement" and other like
words mean this Pass Through Trust Agreement as the same may be modified,
supplemented or amended from time to time in accordance with the provisions
hereof, but does not include, unless otherwise specified, any Series
Supplement.
"Pass Through Certificate" means, for any Series, any of the certificates
executed, authenticated and delivered for such Series by the Pass Through
Trustee, in accordance with this Pass Through Agreement and pursuant to the
related Series Supplement.
"Pass Through Default" means, for any Pass Through Trust, an Event of
Default or an event or condition that, with the giving of notice or the lapse
of time or both, would become an Event of Default.
8
"Pass Through Trust" means a separate trust created in accordance with
this Pass Through Agreement by a Series Supplement incorporating the provisions
hereof, as such provisions may be amended or supplemented thereby, the estate
of which consists of the related Trust Property.
"Pass Through Trustee" means the institution executing this Pass Through
Agreement as Pass Through Trustee, or its successor in interest, and any
successor or other trustee appointed as provided herein; provided that if the
same institution is not acting as the Pass Through Trustee in respect of all
Series, the phrase "the Pass Through Trustee" shall, unless the context
otherwise requires, mean, as to any Series, the institution named in the
applicable Series Supplement as Pass Through Trustee in respect of such Series,
or its successor in interest and any successor or other trustee appointed as
provided herein.
"Paying Agent" has the meaning set forth in Section 3.04 hereof.
"Permitted Investments" means (a) direct obligations of the United
States of America or obligations fully guaranteed by the United States of
America; (b) commercial paper rated A-1/P-1 by Standard & Poor's Ratings Group
and Xxxxx'x Investors Service, Inc., respectively or, if such ratings are
unavailable, rated by any nationally recognized rating organization in the
United States equal to the highest rating assigned by such rating organization;
(c) overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers; and (d) overnight repurchase
agreements with respect to the securities described in clause (a) above entered
into with an office of a bank or trust company which is located in the United
States of America of any bank or trust company which is organized under the
laws of the United States or any state thereof and has capital, surplus and
undivided profits aggregating at least $500 million.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust,
nonincorporated organization or government or any agency or political
subdivision thereof.
"Pool Balance" means, unless otherwise provided in the Series Supplement,
for any Pass Through Trust, as of any date of determination the aggregate
unpaid principal amount of the Equipment Certificates that constitute Trust
Property of such Pass Through Trust on such date plus the amount of the
principal payments on such Equipment Certificates held by the Pass Through
Trustee and not yet distributed plus the amount of any moneys transferred to
the Company and deposited in the related Deposit Trust Account (other than
earnings thereon and without giving effect to any losses on investments
thereof). The Pool Balance as of any Regular Distribution Date or Special
Distribution Date shall be
9
computed after giving effect to the payment of principal, if any, on such
Equipment Certificates and the distribution thereof being made on that date.
"Pool Factor" means, unless otherwise provided in the Series Supplement,
for any Pass Through Trust, as of any date of determination the quotient
(rounded to the seventh decimal place) computed by dividing (i) the Pool
Balance by (ii) the aggregate original amount of the Pass Through Certificates
of the related Series. The Pool Factor as of any Regular Distribution Date or
Special Distribution Date shall be computed after giving effect to the payment
of principal, if any, on such Equipment Certificates and the distribution
thereof being made on that date.
"Principal Corporate Trust Office" means the Corporate Trust Department of
the Pass Through Trustee located at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx
00000, or the office designated as such by the Pass Through Trustee.
"PTC Event of Default," if applicable, has the meaning set forth in the
related Series Supplement.
"Record Date," for any Series, means, (i) for any Regular Distribution
Date, the date specified in the related Series Supplement as the Record Date
for such Regular Distribution Date and (ii) for any Special Distribution Date,
the 15th day preceding such Special Distribution Date, in any event, whether or
not such date is a Business Day.
"Register" has the meaning set forth in Section 3.02 hereof.
"Registered Global Certificate" means, for any Series, each Pass Through
Certificate, if any, issued to the Depository in accordance with Article II
hereof and bearing the legend prescribed in Section 2.12(a) hereof.
"Registrar" has the meaning set forth in Section 3.02 hereof.
"Regular Distribution Date" means, for any Pass Through Trust, any date
specified in the related Series Supplement for the distribution of any
Scheduled Payment from such Pass Through Trust to the related
Certificateholders.
"Related Indenture Trustee" means, for any Pass Through Trust, any
Indenture Trustee under an Indenture relating to any Equipment Certificate that
constitutes Trust Property thereof, and "Related Indenture Trustees" means all
10
such Indenture Trustees for all such Equipment Certificates constituting Trust
Property thereof.
"Related Owner Participant" means, for any Pass Through Trust, any Owner
Participant under a Trust Agreement relating to any Equipment Trust Certificate
that constitutes Trust Property, and "Related Owner Participants" means all
such Owner Participants for all such Equipment Trust Certificates constituting
Trust Property thereof.
"Related Owner Trustee" means, for any Pass Through Trust, any Owner
Trustee under a Trust Agreement relating to any Equipment Trust Certificate
that constitutes Trust Property, and "Related Owner Trustees" means all such
Owner Trustees for all such Equipment Trust Certificates constituting Trust
Property thereof.
"Responsible Officer" means the president or any vice president; or, in
the case of the Pass Through Trustee, an officer or authorized agent in its
Corporate Trust Department.
"Scheduled Payment" means, for any Pass Through Trust, any scheduled
payment of principal of (whether by installment or redemption or otherwise) and
interest on any Equipment Certificate that constitutes Trust Property thereof
to be made in the amounts and on the date set forth for such payment in such
Equipment Certificate, but does not include any Overdue Scheduled Payment.
"Securities Act" means the Securities Act of 1933, as amended.
"Series" means a separate series of Pass Through Certificates issued
pursuant to this Pass Through Agreement and a Series Supplement.
"Series Supplement" means an agreement executed and delivered by the
Company and the Pass Through Trustee in accordance with this Pass Through
Agreement, incorporating the provisions hereof, as amended or supplemented
thereby, and creating a separate Pass Through Trust for the benefit of the
Certificateholders of the Series of Pass Through Certificates to be issued
under such Pass Through Trust.
"Special Distribution Date" means, for any Pass Through Trust, any date
specified in the related Series Supplement for the distribution of any Special
Payment from such Pass Through Trust to the related Certificateholders.
"Special Payment" means, for any Pass Through Trust, any payment
(including any Overdue Scheduled Payment) other than a Scheduled Payment on
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any Equipment Certificate that constitutes Trust Property thereof, any proceeds
from the sale of such Equipment Certificate pursuant to Article VII hereof or
any payment by the Company pursuant to the last two paragraphs of Section
2.02(b) hereof.
"Special Payments Account" means, for any Pass Through Trust, the account
or accounts created and maintained for such Pass Through Trust pursuant to
Section 5.01(b) hereof and the related Series Supplement.
"Specified Investments" has, for any Deposit Trust, the meaning set forth
for such term in the related Deposit Trust Agreement.
"Subordination Agent" has the meaning specified therefor in any
Intercreditor Agreement.
"Triggering Event" has the meaning specified therefor in any Intercreditor
Agreement.
"Trust Agreement" means, for any Equipment Trust Certificate, the
agreement between an Owner Trustee and an Owner Participant that is defined as
the "Trust Agreement" in the related Indenture.
"Trust Indenture Act" means (except as otherwise provided in Section 11.06
hereof) the Trust Indenture Act of 1939, as amended, as in force at the date as
of which this Pass Through Agreement was first qualified under such Act.
"Trust Property" means, for any Pass Through Trust, (i) all money,
instruments, including the related Equipment Certificates, and other property
held as the property of such Pass Through Trust, including all distributions
thereon and proceeds thereof and (ii) all rights of the Pass Through Trust and
the Pass Through Trustee, on behalf of the Pass Through Trust, under any
Intercreditor Agreement or any Liquidity Facility, including, without
limitation, all rights to receive certain payments thereunder, and all monies
paid to the Pass Through Trustee on behalf of the Pass Through Trust pursuant
to any Intercreditor Agreement or any Liquidity Facility.
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ARTICLE II
Issuance of Pass Through Certificates;
Acquisition of Equipment Certificates
Section 2.01. Amount Unlimited; Issuable in Series; Series Supplements.
(a) The aggregate amount of Pass Through Certificates that may be authenticated
and delivered in accordance with this Pass Through Agreement is unlimited.
The Pass Through Certificates may be issued from time to time in one or
more Series, each Series relating to a separate Pass Through Trust, and shall
be designated generally as the "Pass Through Certificates," with further
designations added or incorporated in the title for the Pass Through
Certificates of any Series as specified in the related Series Supplement. Each
Pass Through Certificate shall bear upon its face the designation so selected
for the Series to which it belongs. All Pass Through Certificates of the same
Series shall be substantially identical except as to denomination and as may
otherwise be provided in the related Series Supplement.
The Pass Through Certificates of each Series will evidence fractional
undivided interests in the separate Pass Through Trust formed by the related
Series Supplement, and, except as may be contained in any Intercreditor
Agreement, will have no rights, benefits or interest in respect of any other
separate Pass Through Trust or the Trust Property held in such other Pass
Through Trust. All Pass Through Certificates of the same Series shall be in all
respects equally and ratably entitled to the benefits of the related Pass
Through Trust without preference, priority, or distinction on account of the
actual time or times of authentication and delivery, all in accordance with the
terms and provisions of this Pass Through Agreement and the related Series
Supplement.
(b) The following matters shall be established for the Pass Through
Certificates of each Series in a Series Supplement executed and delivered by
the Company and the Pass Through Trustee:
(1) the formation of the Pass Through Trust in which the Pass Through
Certificates of such Series evidence fractional undivided interests
and its designation (which designation shall distinguish such Pass
Through Trust from each other Pass Through Trust);
(2) the specific title of the Pass Through Certificates of such
Series (which title shall distinguish the Pass Through Certificates of
the Series from each other Series);
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(3) subject to Section 2.02(a) hereof, any limit upon the aggregate
amount of the Pass Through Certificates of such Series that may be
authenticated and delivered under this Pass Through Agreement;
(4) the related Cut-off Date for the Pass Through Trust;
(5) the related Regular Distribution Dates;
(6) the related Special Distribution Dates;
(7) if other than as provided in Section 3.02 hereof, the Registrar
or the Paying Agent for such Series, including any Co-Registrar or
additional Paying Agent;
(8) if other than as provided in Section 2.07 hereof, the
denominations in which the Pass Through Certificates of such Series
are issuable;
(9) the specific form of the Pass Through Certificates of such Series
and whether or not the Pass Through Certificates of such Series are to
be issued as one or more Registered Global Certificates and if the
Pass Through Certificates are to be issued as one or more Registered
Global Certificates, the Depository for the Registered Global
Certificates and the Letter of Representations;
(10) a description of the Equipment Certificates to be acquired by
and held in the related Pass Through Trust and of the related Indenture
Documents;
(11) provisions with respect to the terms for which the definitions
set forth in Article I hereof permit or require further specification
in the related Series Supplement;
(12) whether the Pass Through Certificates are eligible for purchase
by ERISA Plans (as defined in Section 6.06 hereof) and, if applicable,
any restrictions on purchases of Pass Through Certificates by ERISA
Plans;
(13) the acceptance of appointment by the institution named to act as
Pass Through Trustee with respect to such Series if different from the
institution executing this Pass Through Agreement or its successor;
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(14) whether such series will be subject to an Intercreditor Agreement
and, if so, the specific designation of such Intercreditor Agreement;
(15) any other terms of the Pass Through Certificates of such Series
(which terms shall not be inconsistent with the provisions of the
Trust Indenture Act as in effect at the time of the execution and
delivery of such Series Supplement or adversely affect the interest of
the Certificateholders of any Series outstanding at the time),
including any terms that may be required or advisable under United
States laws or regulations or advisable in connection with the
marketing of the Series;
(16) a description of any cross-default or cross-collateralization
provisions in the related Indenture; and
(17) a description of any subordination provisions among the holders
of Pass Through Certificates, including any cross-subordination
provisions among the holders of Pass Through Certificates in separate
Pass Through Trusts.
(c) At any time and from time to time after the execution and delivery of
this Pass Through Agreement, the Company and the Pass Through Trustee may
execute and deliver one or more Series Supplements, each forming a separate
Pass Through Trust and establishing the terms of the Pass Through Certificates
of the related Series, and pursuant to which the Pass Through Certificates of
such Series shall be executed, authenticated and delivered by the Pass Through
Trustee to the Person specified by the Company upon request of the Company and
upon satisfaction of any conditions precedent set forth in the related Series
Supplement on the Issuance Date for such Series.
Section 2.02. Acquisition of Equipment Certificates. (a) Pass Through
Certificates of a Series executed, authenticated and delivered by the Pass
Through Trustee upon request of the Company in accordance with Section 2.01(c)
hereof shall equal the aggregate principal amount of the Equipment Certificates
to be purchased by the Pass Through Trustee pursuant to the related
Participation Agreements, and evidence the entire ownership of the related Pass
Through Trust. The Pass Through Trustee shall issue and sell such Pass Through
Certificates, in authorized denominations and in such Fractional Undivided
Interests, so as to result in the receipt of consideration in an amount equal
to the aggregate principal amount of such Equipment Certificates and,
concurrently therewith, the Pass Through Trustee shall purchase, pursuant to
the terms and conditions of the Participation Agreements, the Equipment
Certificates (except Delayed ECs, if any) at a purchase price equal to the
amount of such consideration so received.
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Except as provided in Sections 2.08 and 2.09 hereof, the Pass Through Trustee
shall not execute, authenticate or deliver Pass Through Certificates of such
Series in excess of the aggregate amount determined in accordance with this
subsection (a). The provisions of this subsection (a) are subject to the
provisions of subsection (b) below.
(b) Unless otherwise specified in the Series Supplement, if, on or
prior to an Issuance Date, the Company delivers to the Pass Through Trustee a
Delayed Delivery Notice relating to one or more Delayed ECs, then (i) the Pass
Through Trustee shall postpone the purchase of the specified Delayed ECs, (ii)
the Company, the Pass Through Trustee and the Deposit Trustee shall form a
Deposit Trust, (iii) the Pass Through Trustee shall transfer to the Company the
Deposit Trust Funds relating to such Delayed ECs and (iv) the Company shall
deposit such Deposit Trust Funds into the Deposit Trust Account for such
Deposit Trust. The Deposit Trust Funds so deposited shall be invested pursuant
to the related Deposit Trust Agreement by the Deposit Trustee at the direction
and risk of, and for the benefit of, the Company in Specified Investments. The
Company agrees that withdrawals shall be made from any Deposit Trust Account
only as provided in the related Deposit Trust Agreement.
Upon notice from the Company on one or more occasions that any Delayed ECs
are available for purchase and upon the satisfaction of the closing conditions
specified in the applicable Participation Agreements and the related Series
Supplement on or prior to the related Cut-off Date for Pass Through Trust, the
Company shall cause the related Deposit Trust Funds to be withdrawn from the
related Deposit Trust Account and paid to the Pass Through Trustee, free and
clear of any Lien under the Deposit Trust Agreement, and the Pass Through
Trustee shall purchase the applicable Delayed ECs with such Deposit Trust
Funds. The purchase price for such Delayed ECs shall equal the principal amount
of such Delayed ECs.
On the Initial Regular Distribution Date for any Pass Through Trust for
which Delayed ECs are purchased pursuant to this subsection, the Company shall
pay, in immediately available funds, to the Pass Through Trustee an amount
equal to the interest that would have accrued on any Delayed ECs purchased
after the related Issuance Date as if such Delayed ECs had been purchased on
such Issuance Date, from such Issuance Date to, but not including, the date of
the purchase of such Delayed ECs for such Pass Through Trust.
If the Company notifies the Pass Through Trustee prior to any Cut-off Date
for Pass Through Trust that any related Delayed ECs will not be issued on or
prior to such Cut-off Date for Pass Through Trust for any reason, on the next
Special Distribution Date for such Pass Through Trust occurring more than 20
16
days following the date of such notice (i) the Company shall (A) pay to the
Pass Through Trustee for deposit in the related Special Payments Account, in
immediately available funds, an amount equal to the interest that would have
accrued on the Delayed ECs designated in such notice at a rate equal to the
interest rate applicable to the related Series from the related Issuance Date
to, but not including, such Special Distribution Date and (B) cause an amount
equal to the amount of Deposit Trust Funds that would have been used to
purchase such Delayed ECs to be withdrawn from the related Deposit Trust
Account and paid to the Pass Through Trustee, free and clear of any Lien under
the Deposit Trust Agreement, and (ii) the Pass Through Trustee shall deposit in
the related Special Payments Account, upon receipt from the Deposit Trustee
pursuant to the related Deposit Trust Agreement, the amount received pursuant
to clause (i)(B) above, and the amount paid by the Company pursuant to clause
(i)(A) above, and such amounts shall be distributed as a Special Payment in
accordance with the provisions hereof.
If, on the Cut-off Date for Pass Through Trust for any Pass Through Trust,
an amount equal to less than all of the Deposit Trust Funds (other than Deposit
Trust Funds referred to in the immediately preceding paragraph) has been used
to purchase related Delayed ECs, on the next Special Distribution Date for such
Pass Through Trust occurring more than 20 days following such Cut-off Date for
Pass Through Trust (i) the Company shall (A) pay to the Pass Through Trustee
for deposit in the related Special Payments Account, in immediately available
funds, an amount equal to the interest that would have accrued on such Delayed
ECs contemplated to be purchased with such unused Deposit Trust Funds (other
than any Deposit Trust Funds referred to in the immediately preceding
paragraph) but not so purchased at a rate equal to the interest rate applicable
to the related Series from the related Issuance Date to, but not including,
such Special Distribution Date and (B) cause such unused Deposit Trust Funds to
be withdrawn from the related Deposit Trust Account and paid to the Pass
Through Trustee, free and clear of any Lien under the Deposit Trust Agreement,
and (ii) the Pass Through Trustee shall deposit in such Special Payments
Account, upon receipt from the Deposit Trustee pursuant to the related Deposit
Trust Agreement, such unused Deposit Trust Funds received pursuant to clause
(i)(B) above, and the amount paid by the Company pursuant to clause (i)(A)
above, and such amounts shall be distributed as a Special Payment in accordance
with the provisions hereof.
Section 2.03. Initial Certificateholders as Grantors. By its acceptance of
any Pass Through Certificate of any Series issued to it under the related Pass
Through Trust, each initial Certificateholder of such Series as grantor of such
Pass Through Trust shall join in the creation and declaration of such Pass
Through Trust.
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Section 2.04. Limitation of Powers. Each Pass Through Trust shall be
constituted solely for the purpose of making the investment in the Equipment
Certificates provided for in the related Series Supplement and, except as set
forth herein or in such Series Supplement, the Pass Through Trustee shall not
be authorized or empowered to acquire any other investments or engage in any
other activities and, in particular, the Pass Through Trustee shall not be
authorized or empowered to do anything that would cause such Pass Through Trust
to fail to qualify as a "grantor trust" for federal income tax purposes
(including as subject to this restriction, acquiring any Aircraft (as defined
in the respective related Indentures) by bidding such Equipment Certificates or
otherwise, or taking any action with respect to any such Aircraft once
acquired).
Section 2.05. Execution of Pass Through Certificates. The Pass Through
Certificates of each Series shall be signed on behalf of the Pass Through
Trustee by a Responsible Officer of the Pass Through Trustee. Such signatures
may be the manual or facsimile signatures of such officer and minor errors or
defects in any reproduction of any such signature shall not affect the validity
or enforceability of any Pass Through Certificate which has been duly
authenticated and delivered by the Pass Through Trustee.
If any Responsible Officer of the Pass Through Trustee who signs any of
the Pass Through Certificates subsequently ceases to be such officer or
authorized agent before the Pass Through Certificate so signed is authenticated
and delivered or disposed of by the Pass Through Trustee, such Pass Through
Certificate nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Pass Through Certificate had not ceased to be
such officer or authorized agent of the Pass Through Trustee; and any Pass
Through Certificate may be signed on behalf of the Pass Through Trustee by such
person or persons as, at the actual date of the execution of such Pass Through
Certificate, are the proper officers or authorized agents of the Pass Through
Trustee, although at the date of the execution and delivery of the related
Series Supplement any such person was not such officer.
Section 2.06. Certificate of Authentication. The Pass Through Trustee
shall duly authenticate and deliver Pass Through Certificates for each Series
in authorized denominations equaling the aggregate principal amount of the
Equipment Certificates to be purchased for the related Pass Through Trust by
the Pass Through Trustee pursuant to the related Participation Agreements, and
evidencing the entire ownership of the related Pass Through Trust. Only such
Pass Through Certificates of such Series as shall bear thereon a certificate of
authentication substantially in the form set forth in Exhibit A, executed by
the Pass Through Trustee by manual or facsimile signature of a Responsible
Officer, shall be entitled to the benefits of the related Pass Through Trust or
be valid or
18
obligatory for any purpose. Such certificate of authentication by the Pass
Through Trustee upon any Pass Through Certificate for such Series executed by
the Pass Through Trustee shall be conclusive evidence that the Pass Through
Certificate so authenticated has been duly authenticated and delivered
hereunder and that the Certificateholder, as evidenced on the Register for such
Series, is entitled to the benefits of the related Pass Through Trust.
Section 2.07. Form and Denomination of Pass Through Certificates. The
Pass Through Certificates of each Series shall be substantially in the form set
forth in Exhibit A hereto. The Pass Through Certificates shall be issuable as
registered securities without coupons and shall be numbered, lettered, or
otherwise distinguished in such manner or in accordance with such plans as set
forth in the related Series Supplement. The Pass Through Certificates of each
Series shall be issued in minimum denominations of $1,000 and integral
multiples thereof and shall be dated the date of their authentication.
The Pass Through Certificates of any Series may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend, not inconsistent with the provisions
of this Pass Through Agreement or the related Series Supplement, as may be
required to comply with any law or with any rules or regulations pursuant
thereto, or with the rules of the Depository or any securities market in which
such Pass Through Certificates are admitted to trading, or to conform to
general usage.
Section 2.08. Registration, Transfer and Exchange. The Pass Through
Trustee will keep at each office or agency to be maintained for any Series for
the purpose as provided in Section 3.02 hereof a Register in which, subject to
such reasonable regulations as it may prescribe, it will register, and will
register the transfer of, Pass Through Certificates of the related Series as
provided in this Article II. Such Register shall be in written form in the
English language.
Upon due presentation for registration of transfer of any Pass Through
Certificate of the related Series at any such office or agency, the Pass
Through Trustee shall execute, authenticate and deliver in the name of the
transferee or transferees a new Pass Through Certificate of such Series in
authorized denominations and for a like aggregate Fractional Undivided
Interest.
Subject to the provisions of Section 2.12 hereof, any Pass Through
Certificate or Pass Through Certificates may be exchanged for a Pass Through
Certificate or Pass Through Certificates of the same Series in other authorized
denominations and for a like aggregate Fractional Undivided Interest. Pass
Through Certificates to be exchanged shall be surrendered at any office or
agency to be maintained by the Pass Through Trustee for the related Series for
the
19
purpose as provided in Section 3.02 hereof, and the Pass Through Trustee shall
execute, authenticate and deliver in exchange therefor the Pass Through
Certificate or Pass Through Certificates which the Certificateholder making the
exchange shall be entitled to receive, bearing numbers not contemporaneously or
previously outstanding.
All Pass Through Certificates presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Pass Through
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Pass Through Trustee duly
executed by, the Certificateholder or such Person's attorney duly authorized in
writing.
The Pass Through Trustee may require payment from the Certificateholder of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any exchange or registration of transfer of Pass
Through Certificates. No service charge to the Certificateholder shall be made
for any such transaction.
All Pass Through Certificates issued upon any transfer or exchange of Pass
Through Certificates shall evidence ownership in the same Pass Through Trust
and be entitled to the same benefits under this Pass Through Agreement and the
applicable Series Supplement, as the Pass Through Certificates surrendered upon
such transfer or exchange.
Resales or other transfers of Pass Through Certificates represented by a
Registered Global Certificate will be conducted in accordance with the
provisions of this Pass Through Agreement, including without limitation Section
6.06 hereof, and the rules and procedures of the Depository applicable to U.S.
corporate pass through certificates and without notice to, or action by, the
Pass Through Trustee.
Neither the Company nor the Pass Through Trustee will have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of, beneficial ownership interests of a Registered
Global Certificate or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Pass Through
Certificates. If any Pass Through Certificate becomes mutilated, defaced or is
apparently destroyed, lost or stolen, the Pass Through Trustee in its
discretion may execute, authenticate and deliver a new Pass Through Certificate
of like Fractional Undivided Interest in the related Pass Through Trust,
bearing a number not contemporaneously or previously outstanding, in exchange
and
20
substitution for the mutilated or defaced Pass Through Certificate, or in lieu
of and in substitution for the Pass Through Certificate so apparently
destroyed, lost or stolen. In every case the applicant for a substitute Pass
Through Certificate shall furnish to the Pass Through Trustee and any agent of
the Pass Through Trustee such security or indemnity as may be required by them
to indemnify and defend and to save each of them harmless from any such
substitution and, in every case of destruction, loss or theft, evidence to
their satisfaction of the apparent destruction, loss or theft of such Pass
Through Certificate and of the ownership thereof.
Upon the issuance of any substitute Pass Through Certificate, the Pass
Through Trustee may require payment from the Certificateholder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the reasonable
fees and expenses of the Pass Through Trustee) connected therewith. If any Pass
Through Certificate of a Pass Through Trust for which a notice of termination
has been or is about to be given pursuant to Section 12.01 hereof becomes
mutilated or defaced or is apparently destroyed, lost or stolen, the Pass
Through Trustee may, instead of issuing a substitute Pass Through Certificate,
pay or authorize the payment of the same (without surrender thereof except in
the case of a mutilated or defaced Pass Through Certificate), if the applicant
for such payment furnishes to the Pass Through Trustee and any agent of the
Pass Through Trustee such security or indemnity as any of them may require to
save each of them harmless from all risks, however remote, resulting from such
payment and, in every case of apparent destruction, loss or theft, the
applicant shall also furnish to the Pass Through Trustee and any agent of the
Pass Through Trustee evidence to their satisfaction of the apparent
destruction, loss or theft of such Pass Through Certificate and of the
ownership thereof.
Every substitute Pass Through Certificate issued pursuant to the
provisions of this Section 2.09 by virtue of the fact that any Pass Through
Certificate is apparently destroyed, lost or stolen will constitute conclusive
evidence of the Fractional Undivided Interest in the applicable Pass Through
Trust evidenced by the Pass Through Certificate that it replaces, whether or
not the apparently destroyed, lost or stolen Pass Through Certificate may be
enforceable at any time by anyone and will be entitled to all the benefits of
(but will be subject to all the limitations of rights set forth in) the
applicable Pass Through Trust equally and proportionately with any and all
other Pass Through Certificates duly authenticated and delivered therefor. All
Pass Through Certificates will be held and owned upon the express condition
that, to the extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced, or apparently
destroyed, lost or stolen Pass Through Certificates and will preclude any and
all other rights or remedies notwithstanding
21
any law or statute existing or hereafter enacted to the contrary with respect
to the replacement or payment of negotiable instruments or other securities
without their surrender.
Section 2.10. Cancellation of Pass Through Certificates; Destruction
Thereof. All Pass Through Certificates surrendered for payment, redemption,
registration of transfer or exchange, if surrendered to any agent of the Pass
Through Trustee, shall be delivered to the Pass Through Trustee for
cancellation or, if surrendered to the Pass Through Trustee, shall be cancelled
by it; and no Pass Through Certificates shall be issued in lieu thereof except
as expressly permitted by any of the provisions of this Pass Through Agreement
or the applicable Series Supplement. The Pass Through Trustee shall destroy
cancelled Pass Through Certificates held by it.
Section 2.11. Temporary Pass Through Certificates. Pending the preparation
of definitive Pass Through Certificates of any Series, the Pass Through Trustee
may execute, authenticate and deliver temporary Pass Through Certificates for
such Series (produced in a form satisfactory to the executing officer or
authorized agent of the Pass Through Trustee, as evidenced by such officer's or
authorized agent's execution thereof). Such temporary Pass Through Certificates
shall be issuable as registered Pass Through Certificates without coupons, of
any authorized denomination, and substantially in the form of the definitive
Pass Through Certificates of such Series but with such omissions, insertions
and variations as may be appropriate for temporary Pass Through Certificates,
all as may be determined by the executing officer of the Pass Through Trustee,
as evidenced by such officer's or authorized agent's execution thereof.
Temporary Pass Through Certificates may contain such reference to any
provisions of this Pass Through Agreement or the applicable Series Supplement
as may be appropriate. Every such temporary Pass Through Certificate shall be
executed and authenticated by the Pass Through Trustee upon the same conditions
and in substantially the same manner, and with like effect, as the definitive
Pass Through Certificates of such Series. Without unreasonable delay the
Company shall furnish definitive Pass Through Certificates for such Series and
thereupon temporary Pass Through Certificates shall be surrendered in exchange
therefor without charge at any office or agency to be maintained by the Pass
Through Trustee for the purpose pursuant to Section 3.02 hereof, and the Pass
Through Trustee shall execute, authenticate and deliver in exchange for such
temporary Pass Through Certificates such definitive Pass Through Certificates
evidencing a like aggregate Fractional Undivided Interest in the applicable
Pass Through Trust in authorized denominations. Until so exchanged, temporary
Pass Through Certificates shall be entitled to the same benefits under the
applicable Pass
22
Through Trust and this Pass Through Agreement as definitive Pass Through
Certificates of the applicable Series.
Section 2.12. Pass Through Certificates Issuable in the Form of a
Registered Global Certificate. For any Series, at the sole option of the
Company as set forth in the related Series Supplement, this Section 2.12 shall
apply to such Series or may be amended with respect to any Series. To the
extent that the provisions of this Section 2.12 conflict with any other
provisions of this Pass Through Agreement, the provisions of this Section 2.12
shall control.
(a) If the Company shall establish pursuant to Section 2.01(b)(9)
hereof that the Pass Through Certificates of a particular Series are to be
issued in whole in the form of a Registered Global Certificate, then the Pass
Through Trustee shall, in accordance with this Article II, execute,
authenticate and deliver, one or more Registered Global Certificates which (i)
shall represent, and shall be denominated in an amount equal to, the aggregate
Fractional Undivided Interests of all of the Pass Through Certificates in the
related Pass Through Trust, (ii) shall be registered in the name of the
Depository or its nominee, (iii) shall be delivered by the Pass Through Trustee
to the Depository or pursuant to the Depository's instruction, and (iv) shall
bear a legend substantially to the following effect: "Unless this Registered
Global Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Pass Through
Trustee or its agent for registration of transfer, exchange or payment, and any
Registered Global Certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein."
No Person acquiring a beneficial interest in a Pass Through Certificate
will be entitled to receive a definitive Pass Through Certificate representing
such Person's interest in the Pass Through Trust, except as provided in
subsection (d) below.
(b) Notwithstanding any other provision of this Section 2.12 or of Section
2.08 hereof, the Registered Global Certificate for any Series may be
transferred, in whole but not in part and in the manner provided in Section
2.08 hereof, by the Depository to a nominee of such Depository or by a nominee
of such Depository to such Depository or another nominee of such Depository or
by such Depository or any such nominee to a successor Depository selected or
23
approved by the Company upon notice to the Pass Through Trustee or to a nominee
of such successor Depository.
(c) The Depository shall be an organization registered as a clearing
agency under the Exchange Act and any other applicable statute or regulation.
(d) If at any time the Depository notifies the Company that it is
unwilling or unable to continue as Depository for such Series or if at any time
the Depository for such Series shall no longer be eligible under subsection (c)
above, and a successor Depository is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition,
as the case may be, this Section 2.12 shall no longer be applicable to the Pass
Through Certificates of such Series and the Pass Through Trustee will execute,
authenticate and deliver Pass Through Certificates of such Series in definitive
registered form without coupons, in authorized denominations, and in an
aggregate Fractional Undivided Interest in the related Pass Through Trust equal
to the Fractional Undivided Interest in the related Pass Through Trust of the
Registered Global Certificate then outstanding in exchange for such Registered
Global Certificate.
The Company may at any time and in its sole discretion determine that the
Pass Through Certificates of any Series shall no longer be represented by a
Registered Global Certificate and that the provisions of this Section 2.12
shall no longer apply to such Pass Through Certificates. In such event the Pass
Through Trustee, upon receipt of an Officer's Certificate evidencing such
determination by the Company, will notify the Depository of the availability of
such Pass Through Certificates in definitive form and will execute,
authenticate and deliver, Pass Through Certificates of such Series in
definitive registered form without coupons, in authorized denominations and in
an aggregate Fractional Undivided Interest in the related Pass Through Trust
equal to the Fractional Undivided Interest in the related Pass Through Trust of
the Registered Global Certificate then outstanding in exchange for such
Registered Global Certificate. Upon the exchange of the Registered Global
Certificate for such Pass Through Certificates in definitive registered form,
such Registered Global Certificate shall be cancelled by the Pass Through
Trustee. Such Pass Through Certificates in definitive registered form issued in
exchange for the Registered Global Certificate pursuant to this subsection (d)
shall be registered in such names and in such authorized denominations as the
Depository shall instruct the Pass Through Trustee. The Pass Through Trustee
shall deliver such Pass Through Certificates to the Persons in whose names such
Pass Through Certificates are so registered. Upon the issuance of Pass Through
Certificates in definitive registered form without coupons, the Pass Through
Trustee shall recognize the Person in whose name such definitive Pass Through
Certificates are registered in the Register from time to time as
Certificateholders hereunder.
24
(e) As long as the Pass Through Certificates of a Series are represented
by a Registered Global Certificate, all distributions for such Series shall be
made to the holder of such Registered Global Certificate as the
Certificateholder of such Series, or to such Persons as such holder may
designate, by wire transfer of immediately available funds on the date such
distributions are due, and the Company shall or shall cause the Pass Through
Trustee to provide to the Depository any notices referred to in the related
Letter of Representations in accordance with such Letter of Representations.
ARTICLE III
Certain Representations, Warranties and Covenants
Section 3.01. Covenants of the Company. (a) The Company will preserve and
maintain all of its rights, privileges and franchises necessary in the normal
conduct of its business; provided that the Company shall not be required to
preserve any right, privilege or franchise if the Company shall reasonably
determine that the loss thereof will not materially adversely affect the
Company's ability to perform its obligations hereunder or under any Series
Supplement.
(b) The Company shall not (i) consolidate with or merge into any other
corporation under circumstances in which the Company is not the surviving
corporation or (ii) convey, transfer or lease all or substantially all of its
assets as an entirety to any Person, unless the corporation formed by such
consolidation or into which the Company is merged or the Person which acquired
by conveyance, transfer or lease substantially all of the assets of the Company
as an entirety shall be a corporation organized and existing under the laws of
the United States of America or any State or the District of Columbia, and
shall execute and deliver to the Pass Through Trustee an agreement reasonably
satisfactory in form and substance to the Pass Through Trustee containing an
effective assumption by such successor corporation of the due and punctual
performance and observance of each covenant and condition to be performed or
observed by the Company hereunder and under each Series Supplement.
(c) Upon any consolidation or merger, or any conveyance, transfer or lease
of substantially all the assets of the Company as an entirety in accordance
with this Section 3.01, the successor corporation formed by such consolidation
or the Person into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company hereunder and under each Series
Supplement with the same effect as if such successor corporation or such
Person, as the case may be, had been named as the Company herein and therein.
No such
25
conveyance, transfer or lease of substantially all of the assets of the Company
as an entirety shall have the effect of releasing the Company or any successor
corporation which shall theretofore have become such in the manner prescribed
in this Section 3.01 from its liability hereunder or under any Series
Supplement.
(d) The Pass Through Trustee shall receive an Opinion of Counsel of
the Company as conclusive evidence that any consolidation, merger, sale, lease
or conveyance, and any assumption complies with the provisions of this Section
3.01 and the Pass Through Trustee shall be entitled to rely upon the same for
all purposes hereof.
Section 3.02. Offices for Payments; Registrar. So long as any Pass Through
Certificates of a Series remain outstanding, the Pass Through Trustee will
maintain the following for such Series: (a) an office or agency where such Pass
Through Certificates may be presented for payment and (b) a facility or agency
in New York, New York where such Pass Through Certificates may be presented or
surrendered for registration of transfer and for exchange and for redemption as
provided in this Pass Through Agreement (the "Registrar"). Written notice of
the location of each such other office or agency and of any change of location
thereof shall be given by the Pass Through Trustee to the Company, any Owner
Trustees, the Indenture Trustees and the Certificateholders of such Series. In
the event that no such office or agency shall be maintained or no such notice
of location or of change of location shall be given, presentations and demands
may be made and notices may be served at the Principal Corporate Trust Office
of the Pass Through Trustee. The Registrar shall keep a register ("Register")
with respect to the Pass Through Certificates of each Series and their transfer
and exchange. The Pass Through Trustee may appoint one or more co-registrars
("Co-Registrars") for any Series and may terminate any such appointment at any
time upon written notice. The term "Registrar" includes any Co-Registrar.
Any Registrar shall be a bank or trust company organized and doing
business under the laws of the United States or any state, with a combined
capital and surplus of at least $100,000,000, or a direct or indirect
subsidiary of such an entity, or a member of a bank holding company group,
having a combined capital and surplus of at least $100,000,000 and such
subsidiary or member itself having a capital and surplus of at least
$10,000,000.
The Pass Through Trustee shall initially act as Registrar and shall
initially serve as an office where Pass Through Certificates can be presented
for payment.
26
Section 3.03. Representations and Warranties of the Pass Through Trustee.
(a) The Pass Through Trustee, in its individual capacity (except with respect
to clause (iv) below), represents, warrants and agrees that:
(i) it is a validly existing national banking association or a bank
or trust company organized or chartered under the laws of a State of
the United States of America and duly organized under the laws of the
United States of America or such State, as the case may be, holding a
valid certificate to do business as a national banking association or
a bank or trust company under the State of the United States of
America where it is organized or chartered, as the case may be, with
banking and trust powers and has the corporate power and authority to
enter into and perform its obligations under this Pass Through
Agreement and any Intercreditor Agreement;
(ii) each of this Pass Through Agreement and any Intercreditor
Agreement has been duly authorized by all necessary corporate action
on its part, and neither the execution and delivery hereof or thereof
nor its performance of any of the terms and provisions hereof or
thereof will violate any federal law or the law of the State of the
United States of America where it is located or regulation relating to
its banking or trust powers or any judgment or order applicable to or
binding on the Pass Through Trustee and will not contravene or result
in any breach of, or constitute any default under its charter or
by-laws or the provisions of any indenture, mortgage, contract or
other agreement to which it is a party or by which it or its
properties may be bound or affected;
(iii) the execution, delivery and performance by the Pass Through
Trustee of this Pass Through Agreement or any Intercreditor Agreement
will not require the authorization, consent, or approval of, the
giving of notice to, the filing or registration with, or the taking of
any other action in respect of, any governmental authority or agency
of the United States of America or the State of the United States of
America where it is located regulating the banking and corporate trust
activities of the Pass Through Trustee other than (i) the registration
of the Pass Through Certificates under the Securities Act and under
the securities laws of any state in which the Pass Through
Certificates may be offered for sale if the laws of such state require
such action and (ii) the qualification of the Pass Through Agreement
under the Trust Indenture Act pursuant to an order of the Securities
and Exchange Commission;
(iv) each of this Pass Through Agreement and any Intercreditor
Agreement has been duly executed and delivered by it and, assuming
that
27
such documents are the legal, valid and binding obligation of the
other parties thereto, is the legal, valid and binding obligation of
the Pass Through Trustee, enforceable against the Pass Through Trustee
in accordance with its terms except as may be limited by bankruptcy,
insolvency, moratorium, reorganization, receivership, fraudulent
conveyance or similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights and
remedies generally from time to time in effect, regardless of whether
such enforceability is considered in a proceeding in equity or at law;
and
(v) each Series Supplement executed by such Pass Through Trustee will
be, upon the date of execution and delivery of such Series Supplement,
executed and delivered by one of its officers or authorized agents
duly authorized to execute and deliver such Series Supplement on its
behalf.
(b) The representations and warranties set forth in subsection (a) above
shall be deemed to be made by the applicable Pass Through Trustee on each
Issuance Date, except as otherwise provided in the applicable Series
Supplement.
Section 3.04. Paying Agents. Whenever the Pass Through Trustee in its sole
discretion shall appoint a paying agent (the "Paying Agent") for any Pass
Through Trust, it will cause the Paying Agent to execute and deliver an
instrument in which the Paying Agent shall agree with the Pass Through Trustee,
subject to the provisions of this Section 3.04,
(a) that it will hold all sums received by it as such agent for
distribution to the Certificateholders of the related Series (whether such sums
have been paid to it by the Pass Through Trustee or the Related Owner Trustee
or Indenture Trustee) in trust for the benefit of the Certificateholders of the
related Series or of the Pass Through Trustee, and
(b) that it will notify the Pass Through Trustee if the principal of or
interest or premium on the Equipment Certificates that constitute Trust
Property of such Pass Through Trust is not paid when the same is due and
payable.
Anything in this Section 3.04 to the contrary notwithstanding, the
agreements to hold sums in trust as provided in this Section 3.04 are subject
to the provisions of Sections 12.03 and 12.04 hereof.
Section 3.05. No Representations or Warranties as to Documents. The Pass
Through Trustee neither makes nor shall be deemed to have made any
representation or warranty as to the validity, legality or enforceability of
any
28
Series Supplement, any related Pass Through Certificates, any Intercreditor
Agreement or any related Indenture Documents or as to the correctness of any
statement contained in any thereof, except for the representations and
warranties of the Pass Through Trustee made in its individual capacity under
this Pass Through Agreement, in any Series Supplement, in any related
Participation Agreement or in any Intercreditor Agreement.
Section 3.06. Payments from Trust Property Only. For any Pass Through
Trust, all payments or distributions to be made to Certificateholders of any
Series under the related Series Supplement by the Pass Through Trustee under
such Pass Through Trust shall be made only from the income and the proceeds
from the related Trust Property and only to the extent that the Pass Through
Trustee shall have received sufficient income or proceeds from such Trust
Property to enable the Pass Through Trustee to make distributions of the
amounts due in respect of the Pass Through Certificates thereunder.
Each Certificateholder of such Series by its acceptance of a related Pass
Through Certificate agrees that it will look solely to the income and proceeds
from the related Trust Property to the extent available for distribution to it
as provided herein and in the related Series Supplement and that the Pass
Through Trustee is not personally or individually liable to such
Certificateholder for any amounts payable under such Pass Through Trust except
as expressly provided herein.
Section 3.07. Limitation of the Company's Liability. The Company is a
party to this Pass Through Agreement solely for purposes of meeting the
requirements of the Trust Indenture Act, and therefore shall not be liable
hereunder, except as otherwise expressly provided herein, or under the terms of
any Series Supplement or any Pass Through Certificates, except as otherwise
expressly provided therein.
ARTICLE IV
Certificateholder Lists and Reports by the Company and the Pass
Through Trustee
Section 4.01. Certificateholder Lists; Ownership of Pass Through
Certificates. (a) For each Series, the Pass Through Trustee shall preserve in
as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of the Certificateholders of such Series. If
the Pass Through Trustee is not the Registrar for such Series, the Company
shall cause the Registrar to furnish to the Pass Through Trustee semi-annually
not more than 15 days after
29
each Record Date, as of such Record Date, or at such other times as the Pass
Through Trustee may request in writing, a list, in such form and as of such
date as the Pass Through Trustee may reasonably require, containing all the
information in the possession or control of the Registrar as to the names and
addresses of the Certificateholders of such Series and the amounts of the Pass
Through Certificates held by such Certificateholders.
(b) For each Series, ownership of the Pass Through Certificates shall be
proved by the Register for such Series kept by the Registrar.
Section 4.02. Disclosure of Certificateholder Lists. Each and every
Certificateholder, by receiving and holding such Pass Through Certificate,
agrees with the Company and the Pass Through Trustee that neither the Company,
the Pass Through Trustee, the Pass Through Trustee in its individual capacity
nor any agent of any of the foregoing shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of any
Certificateholders in accordance with the provisions of Section 312 of the
Trust Indenture Act, regardless of the source from which such information was
derived, and that the Pass Through Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 312(b)
of the Trust Indenture Act.
Section 4.03. Reports by the Company. The Company covenants:
(a) to file with the Pass Through Trustee, within 30 days after the
Company is required to file the same with the Commission, copies of the reports
and documents, which the Company is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act;
(b) to file with the Pass Through Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents, and reports with respect to
compliance by the Company with the conditions and covenants provided for in
this Pass Through Agreement as may be required from time to time by such rules
and regulations;
(c) to transmit to the Certificateholders of each Series in the manner and
to the extent required by Section 313(c) of the Trust Indenture Act, within 30
days after the filing thereof with the Pass Through Trustee, such summaries of
any information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section 4.03 as may be required by
rules and regulations prescribed from time to time by the Commission; and
30
(d) furnish to the Pass Through Trustee, on or before each March 15, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer of the Company as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Pass Through Agreement and each Series Supplement. For purposes of this
subsection (d), such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Pass Through
Agreement or any Series Supplement.
Section 4.04. Reports by the Pass Through Trustee. For each Series, on or
before each May 15, the Pass Through Trustee in respect of such Series shall
transmit, in the manner and to the extent required by Section 313(c) of the
Trust Indenture Act, any report required by Section 313(b) of the Trust
Indenture Act to be transmitted by the Pass Through Trustee to the related
Certificateholders.
ARTICLE V
Receipt and Distribution of Income and Proceeds from the Trust
Property
Section 5.01. Certificate Account and Special Payments Account. (a) The
Pass Through Trustee shall establish and maintain for each Pass Through Trust,
on behalf of the related Certificateholders of each Series, a Certificate
Account as one or more non-interest bearing accounts. In each case, the Pass
Through Trustee shall hold such Certificate Account in trust for the benefit of
such Certificateholders, respectively, and shall make or permit withdrawals
therefrom only as provided in this Pass Through Agreement, the related Series
Supplement or any Intercreditor Agreement. Upon receipt of any Scheduled
Payment, the Pass Through Trustee shall immediately deposit such Scheduled
Payment in the applicable Certificate Account.
(b) The Pass Through Trustee shall establish and maintain, as and when
required, for each Pass Through Trust, on behalf of the related
Certificateholders of each Series, a Special Payments Account as one or more
accounts, which shall be non-interest bearing except as provided in Section
5.04 hereof. In each case, the Pass Through Trustee shall hold such Special
Payments Account in trust for the benefit of such Certificateholders,
respectively, and shall make or permit withdrawals therefrom only as provided
in this Pass Through Agreement, the related Series Supplement or any
Intercreditor Agreement. Upon receipt of any Special Payment, the Pass Through
Trustee shall immediately deposit such Special Payment in the applicable
Special Payments Account.
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Section 5.02. Distributions from Certificate Account and Special Payments
Account. (a) Subject to any Intercreditor Agreement, for each Pass Through
Trust, on each related Regular Distribution Date, or as soon thereafter as the
Pass Through Trustee has confirmed receipt of any Scheduled Payment due on the
related Equipment Certificates on such Regular Distribution Date, the Pass
Through Trustee shall distribute out of the applicable Certificate Account the
entire amount deposited therein pursuant to Section 5.01(a) hereof by paying to
each Certificateholder of the related Series of record at the close of business
on the Record Date for such Regular Distribution Date (except as provided in
Section 12.01 hereof concerning the final distribution), at the address for
such Certificateholder appearing in the related Register, such
Certificateholder's pro rata share (based on the aggregate Fractional Undivided
Interest in the related Pass Through Trust held by such Certificateholder) of
the aggregate amount in the applicable Certificate Account.
(b) Subject to any Intercreditor Agreement, for each Pass Through Trust,
on each related Special Distribution Date, or as soon thereafter as the Pass
Through Trustee has confirmed receipt of any Special Payment due on the related
Equipment Certificates or realized upon the sale of any such Equipment
Certificates, the Pass Through Trustee shall distribute out of the applicable
Special Payments Account the entire amount of such Special Payment deposited
therein pursuant to Section 5.01(b) hereof by paying to each Certificateholder
of the related Series of record at the close of business on the Record Date for
such Special Distribution Date (except as provided in Section 12.01 hereof
concerning the final distribution), at the address for such Certificateholder
appearing in the related Register, such Certificateholder's pro rata share
(based on the aggregate Fractional Undivided Interest in the related Pass
Through Trust held by such Certificateholder) of the aggregate amount in the
applicable Special Payments Account on account of such Special Payment.
(c) For each Pass Through Trust, the Pass Through Trustee shall at the
expense of the Company notify each Certificateholder of the related Series by
mail at its address as it appears in the related Register of each related
Special Payment for such Series. If the related Equipment Certificates are to
be redeemed or purchased in whole prior to their respective maturities, or if a
Special Payment is to be made pursuant to either of the last two paragraphs of
Section 2.02(b) hereof or if the Pass Through Trustee receives sufficient
notice of such Special Payment, such notice shall be mailed not less than 15
days prior to the date any such Special Payment is scheduled to be distributed.
For any other Special Payment, such notice shall be mailed as soon as
practicable after the Pass Through Trustee has received funds for or notice of
such Special Payment. Such notices of Special Payments shall set forth:
32
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 12.01 hereof);
(ii) the amount of the Special Payment for each $1,000 face amount
Pass Through Certificate and the amount thereof constituting
principal, premium, if any, and interest on the related Equipment
Certificates;
(iii) the reason for the Special Payment; and
(iv) if the Special Distribution Date is the same date as a Regular
Distribution Date for such Series, the total amount to be received on
such date for each $1,000 face amount Pass Through Certificate.
If the amount of premium, if any, payable upon the redemption or purchase in
whole of an Equipment Certificate has not been calculated at the time that the
Pass Through Trustee mails the notice of the related Special Payment, it shall
be sufficient if the notice sets forth the other amounts to be distributed and
states that any premium received will also be distributed.
If, for any Pass Through Trust, any cancelable redemption of the related
Equipment Certificates is cancelled, the Pass Through Trustee, as soon as
possible after learning thereof, shall notify by mail each Certificateholder of
the related Series at its address as it appears on the related Register.
(d) At such time, if ever, as the Pass Through Certificates are issued in
certificated form, for each Pass Through Trust, any Scheduled Payment or
Special Payment to be distributed pursuant to this Article V shall be payable
at the Corporate Trust Office of the Pass Through Trustee or at any office or
agency maintained for such purpose for the related Series pursuant to Section
3.02 hereof, provided that any Scheduled Payment or Special Payment may be
payable at the option of the Pass Through Trustee or its Paying Agent for the
related Series by mailing checks for such Scheduled Payment or Special Payment
payable to or upon the written order of the related Certificateholders entitled
thereto as they appear on the related Register.
(e) The Pass Through Trustee shall present any Equipment Certificate to
the applicable Related Indenture Trustee on the date of its stated final
maturity, or on such earlier date as such Equipment Certificate is to be
redeemed or purchased in whole pursuant to the relevant Indenture.
Section 5.03. Statements to Certificateholders. (a) On each Regular
Distribution Date and Special Distribution Date, the Pass Through Trustee shall
33
mail to Certificateholders of the related Series a statement, giving effect to
such distribution to be made on such Regular Distribution Date or Special
Distribution Date, as the case may be, setting forth the following information
(as to (i) and (ii) below, for each $1,000 face amount Pass Through
Certificate):
(i) the amount of such distribution allocable to principal and the
amount allocable to premium, if any, on the related Equipment
Certificates;
(ii) the amount of such distribution allocable to interest on the
related Equipment Certificates; and
(iii) the Pool Balance and the Pool Factor of the related Pass
Through Trust.
(b) For each Series, within a reasonable period of time after the end of
each calendar year but not later than the latest date permitted by law, the
Pass Through Trustee shall furnish to each Person who at any time during such
calendar year was a Certificateholder of such Series a statement containing the
sum of the amounts determined pursuant to clauses (a)(i) and (a)(ii) of this
Section 5.03 for the related Pass Through Trust for such calendar year or, in
the event such Person was a Certificateholder of such Series during a portion
of such calendar year, for the applicable portion of such year.
Section 5.04. Investment of Special Payment Moneys. Any money received by
the Pass Through Trustee pursuant to Section 5.01(b) hereof representing a
Special Payment that is not to be promptly distributed shall, to the extent
practicable, be invested by the Pass Through Trustee in Permitted Investments
selected by the Company by written notice to the Pass Through Trustee pending
distribution of such Special Payment pursuant to Section 5.02 hereof. Any
investment made pursuant to this Section 5.04 shall be in such Permitted
Investments having maturities not later than the date that such moneys are
required to be used to make the payment required under Section 5.02 hereof on
the applicable Special Distribution Date and the Pass Through Trustee shall
hold any such Permitted Investments until maturity. The proceeds upon maturity
of any Permitted Investment shall not be reinvested pending distribution. The
Pass Through Trustee shall have no liability with respect to any investment
made pursuant to this Section 5.04, other than by reason of the willful
misconduct or negligence of the Pass Through Trustee. All income and earnings
from such investments shall be distributed on such Special Distribution Date as
part of such Special Payment.
34
Section 5.05. Withholding Taxes. The Pass Through Trustee shall withhold
any taxes required to be withheld on payments to any Certificateholder of any
Series, except to the extent that such Certificateholder has furnished evidence
reasonably satisfactory to the Pass Through Trustee of any exemption from
withholding claimed by such Certificateholder, and under no circumstances shall
the failure of any such Certificateholder to receive any amounts so withheld
constitute an Event of Default. The Pass Through Trustee agrees to act as such
withholding agent and, in connection therewith, whenever any taxes or similar
charges are required to be withheld with respect to any amounts payable in
respect of the Pass Through Certificates of such Series, to withhold such
amounts and timely pay the same to the appropriate authority in the name of and
on behalf of the Certificateholders of such Series, that it will file any
necessary withholding tax returns or statements when due, and that, as promptly
as possible after the payment thereof, it will deliver to each such
Certificateholder appropriate documentation showing the payment thereof,
together with such additional documentary evidence as any such
Certificateholder of such Series may reasonably request from time to time. The
Pass Through Trustee agrees to file any other information reports as it may be
required to file under law.
Notwithstanding any provision to the contrary herein, if the Company is
required to pay any withholding tax or any interest or penalty thereon, or to
indemnify an Owner Participant or Owner Trustee pursuant to Section 8.01(c) of
any related Participation Agreement with respect to the Pass Through Trustee's
failure to withhold with respect to any Certificateholder, the Pass Through
Trustee shall be entitled to retain any payments otherwise distributable to
such Certificateholder that was subject to such withholding until such amounts
shall have been recovered in full by the Pass Through Trustee.
ARTICLE VI
Concerning the Certificateholders
Section 6.01. Evidence of Action Taken by Certificateholders. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Pass Through Agreement to be given or taken by
Certificateholders of any Series may be embodied in and evidenced by one or
more substantially similar instruments signed by such Certificateholders in
person or by an agent duly appointed in writing, and, except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to the Pass Through Trustee. Proof of
execution of any instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Pass Through Agreement and (subject to
Sections 8.02 and 8.03
35
hereof) conclusive in favor of the Pass Through Trustee, if made in the manner
provided in this Article VI.
(b) For the purpose of determining the Certificateholders of any Series
entitled to vote or consent to any direction, waiver or other action of such
Certificateholders under Section 7.10 or 7.11 hereof, the Company may set a
record date for such vote or consent by specifying such record date in an
Officer's Certificate delivered to the Pass Through Trustee. Notwithstanding
Section 316(c) of the Trust Indenture Act, such record date shall be a date not
more than 15 days prior to the first solicitation of such vote or consent.
Section 6.02. Proof of Execution of Instruments and of Holding of
Certificates. Subject to Sections 8.02 and 8.03 hereof, the execution of any
instrument by a Certificateholder or its, his or her agent or proxy may be
proved in accordance with such reasonable rules and regulations as may be
prescribed by the Pass Through Trustee. The holding of Pass Through
Certificates shall be proved by the Register or by a certificate of the
Registrar.
Section 6.03. Certificateholders to Be Treated as Owners. Prior to due
presentment for registration of transfer of any Pass Through Certificate, each
related Indenture Trustee, the Pass Through Trustee, any agent of any such
related Indenture Trustee or the Pass Through Trustee, the Paying Agent, if
any, the Registrar and the Company may deem and treat the Person in whose name
such Pass Through Certificate shall be registered upon the Register as the
absolute owner of such Pass Through Certificate (whether or not such Pass
Through Certificate shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment on
account of the principal payable with respect to and, subject to the provisions
of this Pass Through Agreement, interest payable with respect to such Pass
Through Certificate and for all other purposes; and neither any such related
Indenture Trustee nor the Pass Through Trustee (nor any agent of any such
related Indenture Trustee or the Pass Through Trustee) nor the Paying Agent, if
any, nor the Registrar nor the Company shall be affected by any notice to the
contrary. All such payments so made to any such Person, or upon such Person's
order, shall be valid, and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for moneys payable upon any such Pass
Through Certificate.
Section 6.04. Pass Through Certificates Owned by the Company and Related
Owner Trustees Deemed Not Outstanding. In determining whether the
Certificateholders of the requisite aggregate Fractional Undivided Interest of
Pass Through Certificates of any Series have concurred in any direction,
consent or waiver under this Pass Through Agreement, Pass Through Certificates
of such
36
Series that are owned by the Company, any Related Owner Trustee or Related
Owner Participant or any obligor on such Pass Through Certificates or by any
Affiliate of the Company, any such Related Owner Trustee or Related Owner
Participant or any obligor on such Pass Through Certificates shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination; provided that for the purpose of determining whether the Pass
Through Trustee shall be protected in relying on any such direction, consent or
waiver, only if a Responsible Officer of the Pass Through Trustee has actual
knowledge that certain Pass Through Certificates are so owned shall such Pass
Through Certificates be so disregarded; and provided further that if all Pass
Through Certificates of such Series that would be deemed Outstanding in the
absence of the foregoing provision are owned by the Company, any Related Owner
Trustee or Related Owner Participant or any obligor on such Pass Through
Certificates or by any Affiliate of the Company, any such Related Owner Trustee
or Related Owner Participant or any obligor on such Pass Through Certificates,
then such Pass Through Certificates shall be deemed Outstanding for the purpose
of any such determination. Pass Through Certificates so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Pass Through Trustee the pledgee's right so to act
with respect to such Pass Through Certificates and that the pledgee is not the
Company, any Related Owner Trustee or Related Owner Participant or any obligor
upon the Pass Through Certificates or any Affiliate of the Company, any Related
Owner Trustee or Related Owner Participant or any obligor on such Pass Through
Certificates. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Pass Through
Trustee in accordance with such advice.
For any Series, upon request of the Pass Through Trustee, the Company, the
Related Owner Trustees and the Related Owner Participants promptly shall
furnish to the Pass Through Trustee an Officer's Certificate listing and
identifying all Pass Through Certificates of such Series, if any, known by the
Company or any such Related Owner Trustee or Related Owner Participant to be
owned or held by or for the account of any of the above-described persons; and
the Pass Through Trustee shall be entitled to accept such Officer's Certificate
as conclusive evidence of the facts set forth therein and of the fact that all
Pass Through Certificates of such Series not listed therein are Outstanding for
the purpose of any such determination. For the purpose of determining whether
Pass Through Certificates of a Series are Outstanding as described in this
Section 6.04, an "obligor" on such Pass Through Certificates shall include any
obligor or any Affiliate of any such obligor on any Equipment Certificates that
constitute Trust Property of the related Pass Through Trust.
37
Section 6.05. Right of Revocation of Action Taken. For any Series, at any
time prior to (but not after) the evidencing to the Pass Through Trustee, as
provided in Section 6.01 hereof, of any action taken by the related
Certificateholders of the percentage in aggregate of Fractional Undivided
Interests in the related Pass Through Trust specified in this Pass Through
Agreement in connection with such action, any Certificateholder of a Pass
Through Certificate of such Series, the serial number of which is shown by the
evidence to be included among the outstanding serial numbers of the Pass
Through Certificates of such Series, the Certificateholders of which have
consented to such action, may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this Article VI, revoke such
action so far as concerns such Pass Through Certificate. Except as aforesaid,
any such action taken shall be conclusive and binding upon such
Certificateholder for such Pass Through Certificate and upon all future
Certificateholders and owners of such Pass Through Certificate and of any Pass
Through Certificates issued in exchange or substitution therefor, irrespective
of whether or not any notation in regard thereto is made upon any such Pass
Through Certificate or otherwise. Any action taken by such Certificateholders
of the percentage in aggregate of Fractional Undivided Interests in the related
Pass Through Trust specified in this Pass Through Agreement in connection with
such action shall be conclusively binding upon the Pass Through Trustee and all
the Certificateholders of such Series.
Section 6.06. ERISA. Unless otherwise specified in the applicable Series
Supplement, no employee benefit plan subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or individual
retirement account or plan subject to Section 4975 of the Code (hereinafter
collectively referred to as an "ERISA Plan"), may acquire or hold any of the
Pass Through Certificates. If the Pass Through Certificates are not described
in the applicable Series Supplement as being eligible for purchase by ERISA
Plans, the purchase by any person of any Pass Through Certificate constitutes a
representation by such person to the Company, the Related Owner Participants,
the Related Owner Trustees, the Related Indenture Trustees and the Pass Through
Trustee that such person is not an ERISA Plan and that such person is not
acquiring, and has not acquired, such Pass Through Certificate with assets of
an ERISA Plan.
38
ARTICLE VII
Remedies of Pass Through Trustee and Certificateholders
Section 7.01. Events of Default. (a) Exercise of Remedies. If, for any
Pass Through Trust, an Indenture Event of Default under an Indenture relating
to any Equipment Certificate that constitutes Trust Property of such Pass
Through Trust (an "Event of Default") shall occur and be continuing, then,
subject to the provisions of any Intercreditor Agreement, the Pass Through
Trustee may vote all of the Equipment Certificates under such Indenture held by
such Pass Through Trust, and upon the direction of the Majority In Interest of
Certificateholders of the related Series, the Pass Through Trustee shall vote a
corresponding majority of such Equipment Certificates in favor of directing the
applicable Related Indenture Trustee to declare the unpaid principal of such
Equipment Certificates then outstanding, together with interest accrued but
unpaid thereon and all other amounts due under such Equipment Certificates and
the related Indenture, to be due and payable under, and in accordance with the
provisions of, such Indenture. In addition, if such Event of Default shall have
occurred and be continuing, subject to the provisions of any Intercreditor
Agreement, the Pass Through Trustee may in accordance with such related
Indenture vote such Equipment Certificates to direct the applicable Related
Indenture Trustee regarding the exercise of remedies provided in such
Indenture.
If, for any Pass Through Trust, an Event of Default shall have occurred
and be continuing, subject to the provisions of any Intercreditor Agreement,
the Pass Through Trustee may, and upon the direction of the Majority In
Interest of Certificateholders of the related Series shall, by such officer or
agent as it may appoint, sell, convey, transfer and deliver any Equipment
Certificates held in such Pass Through Trust that are subject to the
corresponding Indenture Event of Default, without recourse to or warranty by
the Pass Through Trustee or any Certificateholder of such Series, to any
Person. In any such case, the Pass Through Trustee shall sell, assign, contract
to sell or otherwise dispose of and deliver any such Equipment Certificates in
one or more parcels at public or private sale or sales, at any location or
locations at the option of the Pass Through Trustee, all upon such terms and
conditions as it may reasonably deem advisable and at such prices as it may
reasonably deem advisable, for cash.
If the Pass Through Trustee so decides or is required to sell or otherwise
dispose of any Equipment Certificates pursuant to this Section 7.01, the Pass
Through Trustee shall take such of the actions described above as it may
reasonably deem most effective to complete the sale or other disposition of
such Equipment Certificates, so as to provide for the payment in full of all
amounts due on such Equipment Certificates with respect to the related Series.
Notwithstanding the foregoing, any action taken by the Pass Through Trustee
39
under this Section 7.01 shall not, in the reasonable judgment of the Pass
Through Trustee, be adverse to the best interests of the Certificateholders of
such Series.
If an Intercreditor Agreement is applicable and the Pass Through Trustee
is the Controlling Party thereunder, the Pass Through Trustee upon the
occurrence of an Indenture Event of Default may direct the exercise of remedies
in connection therewith.
(b) Purchase Rights of Certificateholders. If an Intercreditor Agreement
is applicable, by acceptance of its Pass Through Certificate, each
Certificateholder agrees that at any time after the occurrence and during the
continuation of a Triggering Event, with ten days' written notice to the Pass
Through Trustee and each other Certificateholder of the same class, each
Certificateholder of Pass Through Certificates of a Series will have certain
rights, the exercise of which will be specified in the applicable Series
Supplement, to purchase all, but not less than all, of the class of Pass
Through Certificates senior to the Pass Through Certificates held by the
purchasing Certificateholder. The purchase price with respect to the Pass
Through Certificates of any series shall be equal to the Pool Balance of the
Pass Through Certificates of such series, together with accrued and unpaid
interest thereon to the date of such purchase, without premium, but including
any other amounts then due and payable to the Certificateholders under this
Pass Through Agreement, any Intercreditor Agreement or any other Indenture
Document or on or in respect of the Pass Through Certificate of such Series;
provided, however, that no such purchase of Pass Through Certificates of such
Series shall be effective unless the purchaser shall certify to the Pass
Through Trustee that contemporaneously with such purchase, such purchaser is
purchasing, pursuant to the terms of this Pass Through Agreement and the other
Agreements, if any, relating to Pass Through Certificates of a series that are
subject to the same Intercreditor Agreement (such other Agreements, the "Other
Agreements"), the Pass Through Certificates of each such series that is senior
to the Pass Through Certificates held by such purchaser.
If prior to the end of the ten-day period, any other Certificateholder
of the same class notifies the purchasing Certificateholder that the other
Certificateholder wants to participate in such purchase, then such other
Certificateholder may join with the purchasing Certificateholder to purchase
the Pass Through Certificates pro rata based on the interest in the Pass
Through Trust held by each Certificateholder.
Each payment of the purchase price of the Pass Through Certificates of any
Series shall be made to an account or accounts designated by the Pass Through
Trustee and each such purchase shall be subject to the terms of this Section.
Each Certificateholder of any Series agrees by its acceptance of Pass
40
Through Certificates of such Series that it will, upon payment from any such
Certificateholders of Pass Through Certificates with a lower seniority of the
purchase price specified herein, forthwith sell, assign, transfer and convey to
the purchaser thereof (without recourse, representation or warranty of any kind
except for its own acts), all of the right, title, interest and obligation of
such Certificateholder in this Pass Through Agreement, any Intercreditor
Agreement, the Liquidity Facility, the Indenture Documents and all Pass Through
Certificates of such Series held by such Certificateholder (excluding all
right, title and interest under any of the foregoing to the extent such right,
title or interest is with respect to an obligation not then due and payable as
respects any action or inaction or state of affairs occurring prior to such
sale) and the purchaser shall assume all of such Certificateholder's
obligations under this Pass Through Agreement, any Intercreditor Agreement, the
Liquidity Facility and the Indenture Documents. The Pass Through Certificates
of such Series will be deemed to be purchased on the date of payment of the
purchase price is made notwithstanding the failure of the Certificateholders to
deliver any Pass Through Certificates of such Series and, upon such a purchase,
(i) the only rights of the Certificateholders will be to deliver the Pass
Through Certificates to the purchaser and receive the purchase price for such
Pass Through Certificates of such series and (ii) if the purchaser shall so
request, such Certificateholder will comply with all of the provisions of
Section 2.08 hereof to enable new Pass Through Certificates of such Series to
be issued to the purchaser in such denominations as it shall request. All
charges and expenses in connection with the issuance of any such new Pass
Through Certificates shall be borne by the purchaser thereof.
Section 7.02. Incidents of Sale of Equipment Certificates. Upon any sale
of all or any part of the Equipment Certificates held in any Pass Through Trust
made either under the power of sale given under this Pass Through Agreement or
the related Series Supplement or otherwise for the enforcement of this Pass
Through Agreement and the related Series Supplement, the following shall be
applicable:
(1) Certificateholders and Pass Through Trustee May Purchase
Equipment Certificates. Any Certificateholder of the related Series,
the Pass Through Trustee in its individual or any other capacity or
any other Person may bid for and purchase any of such Equipment
Certificates, and upon compliance with the terms of sale, may hold,
retain, possess and dispose of such Equipment Certificates in its or
their own absolute right without further accountability.
(2) Receipt of Pass Through Trustee Shall Discharge Purchaser.
The receipt of the Pass Through Trustee or of the officer making such sale
shall be a sufficient discharge to any purchaser for its, his or her
purchase
41
money, and, after paying such purchase money and receiving such
receipt, such purchaser or its, his or her personal representative or
assigns shall not be obliged to see to the application of such
purchase money, or be in any way answerable for any loss,
misapplication or non-application thereof.
(3) Application of Moneys Received upon Sale. Any moneys collected by
the Pass Through Trustee upon any sale made either under the power of
sale given by this Pass Through Agreement or the related Series
Supplement or otherwise for the enforcement of the related Pass Through
Trust, shall be deposited and distributed as a Special Payment as provided
in Article V hereof.
Section 7.03. Pass Through Trustee May Prove Debt. If any amount payable
under any Equipment Certificate held by any Pass Through Trust is not paid when
due and payable, the Pass Through Trustee, in its own name and as trustee of an
express trust, as holder of such Equipment Certificate shall be, to the extent
permitted by and in accordance with the terms of the related Indenture
Documents and any Intercreditor Agreement, entitled and empowered to institute
any action or proceedings at law or in equity for the collection of the sums so
due and unpaid, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against the
applicable Owner Trustee, in the case of an Equipment Trust Certificate, or the
Company, in the case of an Equipment Purchase Certificate, or other obligor
upon such Equipment Certificate and collect in the manner provided by law out
of the property of such Owner Trustee, or the Company or such other obligor
upon such Equipment Certificate, as the case may be, wherever situated, the
moneys adjudged or decreed to be payable.
All rights of action and of asserting claims under this Pass Through
Agreement, or under any of the Pass Through Certificates, may be prosecuted and
enforced by the Pass Through Trustee without the possession of any of such Pass
Through Certificates or the production thereof in any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Pass Through Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Pass Through Trustee, each
predecessor Pass Through Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Certificateholders of the related
Series.
In any proceedings brought by the Pass Through Trustee (and also any
proceedings involving the interpretation of any provision of this Pass Through
Agreement, any Series Supplement or any Intercreditor Agreement to which the
Pass Through Trustee shall be a party) the Pass Through Trustee shall be held
to
42
represent all the Certificateholders of the related Series, and it shall not be
necessary to make any such Certificateholders parties to any such proceedings.
Section 7.04. Remedies Cumulative. Each and every right, power and remedy
given to the Pass Through Trustee or to any of the Certificateholders of any
Series specifically or otherwise under any Pass Through Trust shall be
cumulative and shall be in addition to every other right, power and remedy
specifically given thereunder or now or hereafter existing at law, in equity or
by statute, and each and every right, power and remedy whether specifically
given thereunder or otherwise existing may be exercised from time to time and
as often and in such order as may be deemed expedient by the Pass Through
Trustee or the Certificateholders of the related Series, and the exercise or
the beginning of the exercise of any power or remedy shall not be construed to
be a waiver of the right to exercise at the same time or thereafter any other
right, power or remedy. No delay or omission by the Pass Through Trustee or of
any such Certificateholder in the exercise of any right, remedy or power or in
the pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the applicable Owner
Trustee, if any, or the Company, as the case may be, or to be an acquiescence
therein.
Section 7.05. Suits for Enforcement. If an Indenture Event of Default has
occurred, has not been waived and is continuing, the Pass Through Trustee may
in its discretion and subject to its rights of appropriate indemnification
under Sections 7.07 and 8.03 and Article IX hereof, to the extent permitted by
and in accordance with any Intercreditor Agreement and the Indenture Documents,
proceed to protect and enforce its rights and rights of the Certificateholders
of the related Series by such appropriate judicial proceedings as the Pass
Through Trustee shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise, whether for
the specific enforcement of any covenant or agreement under the related Pass
Through Trust or in aid of the exercise of any power granted thereunder or to
enforce any other legal or equitable right vested in the Pass Through Trustee
or the Certificateholders under such Pass Through Trust or by law; provided
that any sale of any portion of the related Trust Property shall be made in
accordance with Section 7.02 hereof.
Section 7.06. Discontinuance of Proceedings. If the Pass Through Trustee
or any Certificateholder of any Series institutes any proceeding to enforce any
right, power or remedy under the related Pass Through Trust, and such
proceeding is discontinued or abandoned for any reason or is determined
adversely to the Pass Through Trustee or such Certificateholder, then and in
every such case the applicable Owner Trustee, if any, and the applicable
Indenture Trustee, the Pass Through Trustee, the Certificateholders of such
Series and the
43
Company shall, subject to any determination in such proceeding, be restored to
their former positions and rights under such Pass Through Trust with respect to
the Trust Property and all rights, remedies and powers of the Pass Through
Trustee and such Certificateholders shall continue as if no such proceeding had
been instituted.
Section 7.07. Limitations on Suits by Certificateholders. No
Certificateholder of any Series shall have any right by virtue or by availing
of any provision of the related Pass Through Trust to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to such Pass Through Trust, or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for any other
remedy thereunder, unless such Certificateholder previously has notified the
Pass Through Trustee in writing of an Event of Default under such Pass Through
Trust and of the continuance thereof, as provided herein, and the
Certificateholders of the related Pass Through Certificates then Outstanding
(or the proxy therefor) representing in the aggregate not less than 50% of the
Fractional Undivided Interests of Pass Through Certificates then Outstanding
under such Pass Through Trust have requested in writing that the Pass Through
Trustee institute such action or proceedings in its own name as trustee under
such Pass Through Trust and have offered to the Pass Through Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Pass Through Trustee for
60 days after its receipt of such notice, request and offer of indemnity has
failed to institute any such action or proceedings and no direction
inconsistent with such written request has been given to the Pass Through
Trustee pursuant to Section 7.10 hereof; it being understood and intended, and
being expressly covenanted by such Certificateholder with every other
Certificateholder of such Series and the Pass Through Trustee, that no one or
more Certificateholders of such Series shall have any right in any manner
whatever to affect, disturb or prejudice the rights of any other
Certificateholder of such Series or to obtain or seek to obtain priority over
or preference to any other Certificateholder of such Series or to enforce any
right under the related Pass Through Trust, except in the manner provided
therein and for the equal, ratable and common benefit of all Certificateholders
of such Series. For the protection and enforcement of the provisions of this
Section 7.07, each and every Certificateholder of the related Series and the
Pass Through Trustee shall be entitled to such relief as can be given either at
law or in equity.
Section 7.08. Unconditional Right of Certificateholders to Receive
Principal, Interest and Premium, and to Institute Certain Suits.
Notwithstanding any other provision in this Pass Through Agreement, any Series
Supplement or any Pass Through Certificate issued pursuant to such Series
Supplement, but subject to any Intercreditor Agreement, the right of any
Certificateholder of the
44
related Series to receive distributions on such Pass Through Certificate of
Scheduled Payments or Special Payments pursuant to Article V hereof on or after
the respective due dates set forth in such Series Supplement, or, subject to
Section 7.07 hereof, to institute suit for the enforcement of any such
distribution on or after such respective dates as provided herein or therein,
shall not be impaired or affected without the consent of such
Certificateholder. The purchase by any Certificateholder of any Pass Through
Certificate constitutes the consent of such Certificateholder to the retention
by the Pass Through Trustee of certain amounts otherwise distributable to such
Certificateholder in accordance with Section 5.05 hereof.
Section 7.09. Control by Certificateholders. Subject to any Intercreditor
Agreement, a Majority In Interest of Certificateholders of any Series has the
right with respect to the related Pass Through Trust to direct the Pass Through
Trustee as to the time, method, and place of conducting any proceeding for any
remedy available to the Pass Through Trustee with respect to such Pass Through
Trust or pursuant to the terms of any Intercreditor Agreement, or exercising
any trust or power conferred on the Pass Through Trustee under this Pass
Through Agreement or any Intercreditor Agreement, including any right of the
Pass Through Trustee as Controlling Party under any Intercreditor Agreement or
as holder of the Equipment Certificates; provided that such direction is not
otherwise than in accordance with law and the provisions of such Pass Through
Trust and the Pass Through Trustee has received, to the extent provided in
Sections 7.07 and 8.03 and Article IX hereof, such reasonable indemnification
as it may require against the costs, expenses and liabilities to be incurred by
the Pass Through Trustee; and provided further that the Pass Through Trustee
has the right to decline to follow any such direction if the Pass Through
Trustee, being advised by counsel, determines that the action or proceeding so
directed may not lawfully be taken or if the Pass Through Trustee in good faith
by its board of directors, the executive committee, or a trust committee of
directors or Responsible Officers of the Pass Through Trustee determines that
the action or proceedings so directed would involve the Pass Through Trustee in
personal liability or if the Pass Through Trustee in good faith so determines
that the actions or forebearances specified in or pursuant to such direction
would be unduly prejudicial to the interests of the Certificateholders of such
Series not joining in the giving of said direction, it being understood that
the Pass Through Trustee shall have no duty to ascertain whether or not such
actions or forebearances are unduly prejudicial to such Certificateholders.
Nothing in this Pass Through Agreement or any Series Supplement shall
impair the right of the Pass Through Trustee in its discretion to take any
action deemed proper by the Pass Through Trustee with respect to the related
Pass
45
Through Trust and which is not inconsistent with such direction by
Certificateholders of the related Series.
Section 7.10. Waiver of Past Events of Default. Subject to any
Intercreditor Agreement, the Majority in Interest of Certificateholders of any
Series (i) may on behalf of all of the Certificateholders waive any past Event
of Default under the related Pass Through Trust or the related Series
Supplement and its consequences or (ii) if the Pass Through Trustee is the
Controlling Party, may direct the Pass Through Trustee to instruct the
applicable Indenture Trustee to waive, any past Indenture Default under any
Indenture and its consequences, and thereby annul any direction given by such
Certificateholders or the Pass Through Trustee to such Indenture Trustee with
respect thereto. Upon such waiver such Event of Default will cease to exist and
any Event of Default arising therefrom will be deemed to have been cured for
every purpose of such Pass Through Trust, but no such waiver will extend to any
subsequent or other Event of Default thereunder or impair any right consequent
thereon; provided that any such waiver will be effective to waive any such past
Event of Default and its consequences as described above if, but only if, the
correlative Indenture Event of Default has been waived under the related
Indenture by the requisite holders of the Equipment Certificates outstanding
thereunder; and provided further that in the absence of written instructions
from all Certificateholders of any Series (or the proxy therefor), the Pass
Through Trustee shall not waive any Event of Default (i) consisting of the
failure to pay any principal of, or premium (if any), or interest on, or other
amounts due under, any Equipment Certificate held by the related Pass Through
Trust and the consequent failure to distribute any related Scheduled Payment or
Special Payment pursuant to Article V hereof on or after the respective due
date therefor set forth in the related Series Supplement or (ii) in respect of
a covenant or provision under any Pass Through Trust that, under Article XI
hereof or the related Series Supplement, cannot be modified or amended without
the consent of each Certificateholder of the related Series (or the proxy
therefor).
Section 7.11. Notice of Pass Through Defaults. The Pass Through Trustee
shall, in the manner and to the extent required by Section 313(c) of the Trust
Indenture Act, notify the Certificateholders of any Series of all Pass Through
Defaults under the related Pass Through Trust known to a Responsible Officer of
the Pass Through Trustee, unless such Pass Through Defaults have been cured
before the giving of such notice; provided that under no circumstances shall
the Pass Through Trustee give such notice until the earlier of the time at
which such Pass Through Default becomes an Event of Default or the expiration
of a period of 60 days from the occurrence of such Pass Through Default; and
provided further that, except in the case of the failure to pay any principal
of or interest on or any other amount due under any of the Equipment
Certificates held
46
by any Pass Through Trust and the consequent failure to distribute any related
Scheduled Payment or Special Payment pursuant to Article V hereof on or after
the respective due date therefor set forth in the related Series Supplement,
the Pass Through Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee, or a trust
committee of directors or trustees or Responsible Officers of the Pass Through
Trustee in good faith determines that the withholding of such notice is in the
interests of the Certificateholders of the related Series.
ARTICLE VIII
Concerning the Pass Through Trustee
Section 8.01. Acceptance by Pass Through Trustee. The Pass Through
Trustee, upon the execution and delivery of a Series Supplement creating a Pass
Through Trust and providing for the issuance of a Series of Pass Through
Certificates, shall acknowledge its acceptance of all right, title and interest
in and to the Equipment Certificates to be acquired as Trust Property of such
Pass Through Trust pursuant to the applicable Participation Agreements and
Section 2.02 hereof, and shall declare that the Pass Through Trustee holds and
will hold such right, title, and interest, together with all other property
constituting the Trust Property of such Pass Through Trust, for the benefit of
all then present and future Certificateholders of such Series, upon the trusts
set forth in such Pass Through Trust.
Section 8.02. Pass Through Trustee's Liens. The Pass Through Trustee
agrees that it will, in its individual capacity and at its own cost and expense
(without any right of indemnity in respect of any such cost or expense under
Article IX hereof) promptly take such action as may be necessary to duly
discharge all Liens on any part of the Trust Property of any Pass Through Trust
that result from claims (i) against it in its individual capacity not related
to the administration of such Trust Property or any other transaction pursuant
to this Pass Through Agreement, the related Series Supplement, the
Participation Agreement or any Intercreditor Agreement, or (ii) against it as
Pass Through Trustee hereunder or in its individual capacity which arise out of
the negligence or willful misconduct of the Pass Through Trustee as such
negligence or willful misconduct shall be determined by a final decision of a
court of competent jurisdiction.
Section 8.03. Certain Rights of the Pass Through Trustee. Subject to the
Trust Indenture Act:
47
(a) the Pass Through Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, security or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request of any Related Indenture Trustee or Related Owner Trustee
in connection with any Pass Through Trust shall be sufficiently evidenced by an
Officer's Certificate (unless other evidence in respect thereof is specifically
prescribed herein) upon which the Pass Through Trustee may rely to prove or
establish a matter set forth therein;
(c) the Pass Through Trustee in the administration of this Pass Through
Agreement or any Intercreditor Agreement may consult with counsel and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken by
it hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Pass Through Trustee shall not be obligated to exercise any of the
trusts or powers vested in it under any Pass Through Trust or any Intercreditor
Agreement at the request, order or direction of the Certificateholders of the
related Series in accordance with the provisions thereof, unless such
Certificateholders have offered to the Pass Through Trustee reasonable security
or indemnity against the costs, expenses and liabilities which might be
incurred therein or thereby;
(e) the Pass Through Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it under any Pass Through Trust,
under this Pass Through Agreement or under any Intercreditor Agreement;
(f) prior to the occurrence of an Event of Default under any Pass Through
Trust and after the curing or waiving of all Events of Default thereunder, the
Pass Through Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, security, or other paper or document unless requested in
writing to do so by the Majority in Interest of Certificateholders of the
related Series; provided that if the payment within a reasonable time to the
Pass Through Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of the
Pass Through Trustee, not reasonably assured to the Pass Through Trustee by the
security afforded to it by the terms of such Pass Through Trust, the Pass
Through Trustee may require reasonable
48
indemnity from the Certificateholders against such expenses or liabilities as a
condition to proceeding; subject to (h) below, the reasonable expenses of every
such examination shall be paid by the Pass Through Trustee or any predecessor
trustee, and shall be repaid by the Company upon demand or indemnification by
the Certificateholders;
(g) the Pass Through Trustee may execute any of the trusts or powers under
any Pass Through Trust or any Intercreditor Agreement or perform any duties
hereunder or thereunder either directly or by or through agents or attorneys
not regularly in its employ and the Pass Through Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent or
attorney appointed by it with due care under this Pass Through Agreement or any
Intercreditor Agreement; and
(h) the Pass Through Trustee shall not be required to expend or risk its
own funds or otherwise incur personal financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers under any
Pass Through Trust, if the Pass Through Trustee has determined in good faith
that the repayment of such funds or adequate indemnity against such liability
is not reasonably assured to it.
Section 8.04. Pass Through Trustee Not Responsible for Recitals. The
Pass Through Trustee assumes no responsibility for the correctness of the
recitals contained herein or in any Pass Through Certificates, except for the
execution and authentication of such Pass Through Certificates by the Pass
Through Trustee in accordance with Sections 2.05 and 2.06 hereof, respectively.
Section 8.05. Pass Through Trustee and Agents May Hold Pass Through
Certificates; Collections. The Pass Through Trustee and any agent of the Pass
Through Trustee, in its individual or any other capacity, may become the owner
or pledgee of Pass Through Certificates with the same rights it would have if
it were not the Pass Through Trustee or such agent and, subject to the
applicable provisions of the Trust Indenture Act, may otherwise deal with the
Company, any Related Indenture Trustee or Related Owner Trustee and receive,
collect, hold and retain collections therefrom with the same rights it would
have if it were not the Pass Through Trustee or such agent.
Section 8.06. Moneys Held by Pass Through Trustee. Subject to Sections
5.04 and 12.04 hereof, all moneys received by the Pass Through Trustee shall,
until used or applied as provided herein, be held in trust for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by mandatory provisions of law. Subject to Section 5.04
49
hereof, neither the Pass Through Trustee nor any agent thereof shall be under
any liability for interest on any moneys received by it hereunder.
Section 8.07. Right of Pass Through Trustee to Rely on Officer's
Certificate. Subject to Section 8.03 hereof, whenever in the administration of
any Pass Through Trust the Pass Through Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering
or omitting any action thereunder, such matter (unless other evidence in
respect thereof is specifically prescribed herein) may, in the absence of bad
faith on the part of the Pass Through Trustee, be deemed to be conclusively
proved and established by an Officer's Certificate delivered to the Pass
Through Trustee by the Company, any Related Indenture Trustee or any Related
Owner Trustee, as the case may be, and such certificate, in the absence of bad
faith on the part of the Pass Through Trustee, shall be full warrant to the
Pass Through Trustee for any action taken, suffered or omitted by it under the
provisions of this Pass Through Agreement upon the faith thereof.
Section 8.08. Compensation. The Company agrees to pay, and the Pass
Through Trustee shall be entitled to receive, reasonable compensation and
payment or reimbursement for its reasonable advances, expenses and
disbursements (including the reasonable compensation and expenses and
disbursements of its counsel, agents and other persons not regularly in its
employ) incurred in connection with its services rendered hereunder or in any
way relating to or arising out of the administration of any Pass Through Trust
or the related Trust Property, except any such advance, expense or disbursement
attributable to the Pass Through Trustee's negligence, willful misconduct or
bad faith or incurred as a result of the breach of its representation, warranty
or covenant set forth in Sections 3.03(iv) and 8.02 hereof, and shall have a
priority claim on such Trust Property for the payment of such compensation,
advances, expenses and disbursements to the extent that such compensation,
advances, expenses and disbursements shall not be paid by the Company.
In addition, the Pass Through Trustee shall be entitled to reimbursement
from, and shall have a priority claim on, all property and funds held or
collected by the Pass Through Trustee with respect to any Series or the related
Pass Through Trust in its capacity as Pass Through Trustee for any tax incurred
without negligence, bad faith or willful misconduct on its part, arising out of
or in connection with the acceptance or administration of such Pass Through
Trust (excluding any taxes payable by the Pass Through Trustee on or measured
by any compensation received by the Pass Through Trustee for its services under
this Pass Through Agreement), including any costs and expenses incurred in
contesting the imposition of any such tax. If the Pass Through Trustee
reimburses itself from the Trust Property of such Pass Through Trust for any
such tax it shall
50
within 20 days mail a brief report setting forth the circumstances thereof to
all Certificateholders of the related Series as their names and addresses
appear in the related Register.
ARTICLE IX
Indemnification of Pass Through Trustee by the Company
The Company hereby agrees to assume liability for, and does hereby
indemnify, save and keep harmless the Pass Through Trustee, in its individual
capacity, and its successors, assigns, agents and servants, with respect to the
claims of the Pass Through Trustee for payment or reimbursement under Section
8.08 hereof and from and against any and all liabilities, losses, damages,
penalties, taxes (excluding any taxes payable by the Pass Through Trustee on or
measured by any compensation received by the Pass Through Trustee for its
services under this Pass Through Agreement), claims, actions, suits, costs,
expenses or disbursements (including legal fees and expenses) of any kind and
nature whatsoever which may be imposed on, or incurred by, the Pass Through
Trustee in its individual capacity in any way relating to or arising out of
this Pass Through Agreement, or any Series Supplement or the enforcement of any
of the terms of any thereof, or in any way relating to or arising out of the
administration of any Pass Through Trust or the related Trust Property or the
action or inaction of the Pass Through Trustee hereunder, except only (i) in
the case of negligence, willful misconduct or bad faith of the Pass Through
Trustee in the performance of its duties hereunder or under any Series
Supplement, (ii) as may result from the inaccuracy of any representation or
warranty of the Pass Through Trustee herein or in any Participation Agreement
or (iii) as otherwise provided in Section 8.02 hereof.
The Pass Through Trustee in its individual capacity shall be entitled to
indemnification, from the related Trust Property, for any liability, loss,
damage, penalty, claim, action, suit, cost, expense or disbursement indemnified
against pursuant to this Article IX to the extent not reimbursed by the Company
or others, but without releasing any of them from their respective agreements
of reimbursement; and to secure the same the Pass Through Trustee shall have a
prior Lien on such Trust Property. The indemnities contained in this Article IX
shall survive the termination of this Pass Through Agreement or any Pass
Through Trust and the resignation or removal of the Pass Through Trustee
hereunder or thereunder.
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ARTICLE X
Successor Trustees
Section 10.01. Resignation and Removal of Pass Through Trustee;
Appointment of Successor. (a) The Pass Through Trustee may resign at any time
as trustee of any Pass Through Trust without cause by giving at least 45 days
prior written notice to the Company, the Related Indenture Trustees and the
Related Owner Trustees, if any, such resignation to be effective upon the
acceptance of the trusteeship by a successor Pass Through Trustee. In addition,
a Majority in Interest of Certificateholders of any Series or the Company may
at any time remove the related Pass Through Trustee without cause by an
instrument in writing delivered to the Company (in the case of removal by a
Majority in Interest of Certificateholders of any Series), the Related Owner
Trustees, if any, the Related Indenture Trustees and the Pass Through Trustee,
and the Pass Through Trustee shall promptly notify each Certificateholder of
such Series of such removal in writing, such removal to be effective upon the
acceptance of the trusteeship by a successor Pass Through Trustee.
In the case of the resignation or removal of the Pass Through Trustee, the
Company or a Majority in Interest of Certificateholders of the related Series
may appoint a successor Pass Through Trustee by an instrument signed by the
Company or such Certificateholders, as the case may be.
If a successor Pass Through Trustee shall not have been appointed within
90 days after such notice of resignation or removal, the Pass Through Trustee,
the Company or any Certificateholder of the related Series may apply to any
court of competent jurisdiction to appoint a successor Pass Through Trustee to
act until such time, if any, as a successor shall have been appointed as
provided above. The successor Pass Through Trustee so appointed by such court
shall immediately and without further act be superseded by any successor Pass
Through Trustee appointed by the Company or a Majority in Interest of
Certificateholders as provided above within one year from the date of the
appointment by such court.
(b) If at any time any of the following occurs with respect to any Pass
Through Trust:
(i) the Pass Through Trustee fails to comply with the requirements of
Section 310(G) of the Trust Indenture Act after written request for
such compliance by any Certificateholder of the related Series who has
been a bona fide Certificateholder of such Series for at least six
months;
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(ii) the Pass Through Trustee ceases to be eligible in accordance with
the provisions of Section 10.02 hereof to act as trustee for such Pass
Through Trust and fails to resign after written request for such
resignation by the Company or by any such bona fide Certificateholder;
or
(iii) the Pass Through Trustee becomes incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Pass Through Trustee or of its property shall be appointed, or any
public officer takes charge or control of the Pass Through Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then the Company may remove the Pass Through Trustee and appoint a successor
trustee by written instrument, one copy of which instrument shall be delivered
to the Pass Through Trustee so removed and one copy to the successor trustee,
or, subject to the provisions of Section 315(e) of the Trust Indenture Act, any
Certificateholder of the related Series who has been a bona fide
Certificateholder of such Series for at least six months may, on behalf of
itself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Pass Through Trustee and the appointment of
a successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Pass Through Trustee and appoint a
successor trustee, which removal and appointment shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 10.03
hereof. The successor Pass Through Trustee so appointed by such court shall
immediately and without further act be superseded by any successor Pass Through
Trustee appointed by the Company or the Certificateholders of the related
Series as provided in subsection (a) above within one year from the date of
appointment by such court.
(c) If a Responsible Officer of the Pass Through Trustee shall obtain
actual knowledge of an Avoidable Tax (as hereinafter defined) in respect of any
Pass Through Trust which has been or is likely to be asserted, the Pass Through
Trustee shall promptly notify the Company and shall, within 30 days of such
notification, resign as Pass Through Trustee of such Pass Through Trust
hereunder unless within such 30-day period the Pass Through Trustee shall have
received notice that the Company has agreed to pay such tax. The Company shall
promptly appoint a successor Pass Through Trustee of such Pass Through Trust in
a jurisdiction where there are no Avoidable Taxes. As used herein, an
"Avoidable Tax" in respect of such Pass Through Trust means a state or local
tax: (i) upon (w) such Pass Through Trust, (x) such Trust Property, (y)
Certificateholders of such Pass Through Trust or (z) the Pass Through Trustee
for which the Pass Through Trustee is entitled to seek reimbursement from the
Trust Property of such Pass Through Trust, and (ii) which would be avoided if
the Pass
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Through Trustee were located in another state, or jurisdiction within a state,
within the United States. A tax shall not be an Avoidable Tax in respect of any
Pass Through Trust if the Company or any Owner Trustee shall agree to pay, and
shall pay, such tax.
Section 10.02. Persons Eligible for Appointment as Pass Through Trustee.
Each Pass Through Trust shall at all times have a Pass Through Trustee which
shall be a Person eligible to act as trustee under Section 310(a) of the Trust
Indenture Act and shall be a corporation organized and doing business under the
laws of the United States of America or of any State or the District of
Columbia having a combined capital and surplus of at least $100,000,000, or a
direct or indirect subsidiary of such a corporation, or a member of a bank
holding company group, having a combined capital and surplus of at least
$100,000,000 and such subsidiary or member itself having a capital and surplus
of at least $10,000,000, which corporate trustee shall be a citizen of the
United States of America as defined under Title 49 of the United States Code,
as amended, and which is authorized under such laws to exercise corporate trust
powers and is subject to supervision of examination by federal, State or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 10.02, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.
If at any time the Pass Through Trustee ceases to be eligible in
accordance with the provisions of this Section 10.02 to act as trustee for any
Pass Through Trust, the Pass Through Trustee shall resign immediately as Pass
Through Trustee for such Pass Through Trust in the manner and with the effect
specified in Section 10.01 hereof.
Section 10.03. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 10.01 hereof for any Pass
Through Trust shall execute and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment with respect to such Pass
Through Trust, and thereupon the resignation or removal of the predecessor
trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all rights, powers, duties
and obligations of its predecessor with respect to such Pass Through Trust, as
if such successor trustee was originally named as trustee of such Pass Through
Trust.
Notwithstanding the foregoing, on the written request of the Company or
the successor trustee, the trustee ceasing to act shall, upon payment of its
charges then unpaid and subject to Section 12.04 hereof, pay over to the
successor trustee
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all moneys at the time held by it with respect to such Pass Through Trust and
shall execute and deliver an instrument transferring to such successor trustee
all such rights, powers, duties and obligations. Upon request of any such
successor trustee, the Company shall execute any and all instruments in writing
for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee with respect to such Pass Through Trust to secure any amounts
then due it pursuant to the provisions of Article IX hereof.
If a successor trustee is appointed with respect to one or more (but not
all) of the Pass Through Trusts created pursuant to this Pass Through
Agreement, the predecessor trustee and each successor trustee with respect to
such Pass Through Trusts shall execute and deliver a supplemental agreement
hereto which shall be sufficient with respect to each such Pass Through Trust
to effect the removal of any predecessor trustee retiring and to vest the
successor trustee with all rights, powers, duties and obligations of its
predecessor under each such Pass Through Trust as to which the predecessor Pass
Through Trustee is retiring, as if such successor trustee was originally named
as Pass Through Trustee hereunder or under the applicable Series Supplement,
and shall add to or change any of the provisions of this Pass Through Agreement
and the applicable Series Supplement as shall be necessary to provide for or
facilitate the administration of such Pass Through Trust hereunder by more than
one Pass Through Trustee.
An institution satisfying the criteria specified in Section 10.02 hereof
may be appointed, including pursuant to the relevant Series Supplement, as the
Pass Through Trustee in respect of any Series issued or proposed to be issued
if such institution shall execute and deliver to the Company with respect to
the relevant Pass Through Trust an instrument (which may be the relevant Series
Supplement) accepting such appointment and shall thereupon become vested with
all the rights, powers, trusts and duties of the Pass Through Trustee in
respect of such Pass Through Trust.
It is understood that except as provided in Section 10.05 hereof nothing
herein or in any supplemental agreement or Series Supplement shall constitute
any Pass Through Trustee a co-trustee of any Pass Through Trustee and that each
Pass Through Trustee may be the Pass Through Trustee of one or more separate
Pass Through Trusts.
No institution shall accept appointment as a Pass Through Trustee as
provided in this Section 10.03 unless at the time of such acceptance such
institution shall be eligible under the provisions of Article X hereof to act
as trustee of the relevant Pass Through Trust.
55
Upon acceptance of appointment by a successor trustee as provided in this
Section 10.03, the successor trustee shall notify the Certificateholders of the
related Series of such appointment by first-class mail at their last addresses
as they shall appear in the Register, and shall mail a copy of such notice to
the Company, the Related Indenture Trustees and the Related Owner Trustees, if
any. If the acceptance of appointment is substantially contemporaneous with the
resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 10.01 hereof.
Section 10.04. Merger, Conversion, Consolidation or Succession to Business
of Pass Through Trustee. Any corporation into which the Pass Through 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
Pass Through Trustee is a party, or any corporation succeeding to the corporate
trust business of the Pass Through Trustee, shall be the successor to the Pass
Through Trustee hereunder, provided that, anything herein to the contrary
notwithstanding, such corporation shall be eligible under the provisions of
Section 10.02 hereof to act as trustee hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto.
If, with respect to any Pass Through Trusts at the time of such succession
to the Pass Through Trustee, any of the Pass Through Certificates of the
related Series have been authenticated but not delivered, such successor may
adopt the certificate of authentication of any such predecessor Pass Through
Trustee and deliver such Pass Through Certificates so authenticated; and, if at
that time any of such Pass Through Certificates have not been authenticated,
such successor may authenticate such Pass Through Certificates either in the
name of any of its predecessor or in its own name as the successor Pass Through
Trustee; and in all such cases such certificate of authentication shall have
the full force of the certificate of authentication of the Pass Through Trustee
set forth in Section 2.01 hereof; provided that the right to adopt the
certificate of authentication of any predecessor Pass Through Trustee or to
authenticate Pass Through Certificates in the name of any predecessor Pass
Through Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 10.05. Appointment of Separate Pass Through Trustees. (a) At any
time or times, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust Property of any Pass Through Trust
may at the time be located or in which any action of the Pass Through Trustee
may be required to be performed or taken, the Pass Through Trustee, by an
instrument in writing signed by it, may appoint one or more individuals or
corporations to act as separate trustee or separate trustees or co-trustee,
acting jointly with the Pass Through Trustee, of all or any part of such Trust
Property, to
56
the full extent that local law makes it necessary for such separate trustee or
separate trustees or co-trustee, acting jointly with the Pass Through Trustee,
to act.
(b) The Pass Through Trustee and, at the request of the Pass Through
Trustee, the Company, shall execute, acknowledge and deliver all such
instruments as may be required by the legal requirements of any jurisdiction or
by any such separate trustee or separate trustees or co-trustee for the purpose
of more fully confirming such title, rights or duties to such separate trustee
or separate trustees or co-trustee. Upon the acceptance in writing of such
appointment by any such separate trustee or separate trustees or co-trustee,
it, he, she or they shall be vested with such title to such Trust Property or
any part thereof, and with such rights, powers, duties and obligations, as
shall be specified in the instrument of appointment, and such rights, powers,
duties and obligations shall be conferred or imposed upon and exercised or
performed by the Pass Through Trustee, or the Pass Through Trustee and such
separate trustee or separate trustees or co-trustee jointly with the Pass
Through Trustee subject to all the terms of this Pass Through Agreement, except
to the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed the Pass Through 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 separate
trustee or separate trustees or co-trustee, as the case may be.
Any separate trustee or separate trustees or co-trustee may, at any time
by an instrument in writing, constitute the Pass Through Trustee its, her or
his attorney-in-fact and agent with full power and authority to do all acts and
things and to exercise all discretion on its, her or his behalf and in its, her
or his name. In case any such separate trustee or co-trustee shall die, become
incapable of acting, resign or be removed, the title to any Trust Property and
all assets, property, rights, powers, duties and obligations and duties of such
separate trustee or co-trustee shall, so far as permitted by law, vest in and
be exercised by the Pass Through Trustee, without the appointment of a
successor to such separate trustee or co-trustee unless and until a successor
is appointed.
(c) All provisions of this Pass Through Agreement which are for the
benefit of the Pass Through Trustee (including without limitation Article IX
hereof) shall extend to and apply to each separate trustee or co-trustee
appointed pursuant to the foregoing provisions of this Section 10.06.
(d) For any Pass Through Trust, every additional trustee and separate
trustee hereunder shall, to the extent permitted by law, be appointed and act
and the Pass Through Trustee shall act, subject to the following provisions and
conditions:
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(i) all powers, duties, obligations and rights conferred upon the
Pass Through Trustee in respect of the receipt, custody, investment
and payment of moneys shall be exercised solely by the Pass Through
Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Pass Through Trustee shall be conferred or imposed
and exercised or performed by the Pass Through Trustee and such
additional trustee or trustees and separate trustee or trustees
jointly except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the Pass Through
Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Property in any such
jurisdiction) shall be exercised and performed by such additional
trustee or trustees or separate trustee or trustees;
(iii) no power hereby given to, or exercisable by, any such additional
trustee or separate trustee shall be exercised hereunder by such
additional trustee or separate trustee except jointly with, or with
the consent of, the Pass Through Trustee; and
(iv) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder.
If at any time the Pass Through Trustee shall deem it no longer
necessary or prudent in order to conform to any such law, the Pass Through
Trustee shall execute and deliver all instruments and agreements necessary or
proper to remove any additional trustee or separate trustee.
(e) Any request, approval or consent in writing by the Pass Through
Trustee to any additional trustee or separate trustee shall be sufficient
warrant to such additional trustee or separate trustee, as the case may be, to
take such action as may be so requested, approved or consented to.
(f) Notwithstanding any other provision of this Section 10.06, the powers
of any additional trustee or separate trustee shall not exceed those of the
Pass Through Trustee hereunder.
Section 10.06. Preferential Claims. Reference is made to Section 311 of
the Trust Indenture Act. For purposes of Section 311(b)(4) and (6) of such Act:
(a) "cash transaction" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or
58
securities in currency or in checks or other orders drawn upon banks or bankers
and payable upon demand; and
(b) "self-liquidating paper" means any draft, xxxx of exchange, acceptance
or obligation which is made, drawn, negotiated or incurred by the Company for
the purpose of financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, xxxx of exchange, acceptance or
obligation.
ARTICLE XI
Supplements and Amendments to This Pass Through Agreement and
Other Documents
Section 11.01. Supplemental Agreements Without Consent of
Certificateholders. The Company and the Pass Through Trustee may enter into an
agreement or agreements supplemental hereto or to any applicable Intercreditor
Agreement or Liquidity Facility for one or more of the following purposes:
(a) to provide for the formation of any Pass Through Trust, the issuance
of the related Series and the other matters contemplated by Section 2.01(b)
hereof;
(b) to evidence the succession of another corporation to the Company, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Company herein and in each Series
Supplement;
(c) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions as the Pass Through Trustee shall
consider to be for the protection of the Certificateholders of any Series;
(d) to surrender any right or power conferred upon the Company herein or
in any Series Supplement;
(e) to cure any ambiguity or to correct any mistake or supplement any
provision contained herein or in any Series Supplement, any Intercreditor
Agreement or any Liquidity Facility that may be defective or inconsistent with
any
59
other provision contained herein or in such Series Supplement, Intercreditor
Agreement or Liquidity Facility;
(f) to modify any other provisions in regard to matters or questions
arising under this Pass Through Agreement or under any Series Supplement, any
Intercreditor Agreement and any Liquidity Facility as the Company may deem
necessary or desirable and that will not adversely affect the interests of the
related Certificateholders;
(g) to correct or amplify the description of any property at any time that
constitutes Trust Property or better to assure, convey and confirm unto the
Pass Through Trustee any such property to be included in any such Trust
Property;
(h) to evidence and provide for the acceptance and appointment under this
Pass Through Agreement by the Pass Through Trustee or a successor trustee with
respect to one or more Pass Through Trusts and to add to or change any of the
provisions hereof as may be necessary to provide for or facilitate the
administration of one or more Pass Through Trusts by more than one trustee,
pursuant to the requirements of Section 10.03 hereof;
(i) to modify, eliminate or add to the provisions of this Pass Through
Agreement or any Series Supplement to the extent necessary to continue the
qualification of this Pass Through Agreement or such Series Supplement
(including any supplemental agreement) under the Trust Indenture Act, or under
any similar federal statute enacted after the date hereof, and to add to this
Pass Through Agreement or any Series Supplement such other provisions as may be
expressly permitted by the Trust Indenture Act, excluding, however, the
provisions referred to in Section 316(a)(2) of the Trust Indenture Act as in
effect on the date hereof or any corresponding provision in any similar federal
statute enacted after the date hereof;
(j) to make any other amendments or modifications to this Pass Through
Agreement, provided such amendments or modifications shall only apply to one or
more Series to be issued after the date of such amendment or modification; or
(k) to add, eliminate or change any provision hereunder so long as such
action shall not adversely affect the interests of the Certificateholders of
any Series;
provided that no such supplemental agreement shall cause any Pass Through
Trust to become taxable as an association for U.S. federal income tax purposes.
60
The Pass Through Trustee is hereby authorized to join in the execution of
any such supplemental agreement, to make any further appropriate agreements and
stipulations that may be contained therein and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Pass Through Trustee shall not be obligated to enter into any such supplemental
agreement that adversely affects the Pass Through Trustee's own rights, duties
or immunities under this Pass Through Agreement, any Series Supplement or
otherwise, whether in its official or individual capacity.
Any supplemental agreement contemplated by this Section 11.01 may be
executed without the consent of the Certificateholders of the Outstanding Pass
Through Certificates of any Series, notwithstanding any of the provisions of
Section 11.02 hereof.
Section 11.02. Supplemental Agreements with Consent of Certificateholders.
With the consent (evidenced as provided in Article VI) of the Majority in
Interest of Certificateholders of any Series, the Company and the Pass Through
Trustee may, from time to time and at any time, enter into an agreement or
agreements supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Pass
Through Agreement or of the related Series Supplement, any Intercreditor
Agreement or any Liquidity Facility or of modifying in any manner the rights of
the related Certificateholders; provided, that no such supplemental agreement
shall cause any Pass Through Trust to become taxable as an association for U.S.
federal income tax purposes; and provided further that, without the consent of
each Certificateholder of such Series (or the proxy therefor), no such
amendment of or supplement to this Pass Through Agreement or such related
Series Supplement, or modification of the terms of, or consent under, any
thereof, shall:
(a) modify any of the provisions of Section 7.10 hereof or this Section
11.02,
(b) reduce the amount or extend the time of payment of any amount owing or
payable on the related Equipment Certificates or distributions to be made on
any related Pass Through Certificate pursuant to Article V, or alter the
currency in which any amount payable under any such Pass Through Certificate is
to be paid, or impair the right of any related Pass Through Certificateholder
to commence legal proceedings to enforce a right to receive payment hereunder,
(c) reduce, modify or amend any indemnities in favor of any
Certificateholder (except as consented to by each such Certificateholder
adversely affected thereby (or the proxy therefor)), or
61
(d) create or permit the creation of any Lien on the related Trust
Property or any part thereof, or deprive any related Certificateholder of the
benefit of the related Pass Through Trust with respect to the related Trust
Property, whether by disposition of such Trust Property or otherwise, except as
provided in Section 7.02 hereof or in connection with the exercise of remedies
under Article VII hereof.
(e) waive, amend or modify the priority of distributions of any
Intercreditor Agreement in a manner adverse to the Certificateholder.
Upon the request of the Company and upon the filing with the Pass Through
Trustee of evidence of the consent of the applicable Certificateholders
required under this Section 11.02 and other documents, if any, required by
Section 6.01 hereof, the Pass Through Trustee shall join with the Company in
the execution of such supplemental agreement unless such supplemental agreement
affects the Pass Through Trustee's own rights, duties or immunities under this
Pass Through Agreement or the related Series Supplement or otherwise, in which
case the Pass Through Trustee may in its discretion, but shall not be obligated
to, enter into such supplemental agreement.
It shall not be necessary for the consent of the Certificateholders of any
Series under this Section 11.02 to approve the particular form of any proposed
supplemental agreement, but it shall be sufficient if such consent shall
approve the substance thereof.
Promptly after the execution by the Company and the Pass Through Trustee
of any supplemental agreement relating to any Pass Through Trust pursuant to
the provisions of this Section 11.02, the Pass Through Trustee shall mail a
notice thereof by first-class mail to the related Certificateholders at their
addresses as they shall appear on the related Register, setting forth in
general terms the substance of such supplemental agreement. Any failure of the
Pass Through Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
agreement.
Section 11.03. Effect of Supplemental Agreements. Upon the execution of
any supplemental agreement pursuant to the provisions hereof and of any
applicable Series Supplement, this Pass Through Agreement and such Series
Supplement shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities hereunder and under the related Pass Through Trust of the Pass
Through Trustee, the Company and the related Certificateholders shall
thereafter be determined, exercised and enforced hereunder and thereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions
62
of any such supplemental agreement shall be and be deemed to be part of the
terms and conditions of this Pass Through Agreement and such Pass Through Trust
for any and all purposes.
Section 11.04. Documents to Be Given to Trustee. The Pass Through Trustee,
subject to the provisions of Sections 8.02 and 8.03 hereof, may receive and
rely upon an Opinion of Counsel as conclusive evidence that any such
supplemental agreement complies with the applicable provisions of this Pass
Through Agreement and any applicable Series Supplement.
Section 11.05. Notation on Pass Through Certificates in Respect of
Supplemental Agreements. Pass Through Certificates of any Series authenticated
and delivered after the execution of any supplemental agreement relating to
such Series pursuant to the provisions of this Article XI may bear a notation
in form approved by the Pass Through Trustee as to any matter provided for by
such supplemental agreement. If the Company or the Pass Through Trustee shall
so determine, new Pass Through Certificates for such Series so modified as to
conform, in the opinion of the Company and the Pass Through Trustee, to any
modification of this Pass Through Agreement contained in any such supplemental
agreement may be provided by the Company, executed and authenticated by the
Pass Through Trustee and delivered in exchange for the Outstanding Pass Through
Certificates of such Series.
Section 11.06. Trust Indenture Act. Any supplemental agreement executed
pursuant to the terms of this Article XI shall on the date of the execution
thereof conform to the provisions of the Trust Indenture Act as in force on
such date.
Section 11.07. Revocation and Effect of Consents. Until an amendment or
waiver becomes effective, a consent to it by a Certificateholder is a
continuing consent by such Certificateholder and every subsequent
Certificateholder of the related Pass Through Certificate, even if notation of
the consent is not made on such Pass Through Certificate. However, any such
Certificateholder or subsequent Certificateholder may revoke the consent as to
its, his or her Pass Through Certificate if the Pass Through Trustee receives
the notice of revocation before the date the amendment or waiver becomes
effective. After an amendment or waiver becomes effective, it shall bind every
Certificateholder affected by such amendment or waiver.
Section 11.08. Amendments, Waivers, Etc. of Related Indenture Documents.
If the Pass Through Trustee, as holder of any Equipment Certificate in trust
for the benefit of the Certificateholders of any Series or as Controlling
Party, receives a request for a consent to any modification, amendment or
63
supplement to any related Indenture or other related Indenture Document or to
give any consent, waiver, authorization or approval under such related
Indenture or such other related Indenture Documents, the Pass Through Trustee
shall forthwith notify each Certificateholder of such Series, as shown on the
related Register as of such date, of such request. Such notice shall request
instructions from such Certificateholders with respect to such request. Subject
to Section 7.10 hereof, the Pass Through Trustee shall, as the holder of such
Equipment Certificate, consent or vote with respect thereto in the same
proportion as so instructed by the respective Certificateholders of the related
Pass Through Certificates. Notwithstanding the foregoing, but subject to
Section 7.09 hereof and any Intercreditor Agreement, if an Event of Default
shall have occurred and be continuing, the Pass Through Trustee may, in its own
discretion and at its own direction, consent and notify the Related Indenture
Trustee of such consent to any modification, amendment, supplement or waiver
under any related Indenture Document.
ARTICLE XII
Termination of Pass Through Trusts; Unclaimed Moneys
Section 12.01. Termination of Pass Through Trusts. For any Pass Through
Trust created by this Pass Through Agreement as supplemented by a related
Series Supplement, such Pass Through Trust and the respective obligations and
responsibilities of the Company and the Pass Through Trustee under such Pass
Through Trust shall terminate upon the distribution to all Certificateholders
of the related Series and the Pass Through Trustee of all amounts required to
be distributed to them pursuant to this Pass Through Agreement and the related
Series Supplement and the disposition of all property held as part of the Trust
Property of such Pass Through Trust; provided that in no event shall such Pass
Through Trust continue beyond the final expiration date determined as provided
in such Series Supplement.
Notice of termination of any Pass Through Trust, specifying the applicable
Distribution Date upon which the Certificateholders of the related Series may
surrender their Pass Through Certificates to the Pass Through Trustee for
payment of the final distribution and cancellation thereof, shall be mailed
promptly by the Pass Through Trustee to such Certificateholders not earlier
than the 60th day and not later than the 20th day next preceding such final
distribution specifying (i) the Distribution Date upon which such final
distribution will be made and that such distribution will be made only upon
presentation and surrender of the related Pass Through Certificates at the
office or agency of the Pass Through Trustee specified therein, (ii) the amount
of any such final distribution, and (iii) that the Record
64
Date otherwise applicable to such Distribution Date is not applicable. The Pass
Through Trustee shall notify the related Registrar at the time such
Certificateholders are notified of such final distribution. Upon presentation
and surrender of the Pass Through Certificates of such Series, the Pass Through
Trustee shall distribute all amounts distributable on such Pass Through
Certificates on such Distribution Date pursuant to Section 5.02 hereof.
Section 12.02. Application by Pass Through Trustee of Funds Deposited for
Payment of Pass Through Certificates. Subject to Section 12.04 hereof, all
moneys deposited with the Pass Through Trustee for payment pursuant to Section
12.01 hereof shall be held in trust and applied by it to the prompt payment,
either directly or through any Paying Agent, to the Certificateholders of the
particular Pass Through Certificates for the payment or redemption of which
such moneys have been deposited with the Pass Through Trustee, of all sums due
and to become due thereon; but such money need not be segregated from other
funds except to the extent required by law.
In the event that all of the Certificateholders of such Series shall not
surrender their Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Pass Through Trustee shall
give a second written notice to the remaining Certificateholders of such Series
to surrender their Certificates for cancellation and to receive the final
distribution with respect thereto.
Section 12.03. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of any Pass Through Trust, all moneys then
held by any Paying Agent for such Pass Through Trust shall, upon demand of the
Pass Through Trustee, be repaid to it and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
Section 12.04. Transfer of Moneys Held by Pass Through Trustee and Paying
Agent Unclaimed for Two Years and Eleven Months. Any moneys deposited with or
paid to the Pass Through Trustee or any Paying Agent to be distributed on any
Pass Through Certificate and not applied but remaining unclaimed for two years
and eleven months after the date upon which such amount has become due and
payable, shall, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be paid to the applicable
Related Indenture Trustees by the Pass Through Trustee or such Paying Agent and
the applicable Certificateholder shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to such Related Indenture Trustees for any payment which
such Certificateholder may be entitled to collect, and all
65
liability of the Pass Through Trustee, or any Paying Agent with respect to such
moneys shall thereupon cease.
ARTICLE XIII
Miscellaneous
Section 13.01. Capacity in Which Acting. The Pass Through Trustee acts
hereunder and under any Pass Through Trust not in its individual capacity but
solely as trustee except as expressly provided herein or in the related Series
Supplement.
Section 13.02. No Legal Title to Trust Property in Certificateholders. No
Certificateholder of any Series shall have legal title to any part of the Trust
Property of the related Pass Through Trust. No transfer, by operation of law or
otherwise, of any Pass Through Certificate or other right, title and interest
of any Certificateholder in and to such Trust Property or under the related
Pass Through Trust shall operate to terminate such Pass Through Trust or
entitle such Certificateholder or any successor or transferee of such
Certificateholder to an accounting or to the transfer to it of legal title to
any part of such Trust Property.
Section 13.03. Certificates Nonassessable and Fully Paid. No
Certificateholder of any Series shall be personally liable for obligations of
the related Pass Through Trust, the Fractional Undivided Interests represented
by the Pass Through Certificates of such Series shall be nonassessable for any
losses or expenses of such Pass Through Trust or for any reason whatsoever, and
upon authentication of such Pass Through Certificates by the Pass Through
Trustee pursuant to Section 3.02 hereof, such Pass Through Certificates will be
and shall be deemed fully paid. No Certificateholder of such Series shall have
any right (except as expressly provided herein) to vote or in any manner
otherwise control the operation and management of the related Trust Property,
the related Pass Through Trust, or the obligations of the parties hereto, nor
shall anything set forth herein, in the related Series Supplement or in the
related Pass Through Certificates be construed so as to constitute the
Certificateholders of such Series from time to time as partners or members of
an association.
Section 13.04. Pass Through Agreement for the Benefit of the Company, the
Pass Through Trustee and the Certificateholders. Nothing in this Pass Through
Agreement, in any Series Supplement or in any Pass Through Certificate, whether
express or implied, shall be construed to give to any person other than the
Company, the Pass Through Trustee, as trustee and in its individual capacity,
and the Certificateholders of the respective related Series any legal or
equitable right,
66
remedy or claim under or in respect of this Pass Through Agreement, any Pass
Through Trust or any such Pass Through Certificate.
Section 13.05. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder of any Series shall not operate to
terminate this Pass Through Agreement or the related Pass Through Trust, nor
entitle such Certificateholder's legal representatives or heirs to claim an
accounting or to take any action or commence any proceeding in any court for a
partition or winding up of such Pass Through Trust, nor otherwise affect the
rights, obligations, and liabilities of the parties hereto or any of them. No
Certificateholder of any Series shall be entitled to revoke the related Pass
Through Trust.
Section 13.06. Notices. Unless otherwise expressly specified or permitted
by the terms hereof or the applicable Series Supplement with respect to any
Pass Through Trust, all notices, requests, demands, authorizations, directions,
consents, waivers or documents provided or permitted by this Pass Through
Agreement or such Series Supplement to be made, given, furnished or filed with
respect to such Pass Through Trust shall be in writing, mailed by certified
mail, postage prepaid, or by confirmed facsimile, and (i) if to the Pass
Through Trustee, addressed to it at its Principal Corporate Trust Office,
telephone (000) 000-0000, facsimile (000) 000-0000 or (ii) if to the Company,
addressed to it at its office at 000 Xxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxx
00000, Attention: Vice President and Treasurer, facsimile (000) 000-0000 with a
copy to Senior Vice President and General Counsel at 0000 Xxxxxxxxx Xxxxxxxxx,
Xxxxxxx, Xxxxxxxxx 00000, telephone (000) 000-0000, facsimile (000) 000-0000,
and as to any Series, as otherwise specified in the Series Supplement related
thereto. The Company or the Pass Through Trustee as to any Series, by notice to
the other, may designate additional or different addresses for subsequent
notices or communications. Any party hereto may change the address to which
notices to such party will be sent by giving notice of such change to the other
party to this Pass Through Agreement.
Where this Pass Through Agreement or any Series Supplement provides for
notice to Certificateholders of any Series, such notice shall be sufficiently
given (unless otherwise expressly provided herein) if in writing and mailed,
first-class postage prepaid, to each such Certificateholder entitled thereto,
at his or her last address as it appears in the related Register. In any case
where notice to Certificateholders of any Series is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Certificateholder shall affect the sufficiency of such notice with
respect to other Certificateholders of such Series. Where this Pass Through
Agreement or any Series Supplement provides for notice in any manner, such
notice may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by
67
Certificateholders shall be filed with the Pass Through Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to any Certificateholders
when such notice is required to be given pursuant to any provision of this Pass
Through Agreement or any related Series Supplement, then any manner of giving
such notice as shall be satisfactory to the Pass Through Trustee shall be
deemed to be a sufficient giving of such notice.
Section 13.07. Officer's Certificate and Opinion of Counsel; Statements to
Be Contained Therein. Upon any application or demand by the Company to the Pass
Through Trustee to take any action, the Company shall furnish to the Pass
Through Trustee (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Pass Through Agreement and the
applicable Series Supplement relating to the proposed action have been complied
with and that the proposed action is in conformity with the requirements of
this Pass Through Agreement and such Series Supplement, or (ii) an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Pass Through Agreement or such
Series Supplement relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate or opinion required by this Pass Through Agreement or any
Series Supplement and delivered to the Pass Through Trustee with respect to
compliance with a condition or covenant provided for in this Pass Through
Agreement or such Series Supplement, except for the certificate required by
Section 4.03(d) hereof shall include (a) a statement that the person making
such certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such person, he or she has made
such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with and (d) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of counsel may be based, insofar as
it relates to factual matters information with respect to which is in the
possession of the Company, upon the certificate, statement or opinion of or
representations by
68
an officer or officers of the Company unless such counsel knows that the
certificate, statement or opinion or representations with respect to the
matters upon which his or her certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or of
counsel thereto may be based, insofar as it relates to accounting matters, upon
a certificate or opinion of or representations by an accountant or firm of
accountants employed by the Company unless such officer or counsel, as the case
may be, knows that the certificate or opinion or representations with respect
to the accounting matters upon which such certificate, statement or opinion may
be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with the Pass Through Trustee shall contain a statement that such firm is
independent.
Section 13.08. Conflict of Any Provision of Pass Through Agreement with
the Trust Indenture Act. If and to the extent that any provision of this Pass
Through Agreement limits, qualifies or conflicts with another provision
included in this Pass Through Agreement by operation of Sections 310 to 317,
inclusive, of the Trust Indenture Act (an "incorporated provision"), such
incorporated provision shall control.
Section 13.09. Severability. Any provision of this Pass Through Agreement
or any Series Supplement 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 or thereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
Section 13.10. No Oral Modifications or Continuing Waivers. No terms or
provisions of this Pass Through Agreement, any Series Supplement, or any Pass
Through Certificates may be changed, waived, discharged or terminated orally,
but only by an instrument in writing signed by the party or other person
against whom enforcement of the change, waiver, discharge or termination is
sought; and any waiver of the terms hereof or thereof shall be effective only
in the specific instance and for the specific purpose given.
69
Section 13.11. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of
the parties hereto and the successors and permitted assigns of each, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Certificateholder shall bind the successors and
assigns of such Certificateholder.
Section 13.12. Headings. The headings of the various Articles and Sections
herein and in the table of contents hereto are for the convenience of reference
only and shall not define or limit any of the terms or provisions hereof.
Section 13.13. Normal Commercial Relations. Anything contained in this
Pass Through Agreement to the contrary notwithstanding, the Pass Through
Trustee and any Certificateholder, or any bank or other affiliate of any such
party, may conduct any banking or other financial transactions, and have
banking or other commercial relationships, with the Company fully to the same
extent as if this Pass Through Agreement were not in effect, including without
limitation the making of loans or other extensions of credit to the Company for
any purpose whatsoever, whether related to any of the transactions contemplated
hereby or otherwise.
Section 13.14. Governing Law; Counterpart Form. THIS PASS THROUGH
AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE. This Pass Through 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 13.15. Distributions Due on Days Other than Business Days. If, for
any Pass Through Trust, any Distribution Date is not a Business Day, then such
distribution need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
applicable Distribution Date, and no interest shall accrue for the intervening
period.
Section 13.16. Registration of Equipment Certificates in Name of
Subordination Agent. If a Pass Through Trust is party to an Intercreditor
Agreement, the Pass Through Trustee agrees that all Equipment Certificates to
be purchased by such Pass Through Trust shall be issued in the name of the
Subordination Agent under such Intercreditor Agreement or its nominee and held
by such Subordination Agent in trust for the benefit of the Certificateholders,
or, if
70
not so held, such Subordination Agent or its nominee shall be reflected as the
owner of such Equipment Certificates in the register of the issuer of such
Equipment Certificates.
71
IN WITNESS WHEREOF, the parties hereto have caused this Pass Through
Agreement to be duly executed this ____ day of ____, 200__ by their respective
officers or authorized agents thereunto duly authorized, and acknowledge that
this Pass Through Agreement has been made and delivered in the City of New
York, and this Pass Through Agreement shall be effective only upon such
execution and delivery.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity,
except as otherwise expressly provided
herein, but solely as Pass Through Trustee
By:
----------------------------------------
Name:
Title:
FEDERAL EXPRESS CORPORATION
By:
----------------------------------------
Name:
Title:
72
Exhibit A
to
Pass Through Agreement
FORM OF PASS THROUGH CERTIFICATE
[THIS IS A REGISTERED GLOBAL CERTIFICATE REFERRED TO IN
SECTION 2.12 OF THE PASS THROUGH TRUST AGREEMENT.
Unless this pass through certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Pass Through Trustee or its agent for registration or transfer, exchange
or payment, and any certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
THEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]*
FEDERAL EXPRESS CORPORATION PASS THROUGH TRUST, 200__ - __
200_ Pass Through Certificate, Class ___
CUSIP ______
Final Regular Distribution Date: _______
evidencing a fractional undivided interest in a pass through trust.
Certificate No. _______
Applicable interest rate on Equipment Certificates held in
Pass Through Trust, 200__ - _____: ____%.
$___________ Fractional Undivided Interest representing _______% of the Pass
Through Trust per $1,000 face amount.
THIS CERTIFIES THAT ______________, for value received, is the registered
owner of a $_________ (_____________ dollars) Fractional Undivided Interest in
the Federal Express Corporation Pass Through Trust, 200_-_ (the "Pass
--------
* This paragraph is required only if the Pass Through Certificates are to
be represented by the Registered Global Certificate.
Through Trust") created and declared by ___________________________________,
as pass through trustee (the "Pass Through Trustee"), pursuant to the Pass
Through Trust Agreement dated as of __________, _____ (the "Pass Through
Agreement"), as supplemented by Series Supplement __ thereto dated ____________,
200_ (the "Series Supplement") between the Pass Through Trustee and Federal
Express Corporation, a Delaware corporation (the "Company"), a summary of
certain of the pertinent provisions of which is set forth below. To the extent
not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Pass Through Agreement and the Series
Supplement.
This Pass Through Certificate is one of the duly authorized Pass Through
Certificates designated as "Federal Express Corporation 200_ Pass Through
Certificates, Class _______." This Pass Through Certificate is issued under and
is subject to the terms, provisions, and conditions of the Pass Through
Agreement, the Series Supplement, any Intercreditor Agreement or any Liquidity
Facility, to which the Certificateholder of this Pass Through Certificate by
virtue of the acceptance hereof assents and by which such Certificateholder is
bound. The property of the Pass Through Trust includes (i) the Equipment
Certificates held in such Pass Through Trust, (ii) the rights of such Pass
Through Trust under any Intercreditor Agreement (including all monies
receivable in respect of such rights), (iii) all monies receivable under any
Liquidity Facility for such Pass Through Trust, and (iv) funds from time to
time deposited with the Pass Through Trustee in accounts relating to such Pass
Through Trust (the "Trust Property"). Equipment Certificates of each series are
secured by a security interest in (A) an aircraft leased to or, if any of the
Aircraft have been purchased by the Company pursuant to the related
Participation Agreement, owned by the Company and, in the case of a leased
aircraft, an assignment of the rights of the Related Owner Trustee with respect
to such aircraft, including the right to receive rent and other amounts payable
under the related Lease or Indenture with respect to such aircraft or (B) a
collateral account containing the proceeds of the sale of such series of
Equipment Certificates, which shall be invested in Specified Investments
pursuant to the related Indenture. Each of the Pass Through Certificates
represents a Fractional Undivided Interest in the Pass Through Trust and the
Trust Property, and has no rights, benefits or interests in respect of any
other separate trust established pursuant to the terms of the Pass Through
Agreement for any other class of Pass Through Certificates issued pursuant
thereto.
Subject to and in accordance with the terms of the Pass Through Agreement,
the Series Supplement, any Intercreditor Agreement or any Liquidity Facility,
from funds then available to the Pass Through Trustee, there will be
distributed on each ______ and _____ (a "Regular Distribution Date"),
commencing on _______, __, to the Person in whose name this Pass Through
A-2
Certificate is registered at the close of business on the 15th day preceding
the applicable Regular Distribution Date, an amount in respect of the Scheduled
Payments on the Equipment Certificates due on such Regular Distribution Date,
equal to the product of the percentage interest in the Pass Through Trust
evidenced by this Pass Through Certificate and an amount equal to the sum of
such Scheduled Payments so received.
Subject to and in accordance with the terms of the Pass Through Agreement,
the Series Supplement and any Intercreditor Agreement, if Special Payments on
the Equipment Certificates are received by the Pass Through Trustee, from funds
then available to the Pass Through Trustee, there shall be distributed on the
applicable Special Distribution Date, to the Person in whose name this Pass
Through Certificate is registered at the close of business on the 15th day
preceding such Special Distribution Date, an amount in respect of such Special
Payments on the Equipment Certificates, equal to the product of the percentage
interest in the Pass Through Trust evidenced by this Pass Through Certificate
and an amount equal to the sum of such Special Payments so received.
If a Distribution Date is not a Business Day, distribution shall be made
on the immediately following Business Day with the same force and effect as if
made on such Distribution Date and no interest shall accrue during the
intervening period. The Special Distribution Date shall be any Business Day on
which a Special Payment is to be distributed.
Distributions on this Pass Through Certificate will be made by the Pass
Through Trustee to the Person entitled thereto, without the presentation or
surrender of this Pass Through Certificate or the making of any notation
hereon. Except as otherwise provided in the Pass Through Agreement and
notwithstanding the above, the final distribution on this Pass Through
Certificate will be made after notice is mailed by the Pass Through Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Pass Through Certificate at the office or agency of the Pass Through
Trustee specified in such notice.
[NO EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR INDIVIDUAL RETIREMENT
ACCOUNT OR PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (HEREINAFTER COLLECTIVELY REFERRED TO AS AN "ERISA" PLAN), MAY
ACQUIRE OR HOLD ANY OF THE PASS THROUGH CERTIFICATES. THE PURCHASE BY ANY
PERSON OF ANY PASS THROUGH CERTIFICATE CONSTITUTES A REPRESENTATION BY SUCH
PERSON TO FEDERAL EXPRESS CORPORATION, THE RELATED
A-3
OWNER PARTICIPANTS, THE RELATED OWNER TRUSTEES, THE RELATED INDENTURE TRUSTEES
AND THE PASS THROUGH TRUSTEE OR THEIR RESPECTIVE SUCCESSORS, AS THE CASE MAY
BE, THAT SUCH PERSON IS NOT AN ERISA PLAN AND THAT SUCH PERSON IS NOT
ACQUIRING, AND HAS NOT ACQUIRED, SUCH PASS THROUGH CERTIFICATE WITH ASSETS OF
AN ERISA PLAN.]**
THIS PASS THROUGH CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANC.
Reference is hereby made to the further provisions of this Pass Through
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Pass Through Trustee, by manual signature, this Pass Through Certificate shall
not be entitled to any benefit under the Pass Through Trust or be valid for any
purpose.
--------
** Subject to revision as set forth in Section 6.06 hereof.
A-4
IN WITNESS WHEREOF, the Pass Through Trustee has caused this Pass Through
Certificate to be duly executed.
FEDERAL EXPRESS CORPORATION PASS
THROUGH TRUST, SERIES 200__-__
By:
----------------------------------------
as Pass Through Trustee
By:
------------------------------------
Authorized Signatory
[FORM OF THE PASS THROUGH TRUSTEE'S CERTIFICATE OF
AUTHENTICATION]
Dated:
This is one of the Pass Through Certificates referred to in the
within-mentioned Pass Through Agreement and related Series Supplement.
-------------------------------------------
as Pass Through Trustee
By:
--------------------------------
Authorized Signatory
A-5
[Reverse of Pass Through Certificate]
The Pass Through Certificates do not represent a direct obligation of, or
an obligation guaranteed by, or an interest in, the Company or the Pass Through
Trustee or any affiliate thereof. The Pass Through Certificates are limited in
right of payment, all as more specifically set forth on the face hereof and in
the Pass Through Agreement, any Intercreditor Agreement, any Liquidity Facility
and the Series Supplement. Subject to the Intercreditor Agreement, all payments
or distributions made to Certificateholders under the Pass Through Agreement
shall be made only from the Trust Property and only to the extent that the Pass
Through Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of the Pass Through
Agreement and the Series Supplement. Each Certificateholder of this Pass
Through Certificate, by its acceptance hereof, agrees that it will look solely
to the income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Pass Through
Agreement, any Intercreditor Agreement, any Liquidity Facility and the Series
Supplement.
In connection with withholding taxes, under certain circumstances the Pass
Through Trustee may retain certain amounts otherwise distributable to a
Certificateholder. The purchase by any Certificateholder of any Pass Through
Certificate constitutes the consent of such Certificateholder to such retention
in accordance with the terms of the Pass Through Agreement.
This Pass Through Certificate does not purport to summarize the Pass
Through Agreement, any Intercreditor Agreement, any Liquidity Facility and the
Series Supplement and reference is made to the Pass Through Agreement, any
Intercreditor Agreement, any Liquidity Facility and the Series Supplement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby. A copy of the Pass Through Agreement, any
Intercreditor Agreement, any Liquidity Facility and the Series Supplement may
be examined by any Certificateholder upon request during normal business hours
at the Principal Corporate Trust Office of the Pass Through Trustee, and at
such other places designated by the Pass Through Trustee.
As of the date of issuance of this Pass Through Certificate, and assuming
that no prepayment or default in respect of payment on the Equipment
Certificates shall occur and assuming there will be no change in the payment
terms of the Equipment Certificates, the aggregate scheduled repayments of
principal on the Equipment Certificates for the Pass Through Trust and the
resulting Pool Factors for the Pass Through Trust after taking into account
each such repayment are set forth below:
A-6
Pass Through Trust, 200__-___
Regular Scheduled Principal
Distribution Date Payments on Pool Factor
Equipment Certificates
$ 0.0000000
The Pass Through Agreement, any Intercreditor Agreement, any Liquidity
Facility and the Series Supplement permit, with certain exceptions provided
therein, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Certificateholders under the
Pass Through Trust at any time by the Company and the Pass Through Trustee with
the consent of the Majority In Interest of Certificateholders in the Pass
Through Trust. Any such consent by the Certificateholder of this Pass Through
Certificate shall be conclusive and binding on such Certificateholder and upon
all future Certificateholders of this Pass Through Certificate and of any Pass
Through Certificate issued upon the transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent is made upon this Pass
Through Certificate. The Pass Through Agreement, any Intercreditor Agreement,
any Liquidity Facility and the Series Supplement also permit the amendment
thereof, in certain limited circumstances, without the consent of the
Certificateholders of any of the Pass Through Certificates.
As provided in the Pass Through Agreement and the Series Supplement and
subject to certain limitations set forth therein, the transfer of this Pass
Through Certificate is registrable in the Register upon surrender of this Pass
Through Certificate for registration of transfer to the Pass Through Trustee in
its capacity as Registrar, or by any successor Registrar, duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Pass Through Trustee and the Registrar duly executed by the Certificateholder
hereof or such Certificateholder's attorney duly authorized in writing, and
thereupon one or more new Pass Through Certificates of authorized denominations
evidencing the same aggregate Fractional Undivided Interest in the Pass Through
Trust will be issued to the designated transferee or transferees.
The Pass Through Certificates are issuable only as registered Pass Through
Certificates without coupons in minimum denominations of $1,000 fractional
undivided interests and integral multiples thereof. As provided in the Pass
Through Agreement and the Series Supplement and subject to certain limitations
set forth therein, the Pass Through Certificates are exchangeable for new Pass
Through Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Pass Through Trust, as requested by the
Certificateholder surrendering the same.
A-7
No service charge will be made for any such registration of transfer or
exchange, but the Pass Through Trustee may require payment of a sum sufficient
to cover any tax or governmental charge payable in connection therewith.
The Pass Through Trustee, the Registrar, and any agent of the Pass Through
Trustee or the Registrar may treat the person in whose name this Pass Through
Certificate is registered as the owner hereof for all purposes, and neither the
Pass Through Trustee, the Registrar, nor any such agent shall be affected by
any notice to the contrary.
The obligations and responsibilities created by the Pass Through Agreement
and the Series Supplement and the Pass Through Trust created thereby shall
terminate upon the distribution to Certificateholders of all amounts required
to be distributed to them pursuant to the Pass Through Agreement, any
Intercreditor Agreement, any Liquidity Facility and the Series Supplement and
the disposition of all property held as part of the Trust Property.
A-8
Exhibit B
to
Pass Through Agreement
-----------------------------------------------------
SERIES SUPPLEMENT 200__-___
Dated __________, 200__
between
-----------------------------------
as Pass Through Trustee
and
FEDERAL EXPRESS CORPORATION
to
PASS THROUGH TRUST AGREEMENT
Dated as of _________, ____
$------------------
Federal Express Corporation
Pass Through Trust, 200__-___
Federal Express Corporation
200__ Pass Through Certificates,
Series ___
-----------------------------------------------------
SERIES SUPPLEMENT 200__-___
SERIES SUPPLEMENT 200__-___, dated _________, 200__ (this "Series
Supplement"), between FEDERAL EXPRESS CORPORATION, a Delaware corporation
(together with its permitted successors and assigns, the "Company") and
______________________________________, a _____________________ company, as
Pass Through Trustee (the "Pass Through Trustee"), to the Pass Through Trust
Agreement, dated as of ________, ____ (the "Pass Through Agreement"), between
the Company and _______________________________, a ___________________________.
RECITALS
WHEREAS, capitalized terms used herein shall have the respective meanings
set forth or referred to in Article I hereof;
WHEREAS, Section 2.01 of the Pass Through Agreement provides, among other
things, that the Company and the Pass Through Trustee may execute and deliver
one or more series supplements, each for the purpose of forming a separate pass
through trust for the benefit of the certificateholders of the series of pass
through certificates to be issued pursuant to such pass through trust,
appointing an institution to act as Pass Through Trustee if different from the
institution executing the Pass Through Agreement, establishing certain terms of
such pass through certificates, and pursuant to which the pass through
certificates of such series shall be executed and authenticated by the Pass
Through Trustee and delivered as directed by the Company;
WHEREAS, pursuant to the Participation Agreements, the Company has agreed
to cause the Equipment Certificates to be issued and sold to the Pass Through
Trustee, and the Pass Through Trustee has agreed to purchase the Equipment
Certificates, which will be held in trust as Trust Property for the benefit of
the Certificateholders;
WHEREAS, in order to facilitate such sale, the Company has agreed,
pursuant to the Underwriting Agreement, to cause the Pass Through Trustee to
issue and sell the Pass Through Certificates to the Underwriters;
WHEREAS, pursuant to the Pass Through Agreement and the terms of this
Series Supplement, the Pass Through Trustee will execute, authenticate and
deliver the Pass Through Certificates to the Underwriters upon receipt by the
Pass
Through Trustee of the purchase price therefor, which will be applied in
accordance with this Series Supplement to purchase the Equipment Certificates;
WHEREAS, the Pass Through Trustee hereby declares the creation of this
Pass Through Trust for the benefit of the Certificateholders, and the initial
Certificateholders of such Pass Through Certificates, as the grantors of such
Pass Through Trust, by their respective acceptances of such Pass Through
Certificates, join in the creation of such Pass Through Trust;
WHEREAS, to facilitate the sale of the Equipment Certificates to, and the
purchase of the Equipment Certificates by, the Pass Through Trustee on behalf
of this Pass Through Trust, the Company has duly authorized the execution and
delivery of this Series Supplement as the "issuer," as such term is defined in
and solely for purposes of the Securities Act, of the Pass Through Certificates
and as the "obligor," as such term is defined in and solely for purposes of the
Trust Indenture Act, with respect to all such Pass Through Certificates; and
WHEREAS, this Series Supplement is subject to the provisions of the Trust
Indenture Act and shall, to the extent applicable, be governed by such
provisions;
IT IS HEREBY COVENANTED AND AGREED by and between the parties hereto as
follows:
ARTICLE I
Certain Definitions
All terms used in this Series Supplement that are defined in the Pass
Through Agreement, either directly or by reference therein, have the meanings
assigned to them therein as supplemented by this Article I, if applicable,
except to the extent the context requires otherwise. Any such defined term that
is defined in the Pass Through Agreement as relating to a particular Pass
Through Trust or Series rather than to any Pass Through Trust or Series
generally shall, when used in this Series Supplement, relate solely to the
Federal Express Corporation Pass Through Trust, 200__-___, or the Federal
Express Corporation 200__ Pass Through Certificates, Series ___, as the case
may be, whether or not expressly so stated herein.
"Aircraft" means ___________________________ aircraft , including the
Engines (as such term is defined in the related Participation Agreement)
relating thereto, (i) leased or expected to be leased by the Owner Trustee to
the
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Company pursuant to a Lease or (ii) to be purchased by the Company as provided,
and under the circumstances specified, in Section 3.07 hereof) and,
collectively, means all of the foregoing.
"Authenticating Agent" has the meaning set forth in Section 3.06 hereof.
"Certificate Account" means the Certificate Account specified in Section
3.03 hereof.
"Certificateholders" means the Certificateholders of the Series of Pass
Through Certificates designated in Section 2.01 hereof.
"Collateral Account" means the Collateral Account established pursuant to
the Indenture for Federal Express Corporation Trust No. N_____FE into which the
proceeds of sale of the related Equipment Certificates will be deposited.
"Cut-off Date for Pass Through Trust" is inapplicable.
"Delivery Date" means, for any Equipment Certificates, the Refunding Date
or the Pass Through Closing Date (as such term is defined in the related
Participation Agreement) for such Equipment Certificates.
"Equipment Certificates" means those Equipment Trust Certificates listed
in Schedule I hereto.
"Intercreditor Agreement" has the meaning defined in Article I of the Pass
Through Agreement.
"Issuance Date" means the date defined as the Closing Time in the
Underwriting Agreement.
"Liquidity Facility" has the meaning defined in Article I of the Pass
Through Agreement.
"Liquidity Provider" means _______________________________.
"Participation Agreements" means those Participation Agreements listed in
Schedule I hereto.
"Pass Through Certificates" means the Pass Through Certificates designated
in Section 2.01 hereof.
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"Pass Through Trust," "this Pass Through Trust" and other like words means
the Pass Through Trust designated in Section 2.01 hereof.
"Paying Agent" means the Person specified as such in Section 3.06
hereof.
"Record Date" means any Record Date specified in Section 3.02 hereof.
"Registrar" means the Person specified as such in Section 3.06 hereof.
"Regular Distribution Date" means any Regular Distribution Date specified
in Section 3.01 hereof.
"Special Distribution Date" means, for any Special Payment, the
Special Distribution Date for such Special Payment specified in Section 3.01
hereof.
"Special Payments Account" means the Special Payments Account specified in
Section 3.03 hereof.
"Subordination Agent" means ___________________________.
"Trust Property" means (i) all money, instruments, including the Equipment
Certificates that have been issued by the related Owner Trustee and delivered
to and accepted by the Pass Through Trustee for the benefit of the
Certificateholders, and other property held as the property of this Pass
Through Trust, including all distributions thereon and proceeds thereof and
(ii) all rights of the Pass Through Trust and the Pass Through Trustee, on
behalf of the Pass Through Trust, under any Intercreditor Agreement and the
Liquidity Facility, including, without limitation, all rights to receive
certain payments thereunder, and all monies paid to the Pass Through Trustee on
behalf of the Pass Through Trust pursuant to any Intercreditor Agreement or the
Liquidity Facility.
"Underwriters" means the several Underwriters named in the Underwriting
Agreement.
"Underwriting Agreement" means the Underwriting Agreement dated
_________, 200__ among the Company and ____________________________.
B-4
ARTICLE II
Designations; Trust Formation; Issuance of Pass Through Certificates
Section 2.01. Designations; Aggregate Amount. The Pass Through Trust
created hereby shall be designated Federal Express Corporation Pass Through
Trust, 200__-___ (herein sometimes called this "Pass Through Trust"). The Pass
Through Certificates evidencing Fractional Undivided Interests in such Pass
Through Trust shall be designated as the Federal Express Corporation 200__ Pass
Through Certificates, Series ___ (herein sometimes called the "Series ___ Pass
Through Certificates"). The Series ___ Pass Through Certificates shall be the
only instruments evidencing a fractional undivided interest in such Pass
Through Trust.
Except as provided in Sections 2.08, 2.09 and 2.11 of the Pass Through
Agreement, the aggregate amount of Series ___ Pass Through Certificates that
may be authenticated, delivered and outstanding under this Series Supplement is
limited to $_________________.
Section 2.02. Declaration of Trust; Authorization. Each initial
Certificateholder, by its acceptance of any Series ___ Pass Through Certificate
is hereby deemed (1) as grantor, to join in the creation and declaration of
this Pass Through Trust and (2) as beneficiary of such Pass Through Trust, to
authorize and direct the Pass Through Trustee to execute and deliver all
documents to which the Pass Through Trustee is a party that may be necessary or
desirable to consummate the transactions contemplated hereby and to exercise
its rights and perform its duties under the Participation Agreements, the
Indentures, the Pass Through Agreement, the Intercreditor Agreement and this
Series Supplement.
The Pass Through Trustee hereby acknowledges and accepts this grant of
trust and declares that it will hold the Trust Property as Pass Through Trustee
of this Pass Through Trust for the use and benefit of the Certificateholders.
Section 2.03. Issuance of Pass Through Certificates. Subject to the
terms set forth herein, on the Issuance Date (i) the Company shall direct the
Underwriters to execute a wire transfer or intra-bank transfer to the Pass
Through Trustee in the amount of the total proceeds payable by such
Underwriters pursuant to the Underwriting Agreement with respect to the Series
___ Pass Through Certificates and (ii) the Pass Through Trustee shall deliver
the Series ___ Pass Through Certificates to the Underwriters as provided in the
Underwriting Agreement upon receipt by the Pass Through Trustee of such
proceeds.
Section 2.04. Purchase of Equipment Certificates. On the Issuance Date,
the Pass Through Trustee shall purchase, in accordance with Section 2.02 of the
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Pass Through Agreement, each of the Equipment Certificates upon the
satisfaction or waiver of the conditions for such purchase by the Pass Through
Trustee set forth in the related Participation Agreement.
Section 2.05. Representations and Warranties of the Company. All of the
representations and warranties of the Company set forth or incorporated by
reference in Section 1 of the Underwriting Agreement are incorporated by
reference in this Series Supplement as if set forth herein and the Company
represents and warrants that such representations and warranties are true and
correct on the date hereof, except to the extent that such representations and
warranties expressly relate solely to an earlier date or later date (in which
case such representations and warranties were correct on and as of such earlier
date or will be correct on and as of such later date, as the case may be).
Section 2.06. The Intercreditor Agreement. The Pass Through Trustee is
hereby directed to execute and deliver the Intercreditor Agreement on or prior
to the Issuance Date in the form delivered to the Pass Through Trustee by the
Company. The Pass Through Trustee represents and warrants that the
Intercreditor Agreement will be duly executed and delivered by one of its
officers or authorized agents who is duly authorized to execute and deliver
such document on its behalf.
Section 2.07. Conditions Precedent. The obligations of the Pass Through
Trustee to participate in the transactions described in Sections 2.03 and 2.04
hereof are subject to (i) receipt by the Pass Through Trustee of a certificate
of the Company to the same effect as the certificate of the Company delivered
to the Underwriters pursuant to Section 5(c) of the Underwriting Agreement, and
(ii) satisfaction or waiver of the conditions for the purchase by the
Underwriters of the Pass Through Certificates set forth in Section 5 of the
Underwriting Agreement, which satisfaction or waiver for the purposes hereof
shall be conclusively demonstrated by the receipt by the Pass Through Trustee
of the total proceeds payable by such Underwriters pursuant to the Underwriting
Agreement with respect to the Series ___ Pass Through Certificates.
Section 2.08. Acceptance of Appointment of Pass Through Trustee.
__________________________ represents and warrants that it is qualified to
serve as Pass Through Trustee and satisfies the criteria specified in Section
10.02 of the Pass Through Agreement for eligibility as a Pass Through Trustee.
_______________________________ hereby agrees to serve as Pass Through Trustee
for the Pass Through Certificates and acknowledges its appointment as Pass
Through Trustee in accordance with the provisions of, and subject to all of the
terms and conditions set forth in, the Pass Through Agreement and this related
Series Supplement upon the execution and delivery of this Series Supplement.
B-6
ARTICLE III
DISTRIBUTION AND RECORD DATES;
CERTIFICATE AND SPECIAL PAYMENT ACCOUNTS;
CONCERNING AUTHENTICATING AGENT, PAYING AGENT AND
REGISTRAR AND THE CERTIFICATEHOLDERS
Section 3.01. Distribution Dates. The Regular Distribution Dates are each
_____________ and ____________, commencing on ____________, 200__. The Special
Distribution Date is any Business Day on which a Special Payment is to be
distributed.
Section 3.02. Record Dates. The Record Dates for the Regular Distribution
Dates are __________ and ___________, respectively, and the Record Date for any
Special Distribution Date is the fifteenth day preceding such Special
Distribution Date, in any event, whether or not such date is a Business Day.
Section 3.03. Certificate Account and Special Payments Account. In
accordance with Section 5.01(a) of the Pass Through Agreement and upon receipt
of any Scheduled Payment, the Pass Through Trustee shall immediately deposit
such Scheduled Payment into the Certificate Account, a separate and
non-interest bearing account designated by the Pass Through Trustee to be used
for such purpose. In accordance with Section 5.01(b) of the Pass Through
Agreement and upon receipt of any Special Payment, the Pass Through Trustee
shall immediately deposit such Special Payment into the Special Payments
Account, a separate and, except as provided in Section 5.04 of the Pass Through
Agreement, non-interest bearing account designated by the Pass Through Trustee
to be used for such purpose.
Section 3.04. Form of Pass Through Certificates. Subject to Section 2.07
of the Pass Through Agreement, each of the Series ___ Pass Through Certificates
will be substantially in the form of Exhibit A hereto. The Series ___ Pass
Through Certificates will be issued pursuant to a book-entry system in the form
of one or more Registered Global Certificates and subject to the conditions set
forth in the Letter of Representations among the Company, the Pass Through
Trustee and The Depository Trust Company.
Section 3.05. Indenture Documents. The related Indenture Documents are
listed in Schedule I hereto.
Section 3.06. Appointment of Authenticating Agent; Paying Agent and
Registrar. (a) The Pass Through Trustee may appoint an authenticating agent
(the "Authenticating Agent") with respect to the Pass Through Certificates
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which shall be authorized to act on behalf of the Pass Through Trustee to
authenticate the Pass Through Certificates issued upon original issue and upon
exchange or registration of transfer thereof or pursuant to Section 2.09 of the
Pass Through Agreement. Pass Through Certificates so authenticated shall be
entitled to the benefits of the Pass Through Agreement and this Series
Supplement and shall be valid and obligatory for all purposes as if
authenticated by the Pass Through Trustee. Whenever reference is made in the
Pass Through Agreement or this Series Supplement to the authentication and
delivery of Pass Through Certificates by the Pass Through Trustee or the Pass
Through Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Pass Through Trustee by
an Authenticating Agent and a certificate of authentication executed on behalf
of the Pass Through Trustee by an Authenticating Agent.
(b) The Paying Agent, Registrar and Authenticating Agent for the Series
___ Pass Through Certificates initially shall be ______________________________.
______________________________________ hereby represents and warrants to the
Company that it is qualified to serve as Paying Agent, Registrar and
Authenticating Agent under the provisions of, and subject to all of the terms
and conditions set forth in, the Pass Through Agreement and this related Series
Supplement.
Section 3.07. Predelivery Funding. During the period between the date of
issuance of Equipment Certificates by the Owner Trustee in respect of Federal
Express Corporation Trust No. N_____FE and the delivery date of the related
Aircraft, such Equipment Certificates will not be secured by such Aircraft or
the related Lease, but will be secured by the Collateral Account. Pursuant to
the related Indenture, the Owner Trustee will deposit the proceeds from the
sale of the related Equipment Certificates into the Collateral Account for the
benefit of the related Indenture Trustee.
Sums deposited in the Collateral Account will be invested as set forth
in the Related Indenture.
Section 3.08. ERISA. [Any Person who is, or who in acquiring a Pass
Through Certificate is or may be using the assets of, an employee benefit plan
subject to Title I of The Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or an individual retirement account or plan subject to
Section 4975 of the Code, or any trust established under any such plan or
account, may acquire or hold any of the Pass Through Certificates, if such
Person determines either that an administrative or a statutory exemption from
the prohibited transaction rules under Section 406 of ERISA and Section 4975 of
the
B-8
Code is applicable to its purchase and holding of a Pass Through Certificate or
that its purchase and holding of a Pass Through Certificate will not result in
a prohibited transaction under Section 406 of ERISA and Section 4975 of the
Code.]*
Section 3.09. Registered Global Certificate. The Series ___ Pass Through
Certificates are to be issued in whole in the form of a Registered Global
Certificate, and Section 2.12 of the Pass Through Agreement shall, accordingly,
be applicable. The Depository for the Registered Global Certificate and the
Letter of Representations is The Depository Trust Company.*
--------
* Subject to revision as set forth in Section 6.06 of The Pass Through
Agreement.
B-9
ARTICLE IV
MISCELLANEOUS
Section 4.01. Governing Law; Counterpart Form. AS PROVIDED IN SECTION
13.14 OF THE PASS THROUGH AGREEMENT, THIS SERIES SUPPLEMENT AND EACH SERIES ___
PASS THROUGH CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE.
This Series Supplement 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 4.02. Reports by the Company. In addition to the reports required
to be provided by the Company pursuant to Section 4.03 of the Pass Through
Agreement, the Company agrees to furnish to the Pass Through Trustee from time
to time, such other financial information as the Pass Through Trustee may
reasonably request.
Section 4.03. Modification and Ratification of Pass Through Agreement. The
Pass Through Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Series Supplement as if set forth in full
herein, and is in all respects ratified and confirmed, as supplemented and
modified by this Series Supplement.
Section 4.04. Termination. In no event shall this Pass Through Trust
continue beyond the expiration of 21 years after the death of the last survivor
of Xxxxxx Xxxxxx, Governor of New York State, living on the date of this Series
Supplement.
B-10
IN WITNESS WHEREOF, the parties have caused their names to be signed
hereto by their respective officers or authorized agents thereunto duly
authorized, all on the day and year first above written.
----------------------------------,
not in its individual capacity,
except as otherwise expressly provided
herein, but solely as Pass Through Trustee
By:
----------------------------------------
Name:
Title:
FEDERAL EXPRESS CORPORATION
By:
----------------------------------------
Name:
Title:
B-11
Exhibit A
to
Series Supplement
FORM OF PASS THROUGH CERTIFICATE
[THIS IS A REGISTERED GLOBAL CERTIFICATE REFERRED TO IN
SECTION 2.12 OF THE PASS THROUGH TRUST AGREEMENT.
Unless this pass through certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Pass Through Trustee or its agent for registration or transfer, exchange
or payment, and any certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
THEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]*
FEDERAL EXPRESS CORPORATION PASS THROUGH TRUST, 200__ - __
200_ Pass Through Certificate, Class ___
CUSIP ______
Final Regular Distribution Date: _______
evidencing a fractional undivided interest in a pass through trust.
Certificate No. _______
Applicable interest rate on Equipment Certificates held in
Pass Through Trust, 200__ - _____: ____%.
$___________ Fractional Undivided Interest representing _______% of the Pass
Through Trust per $1,000 face amount.
THIS CERTIFIES THAT ______________, for value received, is the registered
owner of a $_________ (_____________ dollars) Fractional Undivided Interest in
the Federal Express Corporation Pass Through Trust, 200_-_ (the "Pass
--------
* This paragraph is required only if the Pass Through Certificates are
to be represented by the Registered Global Certificate.
Through Trust") created and declared by ___________________________________, as
pass through trustee (the "Pass Through Trustee"), pursuant to the Pass Through
Trust Agreement dated as of __________, _____ (the "Pass Through Agreement"),
as supplemented by Series Supplement __ thereto dated ____________, 200_ (the
"Series Supplement") between the Pass Through Trustee and Federal Express
Corporation, a Delaware corporation (the "Company"), a summary of certain of the
pertinent provisions of which is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned to
them in the Pass Through Agreement and the Series Supplement.
This Pass Through Certificate is one of the duly authorized Pass Through
Certificates designated as "Federal Express Corporation 200_ Pass Through
Certificates, Class _______." This Pass Through Certificate is issued under and
is subject to the terms, provisions, and conditions of the Pass Through
Agreement, the Series Supplement, any Intercreditor Agreement or any Liquidity
Facility, to which the Certificateholder of this Pass Through Certificate by
virtue of the acceptance hereof assents and by which such Certificateholder is
bound. The property of the Pass Through Trust includes (i) the Equipment
Certificates held in such Pass Through Trust, (ii) the rights of such Pass
Through Trust under any Intercreditor Agreement (including all monies
receivable in respect of such rights), (iii) all monies receivable under any
Liquidity Facility for such Pass Through Trust, and (iv) funds from time to
time deposited with the Pass Through Trustee in accounts relating to such Pass
Through Trust (the "Trust Property"). Equipment Certificates of each series are
secured by a security interest in (A) an aircraft leased to or, if any of the
Aircraft have been purchased by the Company pursuant to the related
Participation Agreement, owned by the Company and, in the case of a leased
aircraft, an assignment of the rights of the Related Owner Trustee with respect
to such aircraft, including the right to receive rent and other amounts payable
under the related Lease or Indenture with respect to such aircraft or (B) a
collateral account containing the proceeds of the sale of such series of
Equipment Certificates, which shall be invested in Specified Investments
pursuant to the related Indenture. Each of the Pass Through Certificates
represents a Fractional Undivided Interest in the Pass Through Trust and the
Trust Property, and has no rights, benefits or interests in respect of any
other separate trust established pursuant to the terms of the Pass Through
Agreement for any other class of Pass Through Certificates issued pursuant
thereto.
Subject to and in accordance with the terms of the Pass Through
Agreement, the Series Supplement, any Intercreditor Agreement or any Liquidity
Facility, from funds then available to the Pass Through Trustee, there will be
distributed on each ______ and _____ (a "Regular Distribution Date"),
commencing on _______, __, to the Person in whose name this Pass Through
B-A-2
Certificate is registered at the close of business on the 15th day preceding
the applicable Regular Distribution Date, an amount in respect of the Scheduled
Payments on the Equipment Certificates due on such Regular Distribution Date,
equal to the product of the percentage interest in the Pass Through Trust
evidenced by this Pass Through Certificate and an amount equal to the sum of
such Scheduled Payments so received.
Subject to and in accordance with the terms of the Pass Through Agreement,
the Series Supplement and any Intercreditor Agreement, if Special Payments on
the Equipment Certificates are received by the Pass Through Trustee, from funds
then available to the Pass Through Trustee, there shall be distributed on the
applicable Special Distribution Date, to the Person in whose name this Pass
Through Certificate is registered at the close of business on the 15th day
preceding such Special Distribution Date, an amount in respect of such Special
Payments on the Equipment Certificates, equal to the product of the percentage
interest in the Pass Through Trust evidenced by this Pass Through Certificate
and an amount equal to the sum of such Special Payments so received.
If a Distribution Date is not a Business Day, distribution shall be made
on the immediately following Business Day with the same force and effect as if
made on such Distribution Date and no interest shall accrue during the
intervening period. The Special Distribution Date shall be any Business Day on
which a Special Payment is to be distributed.
Distributions on this Pass Through Certificate will be made by the Pass
Through Trustee to the Person entitled thereto, without the presentation or
surrender of this Pass Through Certificate or the making of any notation
hereon. Except as otherwise provided in the Pass Through Agreement and
notwithstanding the above, the final distribution on this Pass Through
Certificate will be made after notice is mailed by the Pass Through Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Pass Through Certificate at the office or agency of the Pass Through
Trustee specified in such notice.
[Any Person who is, or who in acquiring this Pass Through Certificate is
or may be using the assets of, an employee benefit plan subject to Title I of
The Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
an individual retirement account or plan subject to Section 4975 of the Code,
or any trust established under any such plan or account, may acquire or hold
any of the Pass Through Certificates, if such Person determines either that an
administrative or a statutory exemption from the prohibited transaction rules
under Section 406 of ERISA and Section 4975 of the Code is applicable to its
purchase and holding of this Pass Through Certificate or that its purchase and
B-A-3
holding of this Pass Through Certificate will not result in a prohibited
transaction under Section 406 of ERISA and Section 4975 of the Code.]*
THIS PASS THROUGH CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE
Reference is hereby made to the further provisions of this Pass Through
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Pass Through Trustee, by manual signature, this Pass Through Certificate shall
not be entitled to any benefit under the Pass Through Trust or be valid for any
purpose.
--------
* Subject to revision as set forth in Section 6.06 of The Pass Through
Agreement.
B-A-4
IN WITNESS WHEREOF, the Pass Through Trustee has caused this Pass Through
Certificate to be duly executed.
FEDERAL EXPRESS CORPORATION PASS
THROUGH TRUST, SERIES 200__-__
By:
----------------------------------------
as Pass Through Trustee
By:
-----------------------------------
Authorized Signatory
[FORM OF THE PASS THROUGH TRUSTEE'S CERTIFICATE OF
AUTHENTICATION]
Dated:
This is one of the Pass Through Certificates referred to in the
within-mentioned Pass Through Agreement and Series Supplement.
-------------------------------------------
as Pass Through Trustee
By:
--------------------------------
Authorized Signatory
B-A-5
[Reverse of Pass Through Certificate]
The Pass Through Certificates do not represent a direct obligation of, or
an obligation guaranteed by, or an interest in, the Company or the Pass Through
Trustee or any affiliate thereof. The Pass Through Certificates are limited in
right of payment, all as more specifically set forth on the face hereof and in
the Pass Through Agreement, any Intercreditor Agreement, any Liquidity Facility
and the Series Supplement. Subject to the Intercreditor Agreement, all payments
or distributions made to Certificateholders under the Pass Through Agreement
shall be made only from the Trust Property and only to the extent that the Pass
Through Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of the Pass Through
Agreement and the Series Supplement. Each Certificateholder of this Pass
Through Certificate, by its acceptance hereof, agrees that it will look solely
to the income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Pass Through
Agreement, any Intercreditor Agreement, any Liquidity Facility and the Series
Supplement.
In connection with withholding taxes, under certain circumstances the Pass
Through Trustee may retain certain amounts otherwise distributable to a
Certificateholder. The purchase by any Certificateholder of any Pass Through
Certificate constitutes the consent of such Certificateholder to such retention
in accordance with the terms of the Pass Through Agreement.
This Pass Through Certificate does not purport to summarize the Pass
Through Agreement, any Intercreditor Agreement, any Liquidity Facility and the
Series Supplement and reference is made to the Pass Through Agreement, any
Intercreditor Agreement, any Liquidity Facility and the Series Supplement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby. A copy of the Pass Through Agreement, any
Intercreditor Agreement, any Liquidity Facility and the Series Supplement may
be examined by any Certificateholder upon request during normal business hours
at the Principal Corporate Trust Office of the Pass Through Trustee, and at
such other places designated by the Pass Through Trustee.
As of the date of issuance of this Pass Through Certificate, and assuming
that no prepayment or default in respect of payment on the Equipment
Certificates shall occur and assuming there will be no change in the payment
terms of the Equipment Certificates, the aggregate scheduled repayments of
principal on the Equipment Certificates for the Pass Through Trust and the
resulting Pool Factors for the Pass Through Trust after taking into account
each such repayment are set forth below:
B-A-6
Pass Through Trust, 200__-___
Scheduled Principal
Regular Payments on Pool Factor
Distribution Date Equipment Certificates
$ 0.0000000
The Pass Through Agreement, any Intercreditor Agreement, any Liquidity
Facility and the Series Supplement permit, with certain exceptions provided
therein, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Certificateholders under the
Pass Through Trust at any time by the Company and the Pass Through Trustee with
the consent of the Majority In Interest of Certificateholders in the Pass
Through Trust. Any such consent by the Certificateholder of this Pass Through
Certificate shall be conclusive and binding on such Certificateholder and upon
all future Certificateholders of this Pass Through Certificate and of any Pass
Through Certificate issued upon the transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent is made upon this Pass
Through Certificate. The Pass Through Agreement, any Intercreditor Agreement,
any Liquidity Facility and the Series Supplement also permit the amendment
thereof, in certain limited circumstances, without the consent of the
Certificateholders of any of the Pass Through Certificates.
As provided in the Pass Through Agreement and the Series Supplement and
subject to certain limitations set forth therein, the transfer of this Pass
Through Certificate is registrable in the Register upon surrender of this Pass
Through Certificate for registration of transfer to the Pass Through Trustee in
its capacity as Registrar, or by any successor Registrar, duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Pass Through Trustee and the Registrar duly executed by the Certificateholder
hereof or such Certificateholder's attorney duly authorized in writing, and
thereupon one or more new Pass Through Certificates of authorized denominations
evidencing the same aggregate Fractional Undivided Interest in the Pass Through
Trust will be issued to the designated transferee or transferees.
The Pass Through Certificates are issuable only as registered Pass Through
Certificates without coupons in minimum denominations of $1,000 fractional
undivided interests and integral multiples thereof. As provided in the Pass
Through Agreement and the Series Supplement and subject to certain limitations
set forth therein, the Pass Through Certificates are exchangeable for new Pass
Through Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Pass Through Trust, as requested by the
Certificateholder surrendering the same.
B-A-7
No service charge will be made for any such registration of transfer or
exchange, but the Pass Through Trustee may require payment of a sum sufficient
to cover any tax or governmental charge payable in connection therewith.
The Pass Through Trustee, the Registrar, and any agent of the Pass Through
Trustee or the Registrar may treat the person in whose name this Pass Through
Certificate is registered as the owner hereof for all purposes, and neither the
Pass Through Trustee, the Registrar, nor any such agent shall be affected by
any notice to the contrary.
The obligations and responsibilities created by the Pass Through Agreement
and the Series Supplement and the Pass Through Trust created thereby shall
terminate upon the distribution to Certificateholders of all amounts required
to be distributed to them pursuant to the Pass Through Agreement, any
Intercreditor Agreement, any Liquidity Facility and the Series Supplement and
the disposition of all property held as part of the Trust Property.
B-A-8
Schedule I
to
Series Supplement
Federal Express Corporation
Pass Through Trust, 200__-___
Equipment Certificates;
Related Indenture Documents
Equipment Certificates (Federal Express Corporation Trust No. N___ FE):
Interest Rate: ________%
Maturity: _____________
Principal Amount: $____________
Related Indenture Documents:
B-A-9
