Exhibit 4.a.3
CONFORMED COPY
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PASS THROUGH TRUST AGREEMENT
Dated as of May 1, 1997
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
Section of the Act the 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
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
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*Intentionally deleted.
TABLE OF CONTENTS
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Page
RECITALS............................................................. 1
ARTICLE I
DEFINITIONS
ARTICLE II
ISSUANCE OF PASS THROUGH CERTIFICATES;
ACQUISITION OF EQUIPMENT CERTIFICATES
SECTION 2.01. Amount Unlimited; Issuable in Series; Series
Supplements..................................... 12
SECTION 2.02. Acquisition of Equipment Certificates.............. 15
SECTION 2.03. Initial Certificateholders as Grantors............. 18
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......................................... 26
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
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................................ 31
SECTION 5.03. Statements to Certificateholders................... 33
SECTION 5.04. Investment of Special Payment Moneys............... 34
SECTION 5.05. Withholding Taxes.................................. 34
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................................. 35
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................ 37
SECTION 6.06. ERISA.............................................. 38
ARTICLE VII
REMEDIES OF PASS THROUGH TRUSTEE
AND CERTIFICATEHOLDERS
SECTION 7.01. Events of Default.................................. 38
SECTION 7.02. Incidents of Sale of Equipment Certificates........ 40
SECTION 7.03. Pass Through Trustee May Prove Debt................ 41
SECTION 7.04. Remedies Cumulative................................ 42
SECTION 7.05. Suits for Enforcement.............................. 42
SECTION 7.06. Discontinuance of Proceedings...................... 43
SECTION 7.07. Limitations on Suits by Certificateholders......... 43
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...................... 44
SECTION 7.10. Waiver of Past Events of Default................... 45
SECTION 7.11. Notice of Pass Through Defaults.................... 45
ARTICLE VIII
CONCERNING THE PASS THROUGH TRUSTEE
SECTION 8.01. Acceptance by Pass Through Trustee................. 46
SECTION 8.02. Pass Through Trustee's Liens....................... 46
SECTION 8.03. Certain Rights of the Pass Through Trustee......... 47
SECTION 8.04. Pass Through Trustee Not Responsible for Recitals.. 48
SECTION 8.05. Pass Through Trustee and Agents May Hold Pass
Through Certificates; Collections............... 48
SECTION 8.06. Moneys Held by Pass Through Trustee................ 49
SECTION 8.07. Right of Pass Through Trustee to Rely on Officer's
Certificate..................................... 49
SECTION 8.08. Compensation....................................... 49
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....................... 51
SECTION 10.02. Persons Eligible for Appointment as Pass Through
Trustee........................................ 53
SECTION 10.03. Acceptance of Appointment by Successor Trustee.... 53
SECTION 10.04. Merger, Conversion, Consolidation or Succession to
Business of Pass Through Trustee............... 55
SECTION 10.05. Appointment of Separate Pass Through Trustees..... 55
SECTION 10.06. Preferential Claims............................... 57
ARTICLE XI
SUPPLEMENTS AND AMENDMENTS TO THIS
PASS THROUGH AGREEMENT AND OTHER DOCUMENTS
SECTION 11.01. Supplemental Agreements Without Consent of
Certificateholders............................. 58
SECTION 11.02. Supplemental Agreements With Consent of
Certificate-holders............................ 60
SECTION 11.03. Effect of Supplemental Agreements................. 61
SECTION 11.04. Documents to Be Given to Trustee.................. 62
SECTION 11.05. Notation on Pass Through Certificates in Respect of
Supplemental Agreements........................ 62
SECTION 11.06. Trust Indenture Act............................... 63
SECTION 11.07. Revocation and Effect of Consents................. 63
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................ 63
SECTION 12.02. Application by Pass Through Trustee of Funds
Deposited for Payment of Pass Through
Certificates................................... 64
SECTION 12.03. Repayment of Moneys Held by Paying Agent.......... 64
SECTION 12.04. Transfer of Moneys Held by Pass Through
Trustee and Paying Agent Unclaimed for
Two Years and Eleven Months.................... 64
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Capacity in Which Acting.......................... 65
SECTION 13.02. No Legal Title to Trust Property in
Certificateholders............................. 65
SECTION 13.03. Certificates Nonassessable and Fully Paid......... 65
SECTION 13.04. Pass Through Agreement for the Benefit of the
Company, the Pass Through Trustee and the
Certificateholders............................. 65
SECTION 13.05. Limitation on Rights of Certificateholders........ 66
SECTION 13.06. Notices........................................... 66
SECTION 13.07. Officer's Certificate and Opinion of Counsel;
Statements to Be Contained Therein............. 67
SECTION 13.08. Conflict of Any Provision of Pass Through
Agreement with the Trust Indenture Act......... 68
SECTION 13.09. Severability...................................... 68
SECTION 13.10. No Oral Modifications or Continuing Waivers....... 68
SECTION 13.11. Successors and Assigns............................ 68
SECTION 13.12. Headings.......................................... 69
SECTION 13.13. Normal Commercial Relations....................... 69
SECTION 13.14. Governing Law; Counterpart Form................... 69
SECTION 13.15. Distributions Due on Days Other than
Business Days.................................. 69
SECTION 13.16. Registration of Equipment Certificates in Name of
Subordination Agent............................ 69
Exhibit A Form of Pass Through Certificate
Exhibit B Form of Series Supplement
PASS THROUGH TRUST AGREEMENT
PASS THROUGH TRUST AGREEMENT dated as of May 1, 1997, between
FEDERAL EXPRESS CORPORATION, a Delaware corporation (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.
"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.
"Company" means Federal Express Corporation, a Delaware
corporation, and its permitted successors and assigns hereunder.
"Controlling Party" means the Person entitled to act as such
pursuant to the terms of any Intercreditor Agreement.
"Corporate Trust Office" means the corporate trust office of
the Pass Through Trustee in the city in which the Pass Through Trustee's
corporate trust business shall be administered and which the Pass Through
Trustee shall have specified by notice in writing to the Company and the
Certificateholders of each Series.
"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.
"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.
"Depositary" 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.
"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.
"Indenture Default" means, for any Indenture, any event or
condition defined as a "Default" under 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
Depositary 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 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.
"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
(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.
"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 ▇▇▇▇▇'▇ 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, 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 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.
"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 Depositary 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 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 in its
Corporate Trust Office.
"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 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) 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.
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);
(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 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
Depositary 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;
(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:
(a) the Equipment Certificates to be purchased by
such Pass Through Trust, including the period
or periods within which, the price or prices
at which such Certificates may or must be
repaid in whole or in part, by the Company
or, with respect to leased aircraft
certificates, the Related Owner Trustee,
(b) the payment priority of such Equipment
Certificates in relation to any other
Equipment Certificates issued with respect to
the related Aircraft,
(c) any additional security or liquidity
enhancements therefor,
(d) any intercreditor issues between or among the
holders of Equipment Certificates having
different priorities issued by the same Owner
Trustee, and
(e) other specific terms of the Equipment
Certificates during any pre-funding period;
(17) a description of any cross-default or
cross-collateralization provisions in the related Indenture; and
(18) 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. 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 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.
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 an authorized 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 officer of the Pass Through Trustee who signs any of the
Pass Through Certificates subsequently ceases to be such officer 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 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 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
one of its authorized officers, shall be entitled to the benefits of the
related Pass Through Trust or be valid or obligatory for any purpose. Such
certificate 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 Depositary 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 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 Depositary
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 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 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 of the Pass Through Trustee, as evidenced by such officer'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 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
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
Depositary or its nominee, (iii) shall be delivered by the Pass Through
Trustee to the Depositary or pursuant to the Depositary'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 Depositary to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
selected or approved by the Company upon notice to the Pass Through Trustee or
to a nominee of such successor Depositary.
(c) The Depositary 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 Depositary notifies the Company that it
is unwilling or unable to continue as Depositary for such Series or if at any
time the Depositary for such Series shall no longer be eligible under
subsection (c) above, and a successor Depositary 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 Depositary 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 Depositary 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.
(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 Depositary 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 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 Corporate Trust Office of the Pass Through Trustee. The
Registrar shall keep a 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.
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 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 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 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 or in any related Participation 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 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 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 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
(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.
(c) 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 5.02. 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) At such time, if ever, as the Pass Through Certificates
are issued in certificated form, 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:
(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) 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.
SECTION 5.03. Statements to Certificateholders. (a) On each
Regular Distribution Date and Special Distribution Date, the Pass Through
Trustee shall 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 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.
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 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 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 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.
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.
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 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 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 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 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
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 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 delivery 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 his or her purchase money, and, after paying such
purchase money and receiving such receipt, such purchaser or
its 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 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 done 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 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 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 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 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 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 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 or the related Series Supplement, 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:
(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) whenever in the administration of this Agreement or
any Intercreditor Agreement the Pass Through Trustee 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
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
indemnity against such expenses or liabilities as a condition to
proceeding; 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;
(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 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 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 (other than any tax attributable to the Pass Through
Trustee's compensation for serving as such), 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 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.
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;
(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 Through
Trustee were located in another state, or jurisdiction within a state,
within the United States. A tax shall not be an 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 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.
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 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:
(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 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, ▇▇▇▇ 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, ▇▇▇▇ 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 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 other provision contained
herein or in such Series Supplement, Intercreditor Agreement or
Liquidity Facility; or to modify any other provision 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;
(f) 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;
(g) 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;
(h) 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;
(i) 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
(j) 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 within the meaning of Treasury Regulation
Section 301.7701-4.
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
Certificate-holders. 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 within the meaning of Treasury Regulation Section 301.7701-4;
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 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
(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 or in connection with the
exercise of remedies under Article VII.
(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, 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 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 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
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 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 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 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, 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 First Security Bank, National Association, as Pass Through
Trustee, at its office at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(facsimile (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Corporate Trust Department or (ii) if
to the Company, addressed to it at its office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (facsimile (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Vice President
and Treasurer, with a copy to Executive Vice President and General Counsel at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (facsimile (▇▇▇) ▇▇▇-▇▇▇▇), 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
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 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.
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. 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 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 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.
IN WITNESS WHEREOF, the parties hereto have caused this Pass
Through Agreement to be duly executed this 12th day of May, 1997 by their
respective officers 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: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FEDERAL EXPRESS CORPORATION
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Treasurer and
Managing Director - Structured Finance
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.](*)
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(*) This paragraph is required only if the Pass Through Certificates are to
be represented by the Registered Global Certificate.
FEDERAL EXPRESS CORPORATION PASS THROUGH TRUST, 199__ - __
199_ Pass Through Certificate, Series ___
CUSIP ______
Final Regular Distribution Date: _______
evidencing a fractional undivided interest in a pass
through trust, the property of which includes certain
Equipment Certificates.
Certificate No. _______
Applicable interest rate on Equipment Certificates held in
Pass Through Trust, 199__ - _____: ____%.
$___________ 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, 199_-_ (the
"Pass 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 ____________, 199_ (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 199_ Pass
Through Certificates, Series _______." This Pass Through Certificate is issued
under and is subject to the terms, provisions, and conditions of the Pass
Through Agreement, the Series Supplement and any Intercreditor Agreement, 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 certain Equipment Certificates and
all rights of the Pass Through Trust to receive any payments under any
Intercreditor Agreement or Liquidity Facility (the "Trust Property"). Each
series of Equipment Certificates is secured by a security interest in (A) an
aircraft leased to or 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 holding securities purchased with the
proceeds of the sale of such series of Equipment Certificates. The Pass
Through Certificates represent fractional undivided interests in the Pass
Through Trust and the Trust Property, and have 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 series of Pass Through
Certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Pass Through
Agreement, the Series Supplement and any Intercreditor Agreement, 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 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.
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 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 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.](**)
----------
(**) Subject to revision as set forth in Section 6.06 hereof.
This Pass Through Certificate shall be governed by and
construed in accordance with the laws of the State of New York.
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 related Pass
Through Trust or be valid for any purpose.
IN WITNESS WHEREOF, the Pass Through Trustee has caused this
Pass Through Certificate to be duly executed.
FEDERAL EXPRESS CORPORATION
PASS THROUGH TRUST, SERIES 199__-__
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
[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 and the Series
Supplement. 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 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 and the Series Supplement and reference is made to the
Pass Through Agreement 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 may be examined by any
Certificateholder upon request, during normal business hours at the principal
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 the Equipment Certificates
shall occur, 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:
Pass Through Trust, 199__-___
Scheduled Principal
Regular Payments on
Distribution Date Equipment Certificates Pool Factor
$ 0.0000000
The Pass Through Agreement and the Series Supplement permits,
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 and the Series Supplement also permits 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 at the
facilities or agencies maintained by 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 interest 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.
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 and
the Series Supplement and the disposition of all property held as part of the
Trust Property.
Exhibit B
to
Pass Through Agreement
__________________________________________
SERIES SUPPLEMENT 199__-___
Dated __________, 199__
Between
___________________________________
as Pass Through Trustee,
and
FEDERAL EXPRESS CORPORATION
to
PASS THROUGH TRUST AGREEMENT
Dated as of _________, ____
$__________________
Federal Express Corporation
Pass Through Trust, 199__-___
Federal Express Corporation
199__ Pass Through Certificates,
Series ___
__________________________________________
TABLE OF CONTENTS
ARTICLE I
CERTAIN DEFINITIONS
ARTICLE II
DESIGNATIONS; TRUST FORMATION;
ISSUANCE OF PASS THROUGH CERTIFICATES
SECTION 2.01. Designations; Aggregate Amount..................... 4
SECTION 2.02. Declaration of Trust; Authorization................ 5
SECTION 2.03. Issuance of Pass Through Certificates.............. 5
SECTION 2.04. Purchase of Equipment Certificates................. 5
SECTION 2.05. Representations and Warranties of the Company...... 5
SECTION 2.06. The Trustee........................................ 6
SECTION 2.07. Conditions Precedent............................... 6
SECTION 2.08. Acceptance of Appointment of Pass Through Trustee.. 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................................. 6
SECTION 3.02. Record Dates....................................... 7
SECTION 3.03. Certificate Account and Special Payments Account... 7
SECTION 3.04. Form of Pass Through Certificates.................. 7
SECTION 3.05. Indenture Documents................................ 7
SECTION 3.06. Appointment of Authenticating Agent; Paying Agent
and Registrar.................................. 7
SECTION 3.07. Predelivery Funding................................ 8
SECTION 3.08. ERISA.............................................. 8
SECTION 3.09. Registered Global Certificate...................... 8
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Governing Law; Counterpart Form.................... 9
SECTION 4.02. Reports by the Company............................. 9
SECTION 4.03. Modification and Ratification of Pass Through
Agreement...................................... 9
SECTION 4.04. Termination........................................ 9
Exhibit A Form of Pass Through Certificate
SERIES SUPPLEMENT 199__-___
SERIES SUPPLEMENT 199__-___, dated _________, 199__ (this
"Series Supplement"), between FEDERAL EXPRESS CORPORATION, a Delaware
corporation (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, 199__-___, or the
Federal Express Corporation 199__ 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 to be leased by the Owner Trustee
to the 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 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.
"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
_________, 199__ among the Company and ____________________________.
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, 199__-___ (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
199__ 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 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 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.
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 ____________,
199__. 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 Registered Global Certificate 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 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 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.](*)
----------
(*) Subject to revision as set forth in Section 6.06 of The Pass Through
Agreement.
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.
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇, Governor of New York State, living on the
date of this Series Supplement.
IN WITNESS WHEREOF, the parties have caused their names to be
signed hereto by their respective officers thereunto duly authorized, all on
the day and year first above written.
FEDERAL EXPRESS CORPORATION
By: _________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Treasurer and
Managing Director - Structured
Finance
____________________________________________,
as Pass Through Trustee
By: _________________________________________
Name:
Title:
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.](*)
----------
(*) This paragraph is required only if the Pass Through Certificates are to be
represented by the Registered Global Certificate.
FEDERAL EXPRESS CORPORATION PASS THROUGH TRUST, 199__-___
199__ Pass Through Certificate, Series ___
CUSIP _________________
Final Regular Distribution Date: __________, ______
evidencing a fractional undivided interest in a pass through trust,
the property of which includes certain Equipment Certificates.
Certificate No. _______
Applicable interest rate on Equipment Certificates held in
Pass Through Trust, 199__-___: _____%.
$___________ 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, 199__-___ (the
"Pass 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 199__-___ thereto dated
_________, 199__ (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 199__ Pass
Through Certificates, Series ___." This Pass Through Certificate is issued
under and is subject to the terms, provisions, and conditions of the Pass
Through Agreement, the Series Supplement and any Intercreditor Agreement, 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 certain Equipment Certificates and
all rights of the Pass Through Trust to receive payments under the
Intercreditor Agreement and the Liquidity Facility (the "Trust Property").
Each series of Equipment Certificates is secured by a security interest in (A)
an aircraft leased to or 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 holding securities purchased with the proceeds of the
sale of such series of Equipment Certificates. 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 series of Pass Through Certificates
issued pursuant thereto.
Subject to and in accordance with the terms of the Pass Through Agreement,
the Series Supplement and any Intercreditor Agreement, from funds then
available to the Pass Through Trustee, there will be distributed on each
___________ and ___________ (a "Regular Distribution Date"), commencing on
___________, 199__, to the Person in whose name this Pass Through 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.
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
holding of this Pass Through Certificate will not result in a prohibited
transaction under Section 406 of ERISA and Section 4975 of the Code.](**)
----------
(**) Subject to revision as set forth in Section 6.06 of The Pass Through
Agreement.
This Pass Through Certificate shall be governed by and construed in
accordance with the laws of the State of New York.
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.
IN WITNESS WHEREOF, the Pass Through Trustee has caused this Pass Through
Certificate to be duly executed.
FEDERAL EXPRESS CORPORATION
PASS THROUGH TRUST, 199__-___
_______________________________________,
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 the Series Supplement.
_______________________________________,
as Pass Through Trustee
By: ________________________________
Authorized Signatory
[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 and the Series Supplement. 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 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 and the Series Supplement and reference is made to the Pass Through
Agreement 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 may be examined by any
Certificateholder upon request during normal business hours at the principal
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, 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:
Pass Through Trust, 199__-___
Scheduled
Principal
Payments on
Regular Equipment
Distribution Dates Certificates Pool Factor
The Pass Through Agreement 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 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.
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 and the
Series Supplement and the disposition of all property held as part of the
Trust Property.
Schedule I
to
Series Supplement
Federal Express Corporation
Pass Through Trust, 199__-___
Equipment Certificates;
Related Indenture Documents
Equipment Certificates (Federal Express Corporation Trust No. N___ FE):
Interest Rate: ________%
Maturity: _____________
Principal Amount: $____________
Related Indenture Documents: