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EXHIBIT 4(a)(1)
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PASS THROUGH TRUST AGREEMENT 1998-A
Dated as of March 18, 1998
between
UNION TANK CAR COMPANY
and
XXXXXX TRUST AND SAVINGS BANK,
as Pass Through Trustee
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$97,852,000
Union Tank Car Company
1998-A Pass Through Trust
Pass Through Certificates,
Series 1998-A
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This PASS THROUGH TRUST AGREEMENT 1998-A dated as of March 18, 1998, is
made with respect to the formation of the Union Tank Car Company 1998-A Pass
Through Trust, between UNION TANK CAR COMPANY, a Delaware corporation (the
"Company"), and XXXXXX TRUST AND SAVINGS BANK, solely as Pass Through Trustee
and not it its individual capacity.
WITNESSETH:
WHEREAS, it is anticipated that the Owner Trustee, on behalf of the Owner
Participant, will purchase the Equipment (as defined) from the Company;
WHEREAS, it is anticipated that the Owner Trustee will lease the Equipment
to the Company pursuant to the Lease;
WHEREAS, it is anticipated that the Owner Trustee will issue on a
nonrecourse basis Equipment Notes, under the Indenture, in order to finance not
more than 80% of the purchase price to be paid to the Company for such
Equipment;
WHEREAS, subsequent to the date hereof, and pursuant to the terms and
conditions of this Pass Through Trust Agreement and the Participation Agreement,
certain Equipment Notes are to be sold to the Pass Through Trustee, and the Pass
Through Trustee shall purchase such Equipment Notes and shall hold such
Equipment Notes in trust for the benefit of the Certificateholders;
WHEREAS, the Pass Through Trustee, upon execution and delivery of this
Pass Through Trust Agreement, hereby declares the creation of this Pass Through
Trust for the benefit of the Certificateholders, and the initial
Certificateholders as the grantors of the Pass Through Trust, by their
respective acceptances of the Certificates, join in the creation of this Pass
Through Trust with the Pass Through Trustee;
WHEREAS, to facilitate the subsequent sale of certain Equipment Notes to
the Pass Through Trustee and the purchase of such Equipment Notes by the Pass
Through Trustee, the Company has duly authorized the execution and delivery of
this Pass Through Trust Agreement as an "issuer", as such term is defined in and
solely for purposes of the Securities Act of 1933, as amended, of the
Certificates being issued hereunder and as an "obligor", as such term is defined
in and solely for purposes of the Trust Indenture Act of 1939, as amended, with
respect to the Certificates and is undertaking to perform certain administrative
and ministerial duties hereunder and is also undertaking to pay the fees and
expenses of the Pass Through Trustee; and
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WHEREAS, this Pass Through Trust Agreement is subject to the provisions of
the Trust Indenture Act of 1939, as amended, and shall, to the extent
applicable, be governed by such provisions;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
(a) For all purposes of this Pass Through Trust Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(i) the terms used herein that are defined in this Article
have the meanings assigned to them in this Article, and include the plural
as well as the singular;
(ii) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(iii) all references in this Pass Through Trust Agreement to
designated "Articles", "Sections" and other subdivisions are to the
designated Articles, Sections and other subdivisions of this Pass Through
Trust Agreement; and
(iv) the words "herein", "hereof " and "hereunder" and other
words of similar import refer to this Pass Through Trust Agreement as a
whole and not to any particular Article, Section or other subdivision.
(b) For all purposes of this Pass Through Trust Agreement, the
following capitalized terms have the following respective meanings:
"Act," with respect to any Certificateholder, has the meaning
specified in Section 1.4.
"Affiliate" of any Person shall mean any other Person which directly
or indirectly controls, or is controlled by, or is under a common control with,
such Person. The term "control", as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
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"Authorized Agent" means any Paying Agent or Registrar.
"Avoidable Tax" has the meaning specified in Section 7.9(e).
"Book-Entry Certificates" means a beneficial interest in the
Certificates, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 3.9.
"Business Day" means any day other than a Saturday or a Sunday or a
day on which commercial banking institutions or trust companies are authorized
or required by law, regulation or executive order to be closed in New York, New
York, Chicago, Illinois, or so long as any Certificate is outstanding, a city
and state in which the respective Corporate Trust Office of the Owner Trustee,
the Pass Through Trustee, the Indenture Trustee or Paying Agent is located.
"Certificate" means any one of the certificates executed and
authenticated by the Pass Through Trustee, substantially in the form of Exhibit
A hereto.
"Certificate Account" means the account or accounts created and
maintained pursuant to Section 4.1(a).
"Certificateholder" means the Person in whose name a Certificate is
registered in the Register.
"Certificate Owner" means, when used in Section 3.9, the Person who
owns a Book Entry Certificate.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects, directly or indirectly, book-entry transfers and pledges of
securities deposited with the Clearing Agency.
"Closing Date," in respect of any Unit, has the meaning assigned to
that term in the Lease.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument 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.
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"Company" means Union Tank Car Company, a Delaware corporation, or
its successor in interest pursuant to Section 5.2, or any other obligor with
respect to the Certificates (within the meaning of the Trust Indenture Act).
"Corporate Trust Office" means, with respect to the Pass Through
Trustee and the Indenture Trustee, the office of such trustee in the city at
which at any particular time its corporate trust business shall be principally
administered.
"De Minimis Certificate" has the meaning specified in Section 3.1.
"Direction" has the meaning specified in Section 1.4(c).
"Equipment" means all of the Units covered by the Lease.
"Equipment Note" means any one of the Equipment Notes (as defined in
the Indenture) described on Schedule I attached hereto, including any Equipment
Note (as so defined) issued under the Indenture as a replacement or substitution
therefor, held by the Pass Through Trustee.
"Escrow Account" has the meaning specified in Section 2.1(b).
"Escrowed Funds" has the meaning specified in Section 2.1(b).
"Event of Default" means an event described in Section 6.1.
"Fractional Undivided Interest" means the undivided interest in the
Pass Through Trust that is evidenced by an Outstanding Certificate expressed as
a fraction of the total undivided interests in the Pass Through Trust
represented by all Outstanding Certificates.
"Indenture" means the Trust Indenture and Security Agreement (UTC
Trust No. 1998-A), dated March 30, 1998, between the Owner Trustee and the
Indenture Trustee, as such Indenture may be amended or supplemented from time to
time in accordance with its terms. The term "Indenture" includes each Indenture
Supplement entered into pursuant to the terms of the Indenture.
"Indenture Default" means, with respect to the Indenture, any
Indenture Event of Default (as such term is defined in the Indenture).
"Indenture Trustee" means Xxxxxx Trust and Savings Bank, in its
capacity as indenture trustee under the Indenture, and any other Person which
may from time to time be acting as Indenture Trustee in accordance with the
provisions of the Indenture.
"Initial Cut-off Date" means April 30, 1998.
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"Issuance Date" means the date of the issuance of the Certificates.
"Lease" means the Equipment Lease Agreement (UTC Trust No.
1998-A)(L-15) with respect to the Equipment between the Owner Trustee, as the
lessor, and the Company, as the lessee, as such Lease may be amended or
supplemented from time to time in accordance with its respective terms. Such
terms shall include each Lease Supplement entered into pursuant to the terms of
the Lease.
"Lease Event of Default" means, with respect to the Lease, any Event
of Default under the Lease as specified in Section 14 thereof.
"Lease Supplement" has the meaning assigned to that term in the
Lease.
"Letter of Representations" means the agreement among the Company,
the Pass Through Trustee and the initial Clearing Agency substantially in the
form attached hereto as Exhibit B.
"Make-Whole Amount" has the meaning assigned to that term in the
Indenture.
"Note Documents," with respect to any Equipment Note, means the
Indenture, Lease and Participation Agreement.
"Officer's Certificate" means a certificate signed, (a) in the case
of the Company, by (i) the Treasurer, any Assistant Treasurer, the Controller or
any Assistant Controller of such company, signing alone, or (ii) any Vice
President signing together with the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer of such company, or (b) in the case of an
Owner Trustee or an Indenture Trustee, a Responsible Officer of such Owner
Trustee or Indenture Trustee.
"Opinion of Counsel" means a written opinion of legal counsel, who
(i) in the case of counsel for the Company may be (A) a lawyer employed by the
Company, (B) Xxxx, Gerber & Xxxxxxxxx, or (C) such other counsel designated by
the Company and reasonably acceptable to the Pass Through Trustee and (ii) in
the case of the Owner Trustee or the Indenture Trustee, such counsel as may be
designated by any of them whether or not such counsel is an employee of any of
them, and who shall be acceptable to the Pass Through Trustee.
"Outstanding," with respect to Certificates, means, as of the date
of determination, all Certificates theretofore authenticated and delivered under
this Pass Through Trust Agreement, except:
(i) Certificates theretofore canceled by the Registrar
or delivered to the Pass Through Trustee or the Registrar for
cancellation;
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(ii) Certificates for which money in the full amount
required to make the final distribution payment to be made pursuant to
Section 11.1 hereof has been theretofore deposited with the Pass Through
Trustee in trust for the Certificateholders as provided in Section 4.1
pending distribution of such money to the Certificateholders pursuant to
such final distribution payment; and
(iii) Certificates in exchange for or in lieu of which
other Certificates have been authenticated and delivered pursuant to this
Pass Through Trust Agreement.
"Owner Participant" means the "Owner Participant" referred to in the
Participation Agreement and any permitted successor or assign of any such Owner
Participant.
"Owner Trustee," with respect to any Equipment Note or the Indenture
or the Lease, means Wilmington Trust Company, in its individual capacity but
solely as trustee of an owner trust for the benefit of the Owner Participant,
and each other Person which may from time to time be acting as Owner Trustee in
accordance with the provisions of the Note Documents.
"Participation Agreement" means the Participation Agreement (UTC
Trust No. 1998-A), dated as of March 18, 1998, and to which the Pass Through
Trustee, the Owner Trustee, the Indenture Trustee, the Owner Participant, and
the Company are parties, as each such Participation Agreement may be amended or
supplemented from time to time in accordance with its respective terms.
"Pass Through Trust" means the trust created by this Pass Through
Trust Agreement, the estate of which consists of the Trust Property.
"Pass Through Trust Agreement" means this Pass Through Trust
Agreement, as it may be amended from time to time in accordance with the terms
hereof.
"Pass Through Trustee" means the institution executing this Pass
Through Trust Agreement as Pass Through Trustee, or its successor in interest,
and any successor trustee appointed as provided herein.
"Paying Agent" means the paying agent maintained and appointed
pursuant to Section 7.12.
"Permitted Investments" means each of (i) direct obligations of the
United States of America and agencies thereof; (ii) obligations fully guaranteed
by the United States of America; (iii) certificates of deposit issued by, or
bankers' acceptances of, or time deposits with, any bank, trust company or
national banking association incorporated or doing business under the laws of
the United States of America or one of the states thereof having combined
capital and surplus and retained earnings of at least $100,000,000, having
general obligations
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rated at least A1 by Xxxxx'x Investors Service, Inc. or A+ by Standard & Poor's
Corporation (but excluding any new investment as to which there is a public
announcement by the rating agency providing a rating thereon that such rating is
under consideration for a possible downgrade below A1 or A+, as the case may
be), including the Owner Trustee in its individual capacity or the Indenture
Trustee in its individual capacity if such conditions are met; (iv) commercial
paper of any holding company of a bank, trust company or national banking
association described in clause (iii); (v) bearer note deposits with, or
certificates of deposit issued by, or promissory notes of, any subsidiary
incorporated under the laws of Canada (or any province thereof) of any bank,
trust company or national banking association described in clause (iii); (vi)
commercial paper of companies having a rating of A-l/P-l or better assigned to
such commercial paper by Standard & Poor's Corporation or Xxxxx'x Investors
Service, Inc. (or, if neither such organization shall rate such commercial paper
at any time, by any nationally recognized rating organization in the United
States of America); (vii) U.S. dollar-denominated certificates of deposit issued
by, or time deposits with, the European subsidiaries of any bank, trust company
or national banking association described in clause (iii); (viii) Canadian
Treasury Bills fully hedged to U.S. dollars; (ix) bonds, notes or other
obligations of any state of the United States of America, or any political
subdivision of any such state, or any agencies or other instrumentalities of any
such state, including, but not limited to, industrial development bonds,
pollution control revenue bonds, public power bonds, housing bonds, other
revenue bonds or any general obligation bonds; provided that, at the time of
their purchase, such obligations are rated in the highest rating category by
Standard & Poor's Corporation or Xxxxx'x Investors Service, Inc. (or, if neither
such organization shall rate such obligations at such time, by any nationally
recognized rating organization in the United States of America); or (x) bonds or
other debt instruments of any company, if such bonds or other debt instruments,
at the time of their purchase, are rated in the highest rating category by
Standard & Poor's Corporation or Xxxxx'x Investors Service, Inc. (or, if neither
such organization shall rate such obligations at such time, by any nationally
recognized rating organization in the United States of America); provided that
no investment shall be eligible as and included within the definition of the
term "Permitted Investment" unless either (x) the final maturity or date of
return of such investment is equal to one year or less from the date of purchase
thereof, or (y) in the case of any investment referred to in the foregoing
clause (i) or (ii) only, such investment has a final maturity or date of return
greater than one year from the date of purchase thereof and closing prices on a
national securities exchange or bid and asked prices, closing prices or yields
to maturity for such investment are reported in The Wall Street Journal (or if
The Wall Street Journal is not at the time published or ceases to report such
prices, such prices are reported by any other publication of nationally
recognized standing of general circulation in New York City).
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
or government or any agency or political subdivision thereof.
"Pool Balance" means, as of any date, the aggregate unpaid principal
amount of the Equipment Notes held in the Pass Through Trust on such date plus
the amount of the
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principal payments on the Equipment Notes held by the Pass Through Trustee and
not yet distributed plus the amount of any moneys held in the Escrow Account
(other than earnings thereon). 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 the Equipment Notes held in the Pass Through
Trust and distribution thereof to be made on that date.
"Pool Factor" means, as of any date, the quotient (rounded to the
seventh decimal place) computed by dividing (i) the Pool Balance by (ii) the
aggregate original principal amount of the Certificates issued under the Pass
Through Trust. 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 the Equipment Notes held in the Pass Through Trust and
distribution thereof to be made on that date.
"Postponed Notes" means the Equipment Notes as to which a
Postponement Notice shall have been delivered pursuant to Sections 2.1(b) and
(c).
"Postponement Notice" means a certificate of the Company signed by
an officer of the Company (i) identifying the amount of the purchase price of
each Equipment Note and the aggregate purchase price of all such Equipment
Notes, and (ii) indicating that a new Closing Date (which shall be on or prior
to the Initial Cut-off Date in the case of Equipment Notes relating to the
initial Closing, or on or prior to the Subsequent Cut-off Date in the case of
Equipment Notes relating to a subsequent Closing) will be set by subsequent
written notice not less than one Business Day prior to such new Closing Date.
"Record Date" means the Business Day preceding a Regular
Distribution Date or a Special Distribution Date, as applicable; provided,
however, that in the case of a Special Payment with respect to the Initial
Cut-off Date, the Record Date means April 30, 1998 and in the case of a Special
Payment with respect to the Subsequent Cut-off Date, the Record Date means June
15, 1998.
"Register" has the meaning specified in Section 3.4.
"Registered Certificates" has the meaning specified in Section 3.1.
"Registrar" has the meaning specified in Section 3.4.
"Regular Distribution Date" means, with respect to distributions of
Scheduled Payments, January 2 and July 2 of each year, commencing on July 2,
1998 until payment of all the Scheduled Payments to be made under the Equipment
Notes has been made.
"Request" means a request by the Company setting forth the subject
matter of the request accompanied by an Officer's Certificate and an Opinion of
Counsel as provided in Section 1.2 of this Pass Through Trust Agreement.
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"Responsible Officer" means (i) with respect to the initial Pass
Through Trustee or the initial Indenture Trustee, any officer in the Corporate
Trust Office or any other office at which the Pass Through Trustee or Indenture
Trustee conducts corporate trust business; and (ii) with respect to any
successor Pass Through Trustee, successor Indenture Trustee or the Owner
Trustee, the chairman or vice-chairman of the board of directors or trustees,
the chairman or vice-chairman of the executive or standing committee of the
board of directors or trustees, the president, the chairman of the committee on
trust matters, any vice-president, any second vice-president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the comptroller
and any assistant comptroller. Responsible Officer also means, with respect to
any Pass Through Trustee, the Indenture Trustee and the Owner Trustee, any other
officer of the Pass Through Trustee, the Owner Trustee or the Indenture Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be any of the above designated officers, and with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Scheduled Payment" means, with respect to a Regular Distribution
Date, any payment (other than a Special Payment) of interest on or principal of
and interest on an Equipment Note due from the Owner Trustee which issued such
Equipment Note, which payment represents the installment of principal at the
stated maturity of such installment of principal on such Equipment Note, or the
payment of regularly scheduled interest accrued on the unpaid principal amount
of such Equipment Note, or both, to be made on such Regular Distribution Date
pursuant to the terms of such Equipment Note.
"Special Distribution Date" means (i) in the case of prepayments
with respect to a voluntary termination of the Lease, the purchase of any Units
by the Company pursuant to Section 22.1 of the Lease or an ordinary Event of
Loss under the Lease, on a Regular Distribution Date, (ii) in the case of
prepayments with respect to a Multiple Loss under the Lease, a refunding or
refinancing of the Equipment Notes or a purchase of the Equipment by the Company
from an Owner Trustee of a competitor Owner Participant, on any Business Day
following 15 days notice from the Pass Through Trustee to The Depository Trust
Company, (iii) in the case of payments received following a default in respect
of any Equipment Note, on the second day of any month, (iv) in the case of a
Special Payment under Section 2.1(b), May 4, 1998 and (v) in the case of a
Special Payment under Section 2.1(c), June 19, 1998.
"Special Payment" means (i) with respect to an Equipment Note (or
portion thereof), any payment of principal of, Make-Whole Amount, if any, and
interest on such Equipment Note (or portion thereof) resulting from the
prepayment of such Equipment Note (or portion thereof) pursuant to Section 2.10
of the applicable Indenture, (ii) with respect to an Equipment Note, any payment
of principal of and interest (including any interest accruing upon default) on,
or any other amount in respect of, such Equipment Note upon an Indenture Default
in respect thereof, including payments received on account of the purchase by
the applicable Owner Trustee of such Equipment Notes, (iii) the amounts required
to be distributed pursuant
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to the fifth paragraph of Sections 2.1(b) or 2.1(c), or (iv) any proceeds from
the sale of any Equipment Note by the Pass Through Trustee pursuant to Article
VI hereof; and "Special Payments" means all of such Special Payments.
"Special Payments Account" means the account or accounts created and
maintained pursuant to Section 4.1(b).
"Specified Investments" means (i) direct obligations of the United
States of America and agencies thereof for which the full faith and credit of
the United States of America is pledged, (ii) obligations fully guaranteed by
the United States of America, (iii) certificates of deposit issued by, or
bankers' acceptances of, or time deposits (including overnight deposits) with,
any bank, trust company or national banking association incorporated or doing
business under the laws of the United States of America or one of the States
thereof having combined capital and surplus and retained earnings of at least
$500,000,000 (including the Indenture Trustee or Owner Trustee, in their
respective individual capacities, if such conditions are met), (iv) commercial
paper of companies, banks, trust companies or national banking associations
incorporated or doing business under the laws of the United States of America or
one of the States thereof and in each case having a rating of A-l/P-l or better
assigned to such commercial paper by Standard & Poor's Corporation or Xxxxx'x
Investors Service, Inc. (or, if neither such organization shall rate such
commercial paper at any time, by any nationally recognized rating organization
in the United States of America) and (v) repurchase agreements with any
financial institution described in clause (iii) above having a combined capital
and surplus of at least $750,000,000 fully collateralized by obligations of the
type described in clauses (i) through (iv) above; provided, however, that if all
of the above investments are unavailable, the entire amount to be invested may
be used to purchase Federal Funds from an entity described in clause (iii)
above; and provided further that no investment shall be eligible as a "Specified
Investment" unless the final maturity or date of return of such investment
occurs no later than the Subsequent Cut-off Date.
"Subsequent Cut-off Date" means June 15, 1998.
"Trust Indenture Act" means, except as otherwise provided in Section
9.6, the Trust Indenture Act of 1939 as in force at the date as of which this
instrument was executed.
"Trust Property" means the Equipment Notes held as the property of
the Pass Through Trust and all moneys at any time paid thereon and all moneys
due and to become due thereunder, funds from time to time deposited in the
Escrow Account (other than earnings on Specified Investments), the Certificate
Account and the Special Payments Account and any proceeds from the sale by the
Pass Through Trustee pursuant to Article VI hereof of any Equipment Note.
"Trustee's Liens" means any Lien (within the meaning specified in
Appendix A to the Participation Agreement) arising as a result of (a) any claim
against the Pass Through Trustee or Xxxxxx Trust and Savings Bank, in its
individual capacity, respectively, not resulting
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from the actions contemplated by the Operative Agreements (within the meaning
specified in Appendix A to the Participation Agreement), (b) any act or omission
of the Pass Through Trustee or Xxxxxx Trust and Savings Bank, in its individual
capacity, respectively, in violation of or not permitted by any of the terms of
the Operative Agreements, (c) any claim against the Pass Through Trustee or
Xxxxxx Trust and Savings Bank in its individual capacity, respectively, with
respect to Taxes (within the meaning specified in Appendix A to the
Participation Agreement) or Transaction Costs (within the meaning specified in
Appendix A to the Participation Agreement) against which the Company is not
required to indemnify the Pass Through Trustee, Xxxxxx Trust and Savings Bank in
its individual capacity, pursuant to the Participation Agreement or (d) any
claim arising out of any transfer by the Pass Through Trustee, of all or any
portion of its interests in the Equipment, the Trust Estate or the Operative
Agreements other than the transfer of title to or possession of any Equipment by
the Pass Through Trustee pursuant to and in accordance with the Indenture or
pursuant to the exercise of the remedies set forth in the Lease; provided,
however, that any Trustee Lien which is attributable solely to the Pass Through
Trustee or Xxxxxx Trust and Savings Bank in its individual capacity and would
otherwise constitute a Trustee Lien shall not constitute a Trustee Lien so long
as (i) the existence of such Trustee Lien poses no material risk of the sale,
forfeiture or loss of any Unit or any interest therein, including Equipment
Notes, (ii) the existence of such Trustee Lien does not interfere in any way
with the quiet enjoyment of any Unit by the Company, as lessee and (iii) the
Pass Through Trustee or Xxxxxx Trust and Savings Bank in its individual
capacity, is diligently contesting such Trustee Lien by appropriate proceedings.
"Unit" has the meaning assigned to that term in the Lease.
SECTION 1.2. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Pass Through Trustee to take any
action under any provision of this Pass Through Trust Agreement, the Company
shall furnish to the Pass Through Trustee an Officer's Certificate stating that,
in the opinion of the signers, all conditions precedent, if any, provided for in
this Pass Through Trust Agreement relating to the proposed action have been
complied with and 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 request as to which the furnishing
of such documents is specifically required by any provision of this Pass Through
Trust Agreement relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Pass Through Trust Agreement (other
than a certificate provided pursuant to Section 8.4(d)) shall include:
(i) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
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(ii) 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 used;
(iii) a statement that, in the opinion of each such
individual, he or she has made such examination or investigation as
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
(iv) a statement as to whether or not, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 1.3. Form of Documents Delivered to Pass Through Trustee. In
any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any Opinion of Counsel stated to be based on the opinion of other
counsel shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Pass Through Trust Agreement, they may, but need not, be
consolidated and form one instrument.
SECTION 1.4. Acts of Certificateholders.
(a) Any direction, consent, waiver or other action provided by this
Pass Through Trust Agreement to be given or taken by Certificateholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Certificateholders in person or by an agent duly appointed
in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Pass Through Trustee and, where it is hereby expressly required, to the Company
or the Indenture Trustee. Such instrument or instrument (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Certificateholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Pass Through Trust Agreement and
conclusive in favor of the Pass Through Trustee, the Company and the Indenture
Trustee, if made in the manner provided in this Section.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instrument acknowledged to him
the execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or such other officer and where such execution is by
an officer of a corporation or association or a member of a partnership, on
behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable manner
which the Pass Through Trustee deems sufficient. In the absence of bad faith on
the part of the Pass Through Trustee, an Officer's Certificate may be deemed to
be conclusively proved.
(c) In determining whether the Certificateholders of the requisite
Fractional Undivided Interests of Certificates Outstanding have given any
direction, consent or waiver (a "Direction"), under this Pass Through Trust
Agreement, Certificates owned by the Company, the Owner Trustee, the Owner
Participant or any Affiliate of any such Person shall be disregarded and deemed
not to be Outstanding under this Pass Through Trust Agreement for purposes of
any such determination. In determining whether the Pass Through Trustee shall be
protected in relying upon any such Direction, only Certificates which the Pass
Through Trustee knows to be so owned shall be so disregarded. Notwithstanding
the foregoing, (i) if any such Person owns 100% of the Certificates Outstanding,
such Certificates shall not be so disregarded as aforesaid, and (ii) if any
amount of Certificates so owned by any such Person have been pledged in good
faith, such Certificates shall not be disregarded as aforesaid if the pledgee
establishes to the satisfaction of the Pass Through Trustee the pledgee's right
so to act with respect to such Certificates and that the pledgee is not the
Company, the Owner Trustee, the Pass Through Trustee, the Owner Participant or
any Affiliate of any such Person.
(d) The Company may at its option by delivery of an Officer's
Certificate to the Pass Through Trustee set a record date to determine the
Certificateholders entitled to give any consent, request, demand, authorization,
direction, notice, waiver or other Act. Notwithstanding Section 316(c) of the
Trust Indenture Act, such record date shall be the record date specified in such
Officer's Certificate which shall be a date not more than 30 nor less than 15
days prior to the first solicitation of Certificateholders in connection
therewith. If such a record date is fixed, such consent, request, demand,
authorization, direction, notice, waiver or other Act may be given before or
after such record date, but only the Certificateholders of record at the close
of business on such record date shall be deemed to be Certificateholders for the
purposes of determining whether Certificateholders of the requisite proportion
of Outstanding Certificates have authorized or agreed or consented to such
consent, request, demand, authorization, direction, notice, waiver or other Act,
and for that purpose the Outstanding Certificates shall be computed as of such
record date; provided that no such consent, request, demand, authorization,
direction, notice, waiver or other act by the Certificateholders on such record
date shall be deemed effective unless it shall become
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effective pursuant to the provisions of this Agreement not later than one year
after the record date.
(e) Any direction, consent, waiver or other action by the
Certificateholder of any Certificate shall bind the Certificateholder of every
Certificate issued upon the transfer thereof or in exchange thereof or in lieu
thereof, whether or not notation of such action is made upon such Certificate.
(f) Except as otherwise provided in Section 1.4(c), Certificates
owned by or pledged to any Person shall have an equal and proportionate benefit
under the provisions of this Pass Through Trust Agreement, without preference,
priority, or distinction as among all of the Certificates.
ARTICLE II
ACQUISITION OF EQUIPMENT NOTES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.1. Issuance of Certificates; Acquisition of Equipment
Notes.
(a) Upon request of the Company, the Pass Through Trustee shall
execute, authenticate and deliver Certificates with an aggregate principal
amount equaling the aggregate principal amount of the Equipment Notes
anticipated to be purchased by the Pass Through Trustee pursuant to the
Participation Agreement, and evidencing the entire ownership of the Pass Through
Trust. The Pass Through Trustee, not in its individual capacity but solely as
Pass Through Trustee, shall issue and sell such 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 Notes and, prior to the Initial Cut-off Date and Subsequent
Cut-off Date, as the case may be, upon the written request of the Company, the
Pass Through Trustee shall purchase, pursuant to the terms and conditions of the
Participation Agreement, such Equipment Notes at a purchase price equal to the
principal amount thereof. Except as provided in Sections 3.4 and 3.5 hereof, the
Pass Through Trustee shall not execute, authenticate or deliver Certificates in
excess of the aggregate amount specified in this paragraph. The provisions of
this Subsection (a) are subject to the provisions of Subsection (b) below.
(b) The Pass Through Trustee shall postpone the purchase of the
Equipment Notes (the "Postponed Notes") and shall promptly deposit into an
escrow account (the "Escrow Account") the proceeds derived from the sale of the
Certificates (the "Escrowed Funds"). The Escrowed Funds so deposited into the
Escrow Account shall be invested by the Pass Through Trustee at the written
direction and risk of, and for the benefit of, the Company in Specified
Investments maturing (i) no later than the Initial Cut-off Date or (ii) if at
least $50,000,000 in aggregate principal amount of Equipment Notes has been
purchased by the Pass Through
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Trustee prior to the Initial Cut-off Date, no later than the Subsequent Cut-off
Date or (iii) if the Company has given notice to the Pass Through Trustee that
any Postponed Notes will not be issued, on the Business Day immediately
preceding the applicable Special Distribution Date, if such investments are
reasonably available for purchase. The Pass Through Trustee shall make
withdrawals from the Escrow Account only as provided in this Pass Through Trust
Agreement. An account statement delivered by the Pass Through Trustee to the
Company shall be deemed written confirmation by the Company that the investment
transactions identified therein accurately reflect the investment directions
given to the Pass Through Trustee by the Company, unless the Company notifies
the Pass Through Trustee in writing to the contrary within thirty (30) days of
receipt of such statement.
The Pass Through Trustee shall hold all Specified Investments until
the maturity thereof and will not sell or otherwise transfer such Specified
Investments. If Specified Investments held in the Escrow Account mature prior to
the Initial Cut-off Date, and, if applicable, the Subsequent Cut-off Date, any
proceeds received on the maturity of such Specified Investments (other than any
earnings thereon) shall be reinvested by the Pass Through Trustee at the written
direction and risk of, and for the benefit of, the Company in Specified
Investments maturing (i) no later than the Initial Cut-off Date or (ii) if at
least $50,000,000 in aggregate principal amount of Equipment Notes has been
purchased by the Pass Through Trustee prior to the Initial Cut-off Date, no
later than the Subsequent Cut-off Date or (iii) if the Company has given notice
to the Pass Through Trustee that any Postponed Notes will not be issued, on the
Business Day immediately preceding the applicable Special Distribution Date, if
such investments are reasonably available for purchase.
Any earnings on Specified Investments received from time to time by
the Pass Through Trustee shall be promptly distributed to the Company to an
account specified in writing by the Company. The Company shall pay to the Pass
Through Trustee for deposit to the Escrow Account an amount equal to any losses
on Specified Investments as incurred.
On or prior to the Initial Cut-off Date, upon the written request of
the Company and the satisfaction of the closing conditions specified in the
Participation Agreement, the Pass Through Trustee shall purchase not less than
$50,000,000 in aggregate principal amount of the Postponed Notes with the
Escrowed Funds. The purchase price shall equal the principal amount of the
Postponed Notes so purchased.
If at least $50,000,000 in aggregate principal amount of Equipment
Notes have not been purchased by the Pass Through Trustee prior to the Initial
Cut-off Date, the Company shall pay to the Pass Through Trustee on the Initial
Cut-off Date for deposit in the Special Payments Account, in immediately
available funds, an amount equal to the interest that would have accrued on the
Postponed Notes at a rate or rates equal to the interest rate or rates
applicable to the Certificates issued under the Pass Through Trust from the
Issuance Date to, but not including, May 4, 1998. In such event, on the Initial
Cut-off Date, the Pass Through Trustee shall transfer the Escrowed Funds and the
amount paid by the Company under this paragraph to the Special Payments Account
for distribution as a Special Payment in accordance
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with the provisions hereof. If the Pass Through Trustee has purchased at least
$50,000,000 in aggregate principal amount of Equipment Notes prior to the
Initial Cut-off Date, unless the Company directs the Pass Through Trustee that
no additional Equipment Notes will be purchased, the balance of the Escrowed
Funds will be held by the Pass Through Trustee for the purchase of Equipment
Notes pursuant to the fourth paragraph of Section 2.1(c) or distribution
pursuant to the fifth paragraph of Section 2.1(c).
(c) Notwithstanding the foregoing Subsection (b), with respect to
amounts received by the Pass Through Trustee for the purchase of Equipment Notes
to be issued pursuant to the Participation Agreement after the Initial Cut-off
Date, and upon receipt by the Pass Through Trustee of a Postponement Notice to
such effect, the Pass Through Trustee shall retain in the Escrow Account an
amount equal to the purchase price of such Equipment Notes. The Escrowed Funds
so deposited into the Escrow Account shall be invested by the Pass Through
Trustee at the written direction and risk of, and for the benefit of, the
Company in Specified Investments maturing (i) no later than the Subsequent
Cut-off Date or (ii) if the Company has given notice to the Pass Through Trustee
that the aforementioned Equipment Notes will not be issued, on June 19, 1998, if
such investments are reasonably available for purchase. The Pass Through Trustee
shall make withdrawals from the Escrow Account only as provided in this Pass
Through Trust Agreement. An account statement delivered by the Pass Through
Trustee to the Company shall be deemed written confirmation by the Company that
the investment transactions identified therein accurately reflect the investment
directions given to the Pass Through Trustee by the Company, unless the Company
notifies the Pass Through Trustee in writing to the contrary within thirty (30)
days of receipt of such statement.
The Pass Through Trustee shall hold all Specified Investments until the
maturity thereof and will not sell or otherwise transfer such Specified
Investments. If Specified Investments held in the Escrow Account mature prior to
the Subsequent Cut-off Date, any proceeds received on the maturity of such
Specified Investments (other than any earnings thereon) shall be reinvested by
the Pass Through Trustee at the written direction and risk of, and for the
benefit of, the Company in Specified Investments maturing (i) no later than the
Subsequent Cut-off Date or (ii) if the Company has given notice to the Pass
Through Trustee that the Postponed Notes will not be issued, on the Business Day
immediately preceding the applicable Special Distribution Date, if such
investments are reasonably available for purchase.
Any earnings on Specified Investments received from time to time by the
Pass Through Trustee shall be promptly distributed to the Company to an account
specified in writing by the Company. The Company shall pay to the Pass Through
Trustee for deposit to the Escrow Account an amount equal to any losses on
Specified Investments as incurred.
On or prior to the Subsequent Cut-off Date, upon the written request of
the Company and the satisfaction of the closing conditions specified in the
Participation Agreement, the Pass Through Trustee shall purchase the applicable
Equipment Notes with the Escrowed Funds. The purchase price shall equal the
principal amount of such Postponed Notes.
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If any of the applicable Equipment Notes will not be issued on or prior to
the Subsequent Cut-off Date for any reason, the Company shall so notify the Pass
Through Trustee and the Company shall pay to the Pass Through Trustee on the
Subsequent Cut-off Date for deposit in the Special Payments Account, in
immediately available funds, an amount equal to the interest that would have
accrued on such unissued Equipment Notes at a rate equal to the interest rate
applicable to the Certificates issued under the Pass Through Trust from the
Issuance Date to, but not including, June 19, 1998 and the Pass Through Trustee
shall transfer an amount equal to that amount of Escrowed Funds that would have
been used to purchase such unissued Equipment Notes and the amount paid by the
Company under this paragraph to the Special Payments Account for distribution as
a Special Payment in accordance with the provisions hereof. If on or prior to
the Subsequent Cut-off Date the Pass Through Trustee has purchased $97,852,000
in aggregate principal amount of Equipment Notes, then the Company shall pay to
the Pass Through Trustee on July 2, 1998, for deposit in the Certificate
Account, in immediately available funds, an amount equal to the interest that
would have accrued on each Equipment Note, at a rate equal to the interest rate
applicable to the Certificates issued under the Pass Through Trust, from the
Issuance Date to, but not including, the date that such Equipment Note was
purchased by the Pass Through Trustee, and the Pass Through Trustee shall
transfer such amount paid by the Company to the Certificate Account for
distribution as a Regular Distribution on July 2, 1998 in accordance with the
provisions of Section 4.2 hereof.
SECTION 2.2. Declaration of Trust; Acceptance By Pass Through
Trustee. The Pass Through Trustee, upon the execution and delivery of this Pass
Through Trust Agreement, acknowledges its acceptance of all right, title, and
interest in and to the Equipment Notes acquired pursuant to Section 2.1 hereof
and the Participation Agreement, and declares that the Pass Through Trustee
holds and will hold such right, title, and interest, together with all other
property constituting the Trust Property, for the benefit of all present and
future Certificateholders, upon the trusts herein set forth. By its payment for
and acceptance of each Certificate issued to it hereunder, each initial
Certificateholder as grantor of the Trust thereby joins in the creation and
declaration of the Trust.
SECTION 2.3. Limitation of Powers. The Pass Through Trust is
constituted solely for the purpose of making the investment in the Equipment
Notes, and, except as set forth herein, the Pass Through Trustee is not
authorized or empowered to acquire any other investments or engage in any other
activities and, in particular, the Pass Through Trustee is not authorized or
empowered to do anything that would cause the Pass Through Trust to fail to
qualify as a "grantor trust" for federal income tax purposes (including as
subject to this restriction, acquiring any Equipment (as defined in the
Indenture) by bidding the Equipment Notes or otherwise, or taking any action
with respect to any such Equipment once acquired).
SECTION 2.4. Sale of Equipment Notes Under Certain Circumstances. If
the Company elects, in accordance with Section 10.2 of the Participation
Agreement, to refund or refinance Equipment Notes, the Pass Through Trustee
shall, upon satisfaction of the conditions set forth in Section 10.2 of the
Participation Agreement, transfer such Equipment Notes to the
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Person designated by the Company and will take any other action reasonably
required to effect such refunding.
ARTICLE III
THE CERTIFICATES
SECTION 3.1. Form, Denomination and Execution of Certificates. The
Certificates shall be issued in fully registered form without coupons and shall
be substantially in the form attached hereto as Exhibit A, with such omissions,
variations and insertions as are permitted by this Pass Through Trust Agreement,
and may have such letters, numbers or other marks of identification and such
legends or endorsements printed, lithographed, typewritten or engraved thereon,
as may be required to comply with the rules of any securities exchange on which
the Certificates may be listed or to conform to any usage in respect thereof, or
as may, consistently herewith, be prescribed by the Pass Through Trustee or by
the officer executing such Certificates, such determination by such officer to
be evidenced by his or her signing of the Certificates.
Except as provided in Section 3.9, the definitive Certificates (the
"Registered Certificates") shall be printed, lithographed, typewritten or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Certificates may be listed, all as determined by the officer executing such
Certificates, as evidenced by his execution of such Certificates.
The Certificates shall be issued in minimum denominations of $1,000
or any integral multiple of $1,000 in excess thereof, except that one
Certificate may be issued in a denomination of less than $1,000 (the "De Minimis
Certificate").
The Certificates shall be executed on behalf of the Pass Through
Trustee by manual or facsimile signature of a Responsible Officer of the Pass
Through Trustee. Certificates bearing the manual or facsimile signature of an
individual who was, at the time when such signature was affixed, authorized to
sign on behalf of the Pass Through Trustee shall be valid and binding
obligations of the Pass Through Trustee, notwithstanding that such individual
has ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such office at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Pass Through Trust
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form set forth in Exhibit A
hereto executed by the Pass Through Trustee by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
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SECTION 3.2. Authentication of Certificates. The Pass Through
Trustee shall duly authenticate and deliver Certificates in authorized
denominations equaling in the aggregate the aggregate principal amount of the
Equipment Notes to be purchased by the Pass Through Trustee pursuant to the
Participation Agreement, and evidencing the entire ownership of the Trust.
SECTION 3.3. Temporary Certificates. Pending the preparation of
Registered Certificates, the Pass Through Trustee may execute, authenticate and
deliver temporary Certificates which are printed, lithographed, typewritten, or
otherwise produced, in any denomination, containing substantially the same terms
and provisions as set forth in Exhibit A, except for such appropriate
insertions, omissions, substitutions and other variations relating to their
temporary nature as the officer executing such temporary Certificates may
determine, as evidenced by their execution of such temporary Certificates.
The Company will cause Registered Certificates to be prepared
without unreasonable delay after such Registered Certificates are required to be
issued pursuant to Section 3.9(d). After the preparation of Registered
Certificates, the temporary Certificates shall be exchangeable for Registered
Certificates upon surrender of the temporary Certificates at the Corporate Trust
Office of the Pass Through Trustee, or at the office or agency of the Pass
Through Trustee maintained in accordance with Section 7.12, without charge to
the holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Pass Through Trustee shall execute, authenticate and deliver
in exchange therefor Registered Certificates of authorized denominations of a
like aggregate Fractional Undivided Interest; shall destroy any such temporary
Certificate(s) theretofore delivered and exchanged; and shall certify, in
writing, to the Company such destruction. Until so exchanged, such temporary
Certificates shall in all respects be entitled to the same benefits under this
Pass Through Trust Agreement as Registered Certificates.
SECTION 3.4. Registration of Transfer and Exchange of Certificates.
The Pass Through Trustee shall cause to be kept at the Corporate Trust Office or
the office or agency to be maintained by it in accordance with the provisions of
Section 7.12 a register (the "Register") in which, subject to such reasonable
regulations as it may prescribe, the Pass Through Trustee shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. The Pass Through Trustee shall initially be the registrar (the
"Registrar") for the purpose of registering Certificates and transfers and
exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate at
the Corporate Trust Office or such other office or agency, the Pass Through
Trustee shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Fractional Undivided Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of authorized denominations of a like aggregate
Fractional Undivided Interest,
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upon surrender of the Certificates to be exchanged at any such office or agency.
Whenever any Certificates are so surrendered for exchange, the Pass Through
Trustee shall execute, authenticate and deliver the Certificates that the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for registration of transfer or exchange shall be 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 thereof or its attorney duly authorized in writing.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Pass Through
Trustee shall require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
All Certificates surrendered for registration of transfer and
exchange shall be canceled and subsequently destroyed by the Pass Through
Trustee. The Pass Through Trustee shall provide the Company with written
certification as to the destruction of all such Certificates.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Registrar, or the Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (b) there is delivered to the Registrar and the Pass Through
Trustee such security, indemnity or bond, as may be required by them to save
each of them harmless, then, in the absence of notice to the Registrar or the
Pass Through Trustee that such Certificate has been acquired by a bona fide
purchaser, the Pass Through Trustee shall execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like Fractional Undivided Interest with the
same final Regular Distribution Date. In connection with the issuance of any new
Certificate under this Section 3.5, the Pass Through Trustee shall require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Pass Through Trustee and the Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section 3.5 shall constitute
conclusive evidence of the appropriate Fractional Undivided Interest in the Pass
Through Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 3.6. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Pass Through Trustee, the
Registrar, and any Paying Agent of the Pass Through Trustee may treat the person
in whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 4.2 and for all other
purposes whatsoever, and neither the Pass Through Trustee, the Registrar, nor
any Paying Agent of the Pass Through Trustee shall be affected by any notice to
the contrary.
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SECTION 3.7. Cancellation. All Certificates surrendered for payment
or transfer or exchange shall, if surrendered to any Person party hereto other
than the Registrar, be delivered to the Registrar for cancellation. No
Certificates shall be authenticated in lieu of or in exchange for any
Certificates canceled as provided in this Section, except as expressly permitted
by this Pass Through Trust Agreement. All canceled Certificates held by the
Registrar shall be destroyed and a certification of their destruction delivered
to the Pass Through Trustee and the Company.
SECTION 3.8. Limitation of Liability for Payments. All payments or
distributions made to Certificateholders under this Pass Through Trust 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 Article IV of this Pass
Through Trust Agreement. Each Certificateholder, by its acceptance of a
Certificate, agrees that it will look solely to the income and proceeds from the
Trust Property to the extent available for distribution to the Certificateholder
thereof as provided in this Pass Through Trust Agreement.
SECTION 3.9. Book-Entry and Registered Certificates.
(a) Except for the De Minimis Certificate (if any), the Certificates
may be issued in the form of one or more typewritten Certificates representing
the Book-Entry Certificates, to be delivered to The Depository Trust Company,
the initial Clearing Agency, by, or on behalf of, the Certificate Owners. In
such case, the Certificates delivered to The Depository Trust Company shall
initially be registered on the Register in the name of Cede & Co., the nominee
of the initial Clearing Agency, and no Certificate Owner will receive a
Registered Certificate representing such Certificate Owner's interest in the
Certificates, except as provided above and in Subsection (d) below. Except with
respect to the De Minimis Certificate (if any), unless and until Registered
Certificates have been issued pursuant to Subsection (d) below:
(i) the provisions of this Section 3.9 shall be in full force
and effect;
(ii) the Company, the Paying Agent, the Registrar and the Pass
Through Trustee may deal with the Clearing Agency for all purposes
(including the making of distributions on the Certificates) as the
authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.9
conflict with any other provisions of this Pass Through Trust Agreement,
the provisions of this Section 3.9 shall control;
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Certificate Owners and the Clearing Agency
Participants; and until
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Registered Certificates are issued pursuant to Subsection (d) below, the
Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit distributions of principal and
interest and Make-Whole Amount, if any, on the Certificates to such
Clearing Agency Participants; and
(v) whenever this Pass Through Trust Agreement requires or
permits actions to be taken based upon instructions or directions of
Certificateholders holding Certificates evidencing a specified percentage
of the Fractional Undivided Interests, the Clearing Agency shall be deemed
to represent such percentage only to the extent that it has received
instructions to such effect from Certificate Owners and/or Clearing Agency
Participants owning or representing, respectively, such required
percentage of the beneficial interest in Certificates and has delivered
such instructions to the Pass Through Trustee. The Pass Through Trustee
shall have no obligation to determine whether the Clearing Agency has in
fact received any such instructions.
(b) Except with respect to the De Minimis Certificate (if any),
whenever notice or other communication to the Certificateholders is required
under this Pass Through Trust Agreement, unless and until Registered
Certificates shall have been issued pursuant to Subsection (d) below, the Pass
Through Trustee shall give all such notices and communications specified herein
to be given to Certificateholders to the Clearing Agency and/or the Clearing
Agency Participants, and shall make available additional copies as requested by
such Clearing Agency Participants.
(c) Unless and until Registered Certificates are issued pursuant to
Subsection (d) below, on the Record Date prior to each Regular Distribution Date
and Special Distribution Date, the Pass Through Trustee will request from the
Clearing Agency a Securities Position Listing setting forth the names of all
Clearing Agency Participants reflected on the Clearing Agency's books as holding
interests in the Certificates on such Record Date. The Pass Through Trustee will
mail to each such Clearing Agency Participant the statements described in
Section 4.3 hereof.
(d) If (i) the Company advises the Pass Through Trustee in writing
that the Clearing Agency is no longer willing or able to properly discharge its
responsibilities and the Pass Through Trustee or the Company is unable to locate
a qualified successor, (ii) the Company, at its option, advises the Pass Through
Trustee in writing that it elects to terminate the book-entry system through the
Clearing Agency or (iii) after the occurrence of an Event of Default,
Certificate Owners of Book-Entry Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Pass Through
Trust, by act of such Certificate Owners delivered to the Company and the Pass
Through Trustee, advise the Pass Through Trustee and the Clearing Agency through
the Clearing Agency Participants in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best interests
of the Certificate Owners, then the Pass Through Trustee shall notify all
Certificate Owners, through the Clearing Agency, of the occurrence of any such
event and of the availability of Registered Certificates. Upon surrender to the
Pass Through Trustee of all
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the Certificates held by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency for registration of Registered
Certificates in the names of Certificate Owners, the Pass Through Trustee shall
issue and deliver the Registered Certificates in accordance with the
instructions of the Clearing Agency. Upon the issuance of Registered
Certificates pursuant to this Section 3.9(d), the Record Date with respect to
such Registered Certificates shall be the fifth Business Day preceding a Regular
Distribution Date or Special Distribution Date, as applicable. Neither the
Company, the Registrar, the Paying Agent nor the Pass Through Trustee shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such registration instructions. Upon
the issuance of Registered Certificates, the Pass Through Trustee shall
recognize the Persons in whose name the Registered Certificates are registered
as the Certificateholders hereunder. Neither the Company nor the Pass Through
Trustee shall be liable if the Pass Through Trustee or the Company is unable to
locate a qualified successor Clearing Agency.
(e) The Pass Through Trustee shall enter into the Letter of
Representations and fulfill its responsibilities thereunder.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
SECTION 4.1. Certificate Account and Special Payments Account.
(a) The Pass Through Trustee shall establish and maintain on behalf
of the Certificateholders the Certificate Account as one or more accounts, which
shall be non-interest bearing accounts. The Pass Through Trustee shall hold the
Certificate Account in trust for the benefit of the Certificateholders, and
shall make or permit withdrawals therefrom only as provided in this Pass Through
Trust Agreement. On each day when a Scheduled Payment is made under the
Indenture to the Pass Through Trustee, as holder of the Equipment Notes issued
under such Indenture, the Pass Through Trustee upon receipt shall immediately
deposit the aggregate amount of such Scheduled Payment in the Certificate
Account.
(b) The Pass Through Trustee shall establish and maintain on behalf
of the Certificateholders the Special Payments Account as one or more accounts,
which shall be non-interest bearing except as provided in Section 4.4. The Pass
Through Trustee shall hold the Special Payments Account in trust for the benefit
of the Certificateholders, and shall make or permit withdrawals therefrom only
as provided in this Pass Through Trust Agreement. On each day when one or more
Special Payments (other than a Special Payment that represents the proceeds of
any sale pursuant to Article VI by the Pass Through Trustee of an Equipment
Note) are made under the Indenture to the Pass Through Trustee, as holder of the
Equipment Notes issued under the Indenture, the Pass Through Trustee upon
receipt shall immediately deposit the aggregate amounts of such Special Payments
in the Special Payments Account. On
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the day the Company makes the payment to the Pass Through Trustee described in
the fifth paragraph of Sections 2.1(b) or 2.1(c), the Pass Through Trustee upon
receipt shall immediately deposit the aggregate amount thereof in the
Certificate Account. Upon the sale of any Equipment Note by the Pass Through
Trustee pursuant to Article VI and the realization of any proceeds thereof, the
Pass Through Trustee shall deposit the aggregate amount of such proceeds as a
Special Payment in the Special Payments Account.
(c) The Pass Through Trustee shall present to the Indenture Trustee
to which an Equipment Note relates such Equipment Note on the date of its stated
final maturity, or in the case of any Equipment Note which is to be prepaid in
whole pursuant to the Indenture, on the applicable prepayment date under the
Indenture.
SECTION 4.2. Distribution from Certificate Account and Special
Payments Account.
(a) On each Regular Distribution Date or as soon thereafter as the
Pass Through Trustee has confirmed receipt of the payment of the Scheduled
Payments due with respect to the Equipment Notes on such date, the Pass Through
Trustee shall distribute to the Certificateholders of the Pass Through Trust out
of the Certificate Account the entire amount deposited therein pursuant to
Section 4.1(a). There shall be so distributed to each Certificateholder of
record on the Record Date with respect to such Regular Distribution Date (other
than as provided in Section 11.1 concerning the final distribution) by check
mailed to such Certificateholder at the address appearing in the Register, such
Certificateholder's pro rata share (based on the aggregate Fractional Undivided
Interest held by such Certificateholder) of the aggregate amount in the
Certificate Account; provided, however, that prior to the time that any
Certificates are issued in the form of Registered Certificates, each
Certificateholder may request in writing that such amounts be distributed by
wire transfer of immediately available funds to an account specified by such
Certificateholder. If a Scheduled Payment is not received by the Pass Through
Trustee on a Regular Distribution Date but is received on a later date, it shall
be distributed on the date received in the manner described in the preceding
sentence to the Certificateholders of record on the Record Date with respect to
such Regular Distribution Date.
(b) On each Special Distribution Date with respect to any Special
Payment or as soon thereafter as the Pass Through Trustee has confirmed receipt
of the Special Payments due on the Equipment Notes or realized upon the sale of
any Equipment Note, the Pass Through Trustee shall distribute out of the Special
Payments Account the entire amount deposited therein pursuant to Section 4.1(b)
of such Special Payment. There shall be so distributed to each Certificateholder
of record on the Record Date with respect to such Special Distribution Date
(other than as provided in Section 11.1 concerning the final distribution) by
check mailed to such Certificateholder at the address appearing in the Register,
such Certificateholder's pro rata share (based on the aggregate Fractional
Undivided Interest held by such Certificateholder) of the aggregate amount in
the Special Payments Account on account of such Special Payment; provided,
however, that prior to the time that any Certificates are issued in the form of
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Registered Certificates, each Certificateholder may request in writing that such
amount be distributed by wire transfer of immediately available funds to an
account specified by such Certificateholder.
(c) The Pass Through Trustee shall at the expense of the Company
cause notice of each Special Payment to be mailed to each Certificateholder at
his address as it appears in the Register. In the case of a Special Payment
other than pursuant to the fifth paragraph of Section 2.1(b) or the fifth
paragraph of Section 2.1(c) such notice shall be mailed not less than 15 days
prior to the date any such Special Payment is scheduled to be distributed. In
the case of a Special Payment pursuant to the fifth paragraph of Section 2.1(b)
or the fifth paragraph of Section 2.1(c) such notice should be given as promptly
as practicable after the receipt of notice from the Company that Postponed Notes
or the Equipment Notes referred to in Section 2.1(c) will not be issued. In the
case of any other Special Payments, such notice shall be mailed as soon as
practicable after the Pass Through Trustee has confirmed that it has received
funds for such Special Payment. Notices mailed by the Pass Through Trustee shall
set forth:
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 11.1),
(ii) the amount of the Special Payment for each $1,000 face
amount Certificate (taking into account any payment to be made by the
Company pursuant to Section 2.1(b) or (c), as applicable) , as and the
amount thereof constituting principal, Make-Whole Amount, if any, and
interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a
Regular Distribution Date, the total amount to be received on such date
for each $1,000 face amount Certificate.
If the amount of Make-Whole Amount, if any, payable upon the
prepayment of an Equipment Note has not been calculated at the time that the
Pass Through Trustee mails notice of a Special Payment, it shall be sufficient
if the notice sets forth the other amounts to be distributed and states that any
Make-Whole Amount received will also be distributed.
If any prepayment of the Equipment Notes is canceled, the Pass
Through Trustee, as soon as possible after learning thereof, shall cause notice
thereof to be mailed to each Certificateholder at its address as it appears on
the Register.
SECTION 4.3. Statements to Certificateholders.
(a) On each Regular Distribution Date and Special Distribution Date,
the Pass Through Trustee will include with each distribution of a Scheduled
Payment or a Special Payment to Certificateholders a statement, giving effect to
such distribution to be made on such
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Regular Distribution Date or Special Distribution Date, as the case may be,
setting forth the following information (for each $1,000 face amount Certificate
as to (i) and (ii) below):
(i) The amount of such distribution allocable to principal and
the amount allocable to Make-Whole Amount, if any;
(ii) The amount of such distribution allocable to interest;
and
(iii) The Pool Balance and the Pool Factor.
(b) 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 record a statement containing the sum
of the amounts determined pursuant to clauses (a)(i) and (a)(ii) of this Section
4.3 with respect to the Pass Through Trust for such calendar year or, in the
event such Person was a Certificateholder of record during a portion of such
calendar year, for the applicable portion of such year, and such other items as
are readily available to the Pass Through Trustee and which a Certificateholder
shall reasonably request as necessary for the purpose of such
Certificateholder's preparation of its Federal income tax returns. Such report
and such other items shall be prepared on the basis of information supplied to
the Pass Through Trustee by the Clearing Agency Participants and shall be
delivered by the Pass Through Trustee to such Clearing Agency Participants to be
available for forwarding by such Clearing Agency Participants to Certificate
Owners.
SECTION 4.4. Investment of Special Payment Money. Any money received
by the Pass Through Trustee pursuant to Section 4.1(b) representing a Special
Payment which is not to be promptly distributed shall, to the extent
practicable, be invested in Permitted Investments by the Pass Through Trustee
pending distribution of such Special Payment pursuant to Section 4.2. Any
investment made pursuant to this Section 4.4 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 4.2 on the
applicable Special Distribution Date and the Pass Through Trustee shall hold any
such Permitted Investments until maturity. The Pass Through Trustee shall have
no liability with respect to any investment made pursuant to this Section 4.4,
other than by reason of the willful misconduct or gross negligence of the Pass
Through Trustee. All income and earnings from such investments shall be
distributed to the Certificateholders on such Special Distribution Date as part
of such Special Payment.
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ARTICLE V
THE COMPANY
SECTION 5.1. Maintenance of Corporate Existence. The Company, at its
own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises, except as otherwise specifically permitted in Section 5.2; provided,
however, that the Company shall not be required to preserve any right or
franchise if it shall determine that the preservation thereof is no longer
desirable in the conduct of its business.
SECTION 5.2. Consolidation, Merger or Sale of Assets Permitted.
(a) The Company shall not consolidate with or merge into any other
corporation or sell or convey all or substantially all of its assets to any
Person, unless the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by sale or conveyance all or
substantially all of the assets of the Company 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 in form reasonably satisfactory to the Pass Through Trustee
containing an assumption by such successor corporation of the due and punctual
performance and observance of each covenant and condition of this Agreement to
which the Company is a party.
(b) Immediately after giving effect to such transaction, no Event of
Default and no Indenture Default, and no event that, after notice or lapse of
time, or both, would become an Event of Default or an Indenture Default, shall
have occurred and be continuing.
Upon any consolidation or merger, or any sale or conveyance, of all
or substantially all of the assets of the Company, the successor corporation
formed by such consolidation or into which the Company is merged or to which
such sale or conveyance is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Agreement with the
same effect as if such successor corporation had been named as the Company
herein. No such sale or conveyance of all or 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 from its
liability hereunder.
(c) The Pass Through Trustee may accept an Officer's Certificate and
an Opinion of Counsel of the Company as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption
complies with the provisions of this Section 5.2.
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ARTICLE VI
DEFAULT
SECTION 6.1. Events of Default. If an Indenture Default under the
Indenture (an "Event of Default") shall occur and be continuing, then, and in
each and every case, so long as such Event of Default shall be continuing, the
Pass Through Trustee may vote all of the Equipment Notes issued under the
Indenture that are held in the Trust Property, and upon the direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Pass Through
Trust, the Trustee shall vote a corresponding majority of such Equipment Notes,
in favor of directing the Indenture Trustee under the Indenture to declare the
unpaid principal amount of all Equipment Notes then outstanding under the
Indenture and accrued interest thereon to be due and payable under, and in
accordance with the provisions of, the Indenture. In addition, if an Indenture
Default shall have occurred and be continuing under the Indenture, the Pass
Through Trustee may, and upon the direction of the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less than
a majority in interest in the Pass Through Trust, shall, vote all of the
Equipment Notes issued under the Indenture that are held in the Pass Through
Trust to direct the Indenture Trustee regarding the exercise of remedies
provided in Article V of the Indenture.
In addition, after an Event of Default shall have occurred and be
continuing with respect to any Equipment Notes, the Pass Through Trustee may in
its discretion, and upon the direction of the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less than
a majority in interest in the Pass Through Trust shall, by such officer or agent
as it may appoint, sell, convey, transfer and deliver (to the extent permitted
by applicable law) all or part of such Equipment Notes, without recourse to or
warranty by the Pass Through Trustee or any Certificateholder, to any Person. In
any such case, the Pass Through Trustee shall sell, assign, contract to sell or
otherwise dispose of and deliver such Equipment Note or Equipment Notes 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 Note pursuant to this Section, the
Pass Through Trustee shall take such of the actions described above as it may
reasonably deem most effectual to complete the sale or other disposition of such
Equipment Note, so as to provide for the payment in full of all amounts due on
the Certificates. Notwithstanding the foregoing, any action taken by the Pass
Through Trustee under this Section shall not, in the reasonable judgment of the
Pass Through Trustee, be adverse to the best interests of the
Certificateholders.
If, with respect to any Equipment Notes, an Indenture Default shall
have occurred and be continuing and the Owner Trustee, which is a party to the
Indenture has elected, in accordance with the provisions of Section 5.04(b) of
the Indenture, to purchase all
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of the then outstanding Equipment Notes issued under the Indenture at a price
equal to the aggregate unpaid principal amount thereof, together with accrued
interest thereon to the date of such purchase, then the Pass Through Trustee
shall sell to such Owner Trustee all of the Equipment Notes held in the Pass
Through Trust at a price equal to the aggregate unpaid principal amount thereof,
together with accrued interest thereon to the date of such sale.
SECTION 6.2. Incidents of Sale of Equipment Notes. Upon any sale of
all or any part of the Equipment Notes made either under the power of sale given
under this Pass Through Trust Agreement or otherwise for the enforcement of this
Pass Through Trust Agreement, the following shall be applicable:
(i) Certificateholders and Pass Through Trustee May Purchase
Equipment Notes. Any Certificateholder, the Pass Through Trustee in its
individual or any other capacity or any other Person may bid for and
purchase any of the Equipment Notes, and upon compliance with the terms of
sale, may hold, retain, possess and dispose of such Equipment Notes in
their own absolute right without further accountability; provided,
however, that this provision shall not apply to the sale of Equipment
Notes pursuant to the last paragraph of Section 6.1.
(ii) 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
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.
(iii) 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 Trust Agreement or otherwise for
the enforcement of this Pass Through Trust Agreement, shall be applied as
provided in Section 4.2(b).
SECTION 6.3. Judicial Proceedings Instituted by Pass Through
Trustee.
(a) Pass Through Trustee May Bring Suit. If there shall be a failure
to make payment of the principal of, Make-Whole Amount, if any, or interest on
any Equipment Note, or if there shall be any failure to pay Rent (as defined in
the Lease) under the Lease when due and payable, then the Pass Through Trustee,
in its own name, and as trustee of an express trust, as holder of such Equipment
Notes, shall be, to the extent permitted by and in accordance with the terms of
the Note Documents, entitled and empowered to institute any suits, actions or
proceedings at law, in equity or otherwise, for the collection of the sums so
due and unpaid on such Equipment Notes or under the Lease and may prosecute any
such claim or proceeding to judgment or final decree with respect to the whole
amount of any such sums so due and unpaid.
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(b) Pass Through Trustee May File Proofs of Claim; Appointment of
Pass Through Trustee as Attorney-in-Fact in Judicial Proceedings. The Pass
Through Trustee in its own name, or as trustee of an express trust, or as
attorney-in-fact for the Certificateholders, or in any one or more of such
capacities (irrespective of whether distributions on the Certificates shall then
be due and payable, or the payment of the principal on the Equipment Notes shall
then be due and payable, as therein expressed or by declaration or otherwise and
irrespective of whether the Pass Through Trustee shall have made any demand to
the Indenture Trustee for the payment of overdue principal, Make-Whole Amount
(if any) or interest on Equipment Notes), shall be entitled and empowered to
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Pass Through Trustee and of the
Certificateholders allowed in any receivership, insolvency, bankruptcy,
liquidation, readjustment, reorganization or any other judicial proceedings
relative to the Company, the Owner Trustee, the Owner Participant or their
respective creditors or property. Any receiver, assignee, trustee, liquidator,
sequestrator (or similar official) in any judicial proceeding is hereby
authorized by each Certificateholder to make payments in respect of such claim
to the Pass Through Trustee and, in the event that the Pass Through Trustee
shall consent to the making of such payments directly to the Certificateholders,
to pay to the Pass Through Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Pass Through Trustee,
its agents and counsel. Nothing contained in this Pass Through Trust Agreement
shall be deemed to give to the Pass Through Trustee any right to accept or
consent to any plan of reorganization or otherwise by action of any character in
any such proceeding to waive of change in any way any right of any
Certificateholder.
SECTION 6.4. Control by Certificateholders. Subject to Section 2.3,
the Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Pass Through
Trust shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Pass Through Trustee, or
exercising any trust or power conferred on the Pass Through Trustee under this
Pass Through Trust Agreement, including any right of the Pass Through Trustee as
holder of the Equipment Notes, provided that:
(i) such direction shall not be in conflict with any rule of
law or with this Pass Through Trust Agreement and would not involve the
Pass Through Trustee in personal liability or expense,
(ii) the Pass Through Trustee shall not determine that the
action so directed would be unjustly prejudicial to the Certificateholders
not taking part in such direction; it being understood that (subject to
Section 7.1) the Pass Through Trustee shall have no duty or obligation to
ascertain whether or not such actions or forebearances are unjustly
prejudicial to such Certificateholders;
(iii) the Pass Through Trustee may take any other action
deemed proper by the Pass Through Trustee which is not inconsistent with
such direction, and
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(iv) if an Indenture Default under the Indenture shall have
occurred and be continuing, such direction shall not obligate the Trustee
to vote more than a corresponding majority of the related Equipment Notes
held by the Trust in favor of directing any action by the Indenture
Trustee with respect to the Indenture Default.
SECTION 6.5. Waiver of Past Defaults. The Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less than
a majority in interest in the Pass Through Trust may on behalf of all of the
Certificateholders waive any past Event of Default hereunder and its
consequences or may instruct the Pass Through Trustee to waive any past default
under the Indenture or this Agreement and its consequences, except a default (i)
in the payment of the principal of, Make-Whole Amount, if any, or interest on
any Equipment Notes, or (ii) in respect of a covenant or provision hereof which
under Article IX hereof cannot be modified or amended without the consent of the
Certificateholder holding each Outstanding Certificate affected.
Upon any such waiver, such default shall cease to exist with respect
to this Pass Through Trust Agreement, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Pass Through Trust
Agreement and any direction given by the Pass Through Trustee on behalf of such
Certificateholders to the Indenture Trustee shall be annulled with respect
thereto; but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon. Upon any such waiver,
the Pass Through Trustee shall vote all the Equipment Notes issued under the
Indenture to waive the corresponding Indenture Default.
SECTION 6.6. Undertaking to Pay Court Costs. All parties to this
Pass Through Trust Agreement, and each Certificateholder by his acceptance of a
Certificate, shall be deemed to have agreed that any court may in its discretion
require, in any suit, action or proceeding for the enforcement of any right or
remedy under this Pass Through Trust Agreement, or in any suit, action or
proceeding against the Pass Through Trustee for any action taken or omitted by
it as Pass Through Trustee hereunder, the filing by any party litigant in such
suit, action or proceeding of an undertaking to pay the costs of such suit,
action or proceeding, and that such court may, in its discretion, assess
reasonable costs, including reasonable attorney's fees, against any party
litigant in such suit, action or proceeding, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section shall not apply to (a) any suit,
action or proceeding instituted by any Certificateholder or group of
Certificateholders evidencing Fractional Undivided Interests aggregating more
than 10% of the Pass Through Trust, (b) any suit, action or proceeding
instituted by any Certificateholder for the enforcement of the distribution of
payments pursuant to Section 4.2 hereof on or after the respective due dates
expressed herein or (c) any suit, action or proceeding instituted by the Pass
Through Trustee or as to which the Pass Through Trustee is made a party.
SECTION 6.7. Right of Certificateholders to Receive Payments Not to
Be Impaired. Anything in this Pass Through Trust Agreement to the contrary
notwithstanding,
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including without limitation Section 6.8 hereof, the right of any
Certificateholder to receive distributions of payments required pursuant to
Section 4.2 hereof on the Certificates when due, or to institute suit for the
enforcement of any such payment on or after the applicable Regular Distribution
Date or Special Distribution Date, shall not be impaired or affected without the
consent of such Certificateholder.
SECTION 6.8. Certificateholders May Not Bring Suit Except Under
Certain Conditions. A Certificateholder shall not have the right to institute
any suit, action or proceeding at law or in equity or otherwise with respect to
this Pass Through Trust Agreement, for the appointment of a receiver or for the
enforcement of any other remedy under this Pass Through Trust Agreement, unless:
(i) such Certificateholder previously shall have given written
notice to the Pass Through Trustee of a continuing Event of Default;
(ii) the Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than 25% of the Pass
Through Trust shall have requested the Pass Through Trustee in writing to
institute such action, suit or proceeding and shall have offered to the
Pass Through Trustee indemnity as provided in Section 7.3(v);
(iii) the Pass Through Trustee shall have refused or neglected
to institute any such action, suit or proceeding for 60 days after receipt
of such notice, request and offer of indemnity; and
(iv) no direction inconsistent with such written request has
been given to the Pass Through Trustee during such 60-day period by the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than an a majority in interest in the Pass
Through Trust.
It is understood and intended that no one or more of the
Certificateholders shall have any right in any manner whatever hereunder or
under the Certificates to (x) surrender, impair, waive, affect, disturb or
prejudice any property in the Trust Property or the lien of the Indenture on any
property subject thereto, or the rights of the Certificateholders or the holders
of the Equipment Notes, (y) obtain or seek to obtain priority over or preference
to any other such Certificateholder or (z) enforce any right under this Pass
Through Trust Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all the Certificateholders subject to the
provisions of this Pass Through Trust Agreement.
SECTION 6.9. Remedies Cumulative. Every remedy given hereunder to
the Pass Through Trustee or to any of the Certificateholders shall not be
exclusive of any other remedy or remedies, and every such remedy shall be
cumulative and in addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise.
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ARTICLE VII
THE PASS THROUGH TRUSTEE
SECTION 7.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(i) the Pass Through Trustee undertakes to perform only such
duties as are specifically set forth in this Pass Through Trust Agreement,
and no implied covenants, duties or obligations shall be read into this
Pass Through Trust Agreement against the Pass Through Trustee; and
(ii) in the absence of bad faith on its part, the Pass Through
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Pass Through Trustee and conforming to the
requirements of this Pass Through Trust Agreement; but in the case of any
such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Pass Through Trustee, the
Pass Through Trustee shall be under a duty to examine the form of the same
to determine whether or not they substantially conform to the requirements
of this Pass Through Trust Agreement, but shall be under no duty to
investigate the facts contained therein.
(b) In case an Event of Default has occurred and is continuing, the
Pass Through Trustee shall exercise such of the right and powers vested in it by
this Pass Through Trust Agreement, and use the same degree of care and skill in
its exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(c) No provision of this Pass Through Trust Agreement shall be
construed to relieve the Pass Through Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that
(i) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(ii) the Pass Through Trustee shall not be liable for any
error of judgement made in good faith by a Responsible Officer of the Pass
Through Trustee;
(iii) the Pass Through Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Certificateholders evidencing
Fractional Undivided Interests aggregating not less than a majority in
interest in the Pass Through Trust relating to the time, method and place
of conducting any proceeding for any remedy available to the Pass Through
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Trustee, or exercising any trust or power conferred upon the Pass Through
Trustee, under this Pass Through Trust Agreement; and
(iv) no provision of this Pass Through Trust Agreement shall
require the Pass Through Trustee to expend or risk its own funds in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that payment of such funds or adequate indemnity against such risk is not
reasonably assured to it.
(d) Whether or not herein expressly so provided, every provision of
this Pass Through Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Pass Through Trustee shall be
subject to the provisions of this Section.
SECTION 7.2. Notice of Defaults. As promptly as practicable after,
and in any event within 30 days after, the occurrence of any default (as such
term is defined below) hereunder, the Pass Through Trustee shall transmit by
mail to the Certificateholders, the Company, the Owner Trustees and the
Indenture Trustees in accordance with Section 313(c) of the Trust Indenture Act,
notice of such default hereunder known to the Pass Through Trustee, unless such
default shall have been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of (or Make-Whole Amount, if
any) or interest on any Equipment Note, 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 and/or Responsible
Officers of the Pass Through Trustee in good faith determine that the
withholding of such notice is in the interests of the Certificateholders. For
the purpose of this Section, the term "default" means the occurrence of any
Event of Default, except that in determining whether any such Event of Default
has occurred for the purposes of this paragraph any grace period or notice in
connection therewith shall be disregarded.
SECTION 7.3. Certain Rights of Trustee. Except as otherwise provided
in Section 7.1:
(i) the Pass Through Trustee may rely and shall be protected
in acting or refraining from acting in reliance upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Request;
(iii) whenever in the administration of this Pass Through
Trust Agreement the Pass Through Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Pass Through Trustee (unless other evidence be
herein specifically prescribed) may, in the
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absence of bad faith on its part, rely upon an Officer's Certificate of
the Company, the Owner Trustee or the Indenture Trustee;
(iv) before the Pass Through Trustee acts or refrains from
acting, it may consult with counsel and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(v) the Pass Through Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Pass Through
Trust Agreement at the request or direction of any of the
Certificateholders pursuant to this Pass Through Trust Agreement, unless
such Certificateholders shall have offered to the Pass Through Trustee
security or indemnity reasonable to it against the cost, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(vi) 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,
direction, consent, order, bond, debenture or other paper or document;
(vii) the Pass Through Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Pass Through Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(viii) to the extent the provisions of this Section 7.3 are
inconsistent with the duties of the Pass Through Trustee as required by
Section 315 of the Trust Indenture Act, the requirements of such Section
315 shall prevail;
(ix) the Pass Through Trustee shall not be required to give
any bond or surety with respect to the performance of its powers and
duties hereunder; and
(x) the permissive rights of the Pass Through Trustee shall
not be construed as a duty.
SECTION 7.4. Not Responsible for Recitals or Issuance of
Certificates. The recitals contained herein and in the Certificates, except the
certificates of authentication, shall not be taken as the statements of the Pass
Through Trustee, and the Pass Through Trustee assumes no responsibility for
their correctness. Subject to Section 7.15, the Pass Through Trustee makes no
representations as to the validity or sufficiency of this Pass Through Trust
Agreement, any Note Document, the Participation Agreement, the Equipment Notes
or the Certificates, except that the Pass Through Trustee hereby represents and
warrants that this Pass Through Trust Agreement has been, and each Certificate
will be, executed and delivered by one of its officers who is duly authorized to
execute and deliver such document on its behalf.
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SECTION 7.5. May Hold Certificates. The Pass Through Trustee, any
Paying Agent, Registrar or any of their Affiliates or any other agent, in their
respective individual or any other capacity, may become the owner or pledgee of
Certificates and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
may otherwise deal with the Company, the Owner Trustee or the Indenture Trustee
with the same rights it would have if it were not Pass Through Trustee, Paying
Agent, Registrar or such other agent.
SECTION 7.6. Money Held in Pass Through Trust. Money held by the
Pass Through Trustee or the Paying Agent in trust hereunder need not be
segregated from other funds except to the extent required herein or by law and
neither the Pass Through Trustee nor the Paying Agent shall have any liability
for interest upon any such moneys except as provided for herein.
SECTION 7.7. Compensation and Reimbursement. The Company agrees:
(i) to pay, or cause to be paid, to the Pass Through Trustee
from time to time reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust), except
for the Pass Through Trustee's initial fees, which fees shall be paid by
the Owner Trustee;
(ii) except as otherwise expressly provided herein, to
reimburse, or cause to be reimbursed, the Pass Through Trustee upon its
request for all reasonable out-of-pocket expenses, disbursements and
advances incurred or made by the Pass Through Trustee in accordance with
any provision of this Pass Through Trust Agreement (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence, willful misconduct or bad faith or as may
be incurred due to the Pass Through Trustee's breach of its
representations and warranties set forth in Sections 7.4 and 7.15 and
except for the initial reasonable actual disbursements made by the Pass
Through Trustee, which disbursements shall be reimbursed by the Owner
Trustee;
(iii) to indemnify, or cause to be indemnified, the Pass
Through Trustee, in its individual and trust capacities, for, and to hold
it harmless against, any loss, liability or expense (other than for or
with respect to any tax) incurred without negligence, willful misconduct
or bad faith, on its part, arising out of or in connection with the
acceptance or administration of this Pass Through Trust, including the
costs and expenses of defending itself against or investigating any claim
or liability in connection with the exercise or performance of any of its
powers or duties hereunder, except for any such loss, liability or expense
incurred by reason of the Pass Through Trustee's breach of its
representations and warranties set forth in Sections 7.4 and 7.15. The
Pass Through Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. The Company shall defend the claim and the
Pass Through
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Trustee shall cooperate in the defense. The Pass Through Trustee may have
separate counsel with the consent of the Company, and the Company will pay
the reasonable fees and expenses of such counsel. The Company need not pay
for any settlement made without its consent; and
(iv) to indemnify, or cause to be indemnified, the Pass
Through Trustee, solely in its individual capacity, for, and to hold it
harmless against, any tax (other than for or with respect to any tax
referred to in the next paragraph, provided that no indemnification shall
be available with respect to any tax attributable to the Pass Through
Trustee's compensation for serving as such) incurred without negligence,
willful misconduct or bad faith, on its part, arising out of or in
connection with the acceptance or administration of this Pass Through
Trust, including any costs and expenses reasonably incurred in contesting
the imposition of any such tax. The Pass Through Trustee, in its
individual capacity, shall notify the Company promptly of any tax for
which it may seek indemnity. The Company shall defend against the
imposition of such tax and the Pass Through Trustee, in its individual
capacity, shall cooperate in the defense. The Pass Through Trustee, in its
individual capacity, may have separate counsel with the consent of the
Company, and the Company will pay the reasonable fees and expenses of such
counsel. The Company need not pay for any taxes paid, in settlement or
otherwise, without its consent.
In addition, the Pass Through Trustee shall be entitled to
reimbursement from, and shall have a lien prior to the Certificates upon, all
property and funds held or collected by the Pass Through Trustee 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 this Pass Through Trust (other than any tax
attributable to the Pass Through Trustee's compensation for serving as such),
including any costs and expenses reasonably incurred in contesting the
imposition of any such tax. If the Pass Through Trustee reimburses itself for
any such tax, it will within 30 days mail a brief report setting forth the
circumstances thereof to all Certificateholders as their names and addresses
appear in the Register.
The Pass Through Trustee shall have a lien prior to the Certificates
upon all property and funds held or collected by the Pass Through Trustee in its
capacity as Pass Through Trustee.
SECTION 7.8. Corporate Trustee Required; Eligibility. This Agreement
shall at all times have a Pass Through Trustee which shall be eligible to act as
a trustee under Section 310(a) of the Trust Indenture Act and shall have a
combined capital and surplus of at least $100,000,000 or the obligations of
which, whether now in existence or hereafter incurred, are fully and
unconditionally guaranteed by a corporation organized and doing business under
the laws of the United States of America, any State or Territory thereof or of
the District of Columbia and having a combined capital and surplus of at least
$100,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or the
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requirements of Federal, State, Territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section 7.8, 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.
The Pass Through Trustee shall comply with Section 310(b) of the
Trust Indenture Act.
In case at any time the Pass Through Trustee shall cease to be
eligible in accordance with the provisions of this Section 7.8, the Pass Through
Trustee shall resign immediately in the manner and with the effect specified in
Section 7.9.
SECTION 7.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Pass Through Trustee and no
appointment of a successor Pass Through Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Pass
Through Trustee under Section 7.10.
(b) The Pass Through Trustee may resign at any time by giving
written notice thereof to the Company, the Authorized Agents, the Owner Trustee
and the Indenture Trustee. If an instrument of acceptance by a successor Pass
Through Trustee shall not have been delivered to the Company, the Owner Trustee
and the Indenture Trustee within 30 days after the giving of such notice of
resignation, the resigning Pass Through Trustee may petition any court of
competent jurisdiction for the appointment of a successor Pass Through Trustee.
(c) The Pass Through Trustee may be removed at any time by Act of
the Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Pass Through
Trust delivered to the Pass Through Trustee and to the Company, the Owner
Trustee and the Indenture Trustee.
(d) If at any time:
(i) the Pass Through Trustee shall fail to comply with Section
310 of the Trust Indenture Act after written request therefor by the
Company or by any Certificateholder who has been a bona fide
Certificateholder for at least six months; or
(ii) the Pass Through Trustee shall cease to be eligible under
Section 7.8 and shall fail to resign after written request therefor by the
Company or by any such Certificateholder; or
(iii) the Pass Through Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a receiver of the
Pass Through Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Pass
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Through Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any case, (x) the Company may remove the Pass Through Trustee or (y)
subject to Section 6.6, any Certificateholder who has been a bona fide
Certificateholder for at least six months may, on behalf of himself 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 Pass
Through Trustee.
(e) If a Responsible Officer of the Pass Through Trustee shall
obtain actual knowledge of an Avoidable Tax (as hereinafter defined) which has
been or is likely to be asserted, the Pass Through Trustee shall promptly notify
the Company and the Owner Trustees thereof and shall, within 30 days of such
notification, resign hereunder unless within such 30-day period the Pass Through
Trustee shall have received notice that the Company or the Owner Trustees have
agreed to pay such tax. The Company shall promptly appoint a successor Pass
Through Trustee in a jurisdiction where there are no Avoidable Taxes. As used
herein, an "Avoidable Tax" means a state or local tax: (i) upon (w) the Pass
Through Trust, (x) the Trust Property, (y) Certificateholders or (z) the Pass
Through Trustee for which the Pass Through Trustee is entitled to seek
reimbursement from the Trust Property, 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 Avoidable Tax if the
Company or the Owner Trustee shall agree to pay, and shall pay, such tax.
(f) If the Pass Through Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Pass
Through Trustee for any cause, the Company shall promptly appoint a successor
Pass Through Trustee. If, within one year after such resignation, removal or
incapacity, or the occurrence of such vacancy, a successor Pass Through Trustee
shall be appointed by Act of the Certificateholders holding Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Pass Through Trust delivered to the Company, the Owner
Trustee, the Indenture Trustee and the retiring Pass Through Trustee, the
successor Pass Through Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Pass Through Trustee and supersede the
retiring Pass Through Trustee. If no successor Pass Through Trustee shall have
been so appointed as provided above and accepted appointment in the manner
hereinafter provided, any Certificateholder who has been a bona fide
Certificateholder for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Pass Through Trustee.
(g) The successor Pass Through Trustee shall give notice of the
resignation and removal of the Pass Through Trustee and appointment of the
successor Pass Through Trustee by mailing written notice of such event by
first-class mail, postage prepaid, to the Certificateholders as their names and
addresses appear in the Register. Each notice shall include the name of such
successor Pass Through Trustee and the address of its Corporate Trust Office.
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SECTION 7.10. Acceptance of Appointment by Successor. Every
successor Pass Through Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and the retiring Pass Through Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Pass Through Trustee shall become effective and such successor Pass
Through Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Pass
Through Trustee; but, on request of the Company or the successor Pass Through
Trustee, such retiring Pass Through Trustee shall execute and deliver an
instrument transferring to such successor Pass Through Trustee all the rights,
powers and trusts of the retiring Pass Through Trustee and shall duly assign,
transfer and deliver to such successor Pass Through Trustee all property and
money held by such retiring Pass Through Trustee hereunder, subject nevertheless
to its lien, if any, provided for in Section 7.7. Upon request of any such
successor Pass Through Trustee, the Company, the retiring Pass Through Trustee
and such successor Pass Through Trustee shall execute and deliver any and all
instruments containing such provisions as shall be necessary or desirable to
transfer and confirm to, and for more fully and certainly vesting in, such
successor Pass Through Trustee all such rights, powers and trusts.
No successor Pass Through Trustee shall accept its appointment
unless at the time of such acceptance such successor Pass Through Trustee shall
be qualified and eligible under this Article.
SECTION 7.11. Merger, Conversion, Consolidation or Succession to
Business. 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
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Pass Through Trustee, shall be the successor
of the Pass Through Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
In case any Certificates shall have been authenticated, but not delivered, by
the Pass Through Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Pass Through Trustee may adopt such
authentication and deliver the Certificates so authenticated with the same
effect as if such successor Pass Through Trustee had itself authenticated such
Certificates.
SECTION 7.12. Maintenance of Agencies.
(a) There shall at all times be maintained in the Borough of
Manhattan, The City of New York, an office or agency where Certificates may be
presented or surrendered for registration of transfer or for exchange, and for
payment thereof and where notices and demands to or upon the Pass Through
Trustee in respect of the Certificates or of this Pass Through Trust Agreement
may be served. Such office or agency shall be initially an affiliate of Xxxxxx
Trust and Savings Bank, Xxxxxx Trust Company of New York, 00 Xxxx Xxxxxx, Xxx
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Xxxx, Xxx Xxxx 00000. 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, the Owner Trustee, the Indenture Trustee and the
Certificateholders. 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.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder. Each such Authorized Agent shall be a bank or trust company, shall be
a corporation organized and doing business under the laws of the United States
of America or any State or Territory thereof or of the District of Columbia,
with a combined capital and surplus of at least $75,000,000, or, if the Pass
Through Trustee shall be acting as the Registrar or Paying Agent hereunder, a
corporation the obligations of which are guaranteed by a corporation organized
and doing business under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia, with a combined capital and
surplus of at least $75,000,000, and shall be authorized under such laws to
exercise corporate trust powers, subject to supervision by Federal or state
authorities. The Pass Through Trustee shall initially be the Paying Agent and,
as provided in Section 3.4, Registrar hereunder. Each Registrar shall furnish to
the Pass Through Trustee, at stated intervals of not more than six months, and
at such other times as the Pass Through Trustee may request in writing, a copy
of the Register.
(c) Any corporation into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authorized Agent shall
be a party, or any corporation succeeding to the corporate trust business of any
Authorized Agent, shall be the successor of such Authorized Agent hereunder, if
such successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the parties
hereto or such Authorized Agent or such successor corporation.
(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Pass Through Trustee, the Company, the Owner
Trustee and the Indenture Trustee. The Company may, and at the request of the
Pass Through Trustee shall, at any time terminate the agency of any Authorized
Agent by giving written notice of termination to such Authorized Agent and to
the Pass Through Trustee. Upon the resignation or termination of an Authorized
Agent or in case at any time any such Authorized Agent shall cease to be
eligible under this Section (when, in either case, no other Authorized Agent
performing the functions of such Authorized Agent shall have been appointed),
the Company shall promptly appoint one or more qualified successor Authorized
Agents, reasonably satisfactory to the Pass Through Trustee, to perform the
functions of the Authorized Agent which has resigned or whose agency has been
terminated or who shall have ceased to be eligible under this Section. The
Company shall give written notice of any such appointment made by them to the
Pass Through Trustee, the Owner Trustee and the Indenture Trustee; and in each
case the Pass Through Trustee shall mail notice of such appointment to all
Certificateholders as their names and addresses appear on the Register.
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(e) The Company agrees to pay, or cause to be paid, from time to
time to each Authorized Agent reasonable compensation for its services and to
reimburse it for its reasonable expenses.
SECTION 7.13. Money for Certificate Payments to Be Held in Pass
Through Trust. All moneys deposited with any Paying Agent for the purpose of any
payment on Certificates shall be deposited and held in trust for the benefit of
the Certificateholders entitled to such payment, subject to the provisions of
this Section. Moneys so deposited and held in trust shall constitute a separate
trust fund for the benefit of the Certificateholders with respect to which such
money was deposited.
The Pass Through Trustee will cause each Paying Agent other than the
Pass Through Trustee to execute and deliver to it an instrument in which such
Paying Agent shall agree with the Pass Through Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for payments on Certificates in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(ii) give the Pass Through Trustee notice of any default by
any obligor upon the Certificates in the making of any such payment; and
(iii) at any time during the continuance of any such default,
upon the written request of the Pass Through Trustee, forthwith pay to the
Pass Through Trustee all sums so held in trust by such Paying Agent.
The Pass Through Trustee may at any time, for the purpose of
obtaining the satisfaction and discharge of this Pass Through Trust Agreement or
for any other purpose, direct any Paying Agent to pay to the Pass Through
Trustee all sums held in trust by such Paying Agent, such sums to be held by the
Pass Through Trustee upon the same trusts as those upon which such sums were
held by such Paying Agent; and, upon such payment by any Paying Agent to the
Pass Through Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
SECTION 7.14. Registration of Equipment Notes in Pass Through
Trustee's Name. The Pass Through Trustee agrees that all Equipment Notes,
Permitted Investments, if any, and Specified Investments, if any, shall be
issued in the name of the Pass Through Trustee or its nominee and held by the
Pass Through Trustee, or, if not so held, the Pass Through Trustee or its
nominee shall be reflected as the owner of such Equipment Notes, Permitted
Investments, or Specified Investments, as the case may be, in the register of
the issuer of such Equipment Notes, Permitted Investments or Specified
Investments. In no event shall the Pass Through Trustee invest in, or hold,
Equipment Notes, Permitted Investments or Specified Investments in a manner that
would cause the Pass Through Trustee not to have the ownership
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interest in such Equipment Notes, Permitted Investments or Specified Investments
under the applicable provisions of the Uniform Commercial Code in effect where
the Pass Through Trustee holds such Equipment Notes, Permitted Investments or
Specified Investments or other applicable law then in effect.
SECTION 7.15. Representations and Warranties of Pass Through
Trustee. The Pass Through Trustee hereby represents and warrants that:
(i) the Pass Through Trustee is an Illinois banking
corporation, validly existing and holding a valid certificate to conduct
business as an Illinois banking corporation with trust powers;
(ii) the Pass Through Trustee has full power, authority and
legal right to execute, deliver, and perform this Pass Through Trust
Agreement and the Participation Agreement and has taken all necessary
action to authorize the execution, delivery, and performance by it of this
Pass Through Trust Agreement and the Participation Agreement;
(iii) the execution, delivery and performance by the Pass
Through Trustee of this Pass Through Trust Agreement and the Participation
Agreement (a) will not violate any provision of any United States or
Illinois law or regulation governing the banking and trust powers of the
Pass Through Trustee or any order, writ, judgment, or decree of any court,
arbitrator, or governmental authority applicable to the Pass Through
Trustee or any of its assets, (b) will not violate any provision of the
articles of association or by-laws of the Pass Through Trustee, or (c)
will not violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or imposition
of any lien on any properties included in the Trust Property pursuant to
the provisions of any mortgage, indenture, contract, agreement or other
undertaking to which it is a party, which violation, default or lien could
reasonably be expected to have an adverse effect on the Pass Through
Trustee's performance or ability to perform its duties hereunder or
thereunder or on the transactions contemplated herein or therein;
(iv) the execution, delivery and performance by the Pass
Through Trustee of this Pass Through Trust Agreement and the Participation
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 United States or Illinois governmental
authority or agency regulating the banking and corporate trust activities
of the Pass Through Trustee, other than any such authorization, consent or
approval as has been duly obtained or given and is in full force and
effect; and
(v) this Pass Through Trust Agreement and the Participation
Agreement have been duly executed and delivered by the Pass Through
Trustee and constitute the legal, valid, and binding agreements of the
Pass Through Trustee, enforceable against it
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to the extent such agreements are enforceable against the other parties
thereto (as to which the Pass Through Trustee makes no representation or
warranty) in accordance with their respective terms, provided that
enforceability may be limited by (x) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and (y) general principles of equity.
SECTION 7.16. Withholding Taxes; Information Reporting. The Pass
Through Trustee, as trustee of a grantor trust, shall exclude and withhold from
each distribution of principal, Make-Whole Amount, if any, and interest and
other amounts due hereunder or under the Certificates any and all withholding
taxes applicable thereto as required by law. The Pass Through Trustee agrees to
act as such withholding agent and, in connection therewith, whenever any present
or future taxes or similar charges are required to be withheld with respect to
any amounts payable in respect of the Certificates, to withhold such amounts and
timely pay the same to the appropriate authority in the name of and on behalf of
the Certificateholders, 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 Certificateholder appropriate documentation
showing the payment thereof, together with such additional documentary evidence
as such Certificateholders 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 United States law. To the extent that the Pass Through
Trustee fails, with respect to any Certificateholder, to withhold and pay over
any such taxes to the appropriate taxing authority, the Pass Through Trustee
shall, upon a claim being made for such taxes by such authority, and before
making any claim to the Company for indemnification under Section 7.1 of the
Participation Agreement (if such indemnification would otherwise be permissible
thereunder), take all reasonable steps to recover such taxes from such
Certificateholder, including, without limitation, withholding the amount of such
taxes from subsequent distributions, if any, to such Certificateholder. To the
extent that the Pass Through Trustee receives any amount from the Company for
indemnification of such taxes which the Pass Through Trustee thereafter recovers
from the appropriate Certificateholder (including by withholding from subsequent
distributions to such Certificateholder), the Pass Through Trustee shall
reimburse the Company therefor. The Pass Through Trustee shall be permitted to
rely upon any certificate presented by a Certificateholder claiming an exemption
from withholding absent bad faith on the part of the Pass Through Trustee.
SECTION 7.17. Trustee's Liens. The Pass Through Trustee in its
individual capacity agrees that it will at its own cost and expense promptly
take such actions as may be necessary to duly discharge and satisfy in full all
Trustee's Liens.
SECTION 7.18. Preferential Collection of Claims. The Pass Through
Trustee shall comply with Sections 311(a) and (b) of the Trust Indenture Act,
excluding any creditor relationship arising under Section 311(b) of the Trust
Indenture Act. A Pass Through Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated.
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ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY PASS THROUGH TRUSTEE
SECTION 8.1. Company to Furnish Pass Through Trustee with Names and
Addresses of Certificateholders. The Company will furnish to the Pass Through
Trustee within 15 days after each Record Date with respect to a Scheduled
Payment, and at such other times as the Pass Through Trustee may request in
writing, within 30 days after receipt by the Company of any such request, a
list, in such form as the Pass Through Trustee may reasonably require, of all
information in the possession or control of the Company as to the names and
addresses of the Certificateholders, in each case as of a date not more than 15
days prior to the time such list is furnished; provided, however, that so long
as the Pass Through Trustee is the sole Registrar, no such list need be
furnished; and provided further, however, that no such list need be furnished
for so long as a copy of the Register is being furnished to the Pass Through
Trustee pursuant to Section 7.12.
SECTION 8.2. Preservation of Information; Communications to
Certificateholders. The Pass Through Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses of Certificateholders
contained in the most recent Register or list furnished to the Pass Through
Trustee as provided in Section 7.12 or Section 8.1, as the case may be, and the
names and addresses of Certificateholders received by the Pass Through Trustee
in its capacity as Registrar, if so acting. The Pass Through Trustee may destroy
any Register or list furnished to it as provided in Section 7.12 or Section 8.1,
as the case may be, upon receipt of a new Register or list so furnished.
SECTION 8.3. Reports by Pass Through Trustee.
(a) Within 60 days after November 1 of each year commencing with the
year 1998, the Pass Through Trustee shall transmit to the Certificateholders, as
provided in Section 313(c) of the Trust Indenture Act, a report dated as of such
November 1, if required by Section 313(a) of the Trust Indenture Act. The Pass
Through Trustee shall also comply with Section 313(b) of the Trust Indenture
Act.
(b) A copy of each such report shall, at the time of transmission to
Certificateholders, be filed by the Pass Through Trustee with each stock
exchange (if any) upon which the Certificates are listed, and also with the
Commission. The Company will notify the Pass Through Trustee when the
Certificates are listed on any stock exchange and any subsequent change with
respect thereto.
SECTION 8.4. Reports by the Company. The Company shall:
(a) file with the Pass Through Trustee, within 30 days after it is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may
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from time to time by rules and regulations prescribe) which the Company is
required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended; or if it is not required to
file information, documents or reports pursuant to either of such sections, then
to file with the Pass Through Trustee and the Commission, in accordance with
rules and regulations prescribed by the Commission pursuant to Section 314(a)(1)
of the Trust Indenture Act, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, in respect of a security listed and
registered on a national securities exchange as may be prescribed in such rules
and regulations;
(b) file with the Pass Through Trustee and the Commission, in
accordance with the rules and regulations prescribed 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 Agreement, as may
be required by such rules and regulations, including, in the case of annual
reports, if required by such rules and regulations, certificates or opinions of
independent public accountants, conforming to the requirements of Section 1.2;
(c) transmit to all Certificateholders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act such summaries of
any information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section 8.4 as may be required by
rules and regulations prescribed by the Commission; and
(d) furnish to the Pass Through Trustee, not less often than
annually, a certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his or her knowledge of
the Company's compliance with all conditions and covenants under this Agreement.
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
Agreement.
ARTICLE IX
SUPPLEMENTS TO PASS THROUGH TRUST AGREEMENT
SECTION 9.1. Supplements to Pass Through Trust Agreement Without
Consent of Certificateholders. Without the consent of the Certificateholders,
the Company may, and the Pass Through Trustee (subject to Section 9.3) shall, at
any time and from time to time enter into one or more agreements supplemental
hereto, in form satisfactory to the Pass Through Trustee, for any of the
following purposes:
(i) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein contained;
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(ii) to add to the covenants of the Company for the benefit of
the Certificateholders, or to surrender any right or power herein
conferred upon the Company;
(iii) to cure any ambiguity, to correct any manifest error to
correct or supplement any provision herein which may be defective or
inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under this Pass
Through Trust Agreement, provided that any such action shall not adversely
affect the interests of the Certificateholders; or
(iv) to modify, eliminate or add to the provisions of this
Pass Through Trust Agreement to such extent as shall be necessary to
continue the qualification of this Pass Through Trust Agreement (including
any supplemental agreement) under the Trust Indenture Act, or under any
similar Federal statute hereafter enacted, and to add to this Pass Through
Trust Agreement 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 at the date as
of which this instrument was executed or any corresponding provision in
any similar Federal statute hereafter enacted.
SECTION 9.2. Supplements to Pass Through Trust Agreement with
Consent of Certificateholders. With the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest, by Act of such Certificateholders delivered to
the Company and the Pass Through Trustee, the Company may (with the consent of
the Owner Trustee, if any, such consent not to be unreasonably withheld), and
the Pass Through Trustee (subject to Section 9.3) shall, 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
Trust Agreement or of modifying in any manner the rights and obligations of the
Certificateholders under this Pass Through Trust Agreement; provided, however,
that no such supplemental agreement shall, without the consent of each
Certificateholder of an Outstanding Certificate affected thereby:
(i) reduce in any manner the amount of, or delay the timing
of, any receipt by the Pass Through Trustee of payments on the Equipment
Notes held in the Pass Through Trust or distributions that are required to
be made herein on any Certificate, or change any date of payment on any
Certificate, or change the place of payment where, or the coin or currency
in which, any Certificate is payable, or impair the right to institute
suit for the enforcement of any such payment or distribution on or after
the Regular Distribution Date or Special Distribution Date applicable
thereto;
(ii) permit the disposition of any Equipment Note in the Trust
Property except as permitted by this Pass Through Trust Agreement, or
otherwise deprive any Certificateholder of the beneficial ownership of the
Equipment Notes in the Pass Through Trust;
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(iii) reduce the percentage of the aggregate Fractional
Undivided Interests of the Pass Through Trust required for any such
supplemental agreement, or reduce such percentage required for any waiver
(of compliance with certain provisions of this Pass Through Trust
Agreement or certain defaults hereunder and their consequences) provided
or in this Pass Through Trust Agreement; or
(iv) modify any of the provisions of this Section or Section
6.5, except to increase any such percentage or to provide that certain
other provisions of this Pass Through Trust Agreement cannot be modified
or waived without the consent of the Certificateholder of each Certificate
affected thereby.
It shall not be necessary for any Act of Certificateholders under
this Section to approve the particular form of any proposed supplemental
agreement, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 9.3. Documents Affecting Immunity or Indemnity. If in the
opinion of the Pass Through Trustee any document required to be executed by it
pursuant to the terms of Section 9.1 or 9.2 affects any interest, right, duty,
obligation, immunity or indemnity in favor of the Pass Through Trustee under
this Pass Through Trust Agreement, the Pass Through Trustee may in its
discretion decline to execute such document.
SECTION 9.4. Execution of Supplements to Pass Through Trust
Agreements. In executing, or accepting the additional trusts created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the trusts created by this Pass Through Trust Agreement, the Pass Through
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
agreement is authorized or permitted by this Pass Through Trust Agreement.
SECTION 9.5. Effect of Supplements to Pass Through Trust Agreement.
Upon the execution of any supplemental agreement under this Article, this Pass
Through Trust Agreement shall be modified in accordance therewith, and such
supplemental agreement shall form a part of this Pass Through Trust Agreement
for all purposes; and every Certificateholder of Certificates theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.6. Conformity with Trust Indenture Act. Every supplemental
agreement executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 9.7. Reference in Certificates to Supplements to Pass
Through Trust Agreements. Certificates authenticated and delivered after the
execution of any supplemental agreement pursuant to this Article may bear a
notation in form approved by the Pass Through Trustee as to any matter provided
for in such supplemental agreement, and, in such case,
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suitable notation may be made upon Outstanding Certificates after proper
presentation and demand.
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
SECTION 10.1. Amendments and Supplements to Indenture and Other Note
Documents. In the event that the Pass Through Trustee, as holder of any
Equipment Note in trust for the benefit of the Certificateholders, receives a
request for a consent to any amendment, modification, waiver or supplement under
the Indenture or other Note Document or the Participation Agreement, the Pass
Through Trustee shall forthwith send a notice of such proposed amendment
modification, waiver or supplement, to each Certificateholder registered on the
Register as of such date. The Pass Through Trustee shall request from the
Certificateholders Directions as to (a) whether or not to direct the Indenture
Trustee to take or refrain from taking any action which a holder of such
Equipment Note has the option to direct, (b) whether or not to give or execute
any waivers, consents, amendments, modifications or supplements as a holder of
such Equipment Note and (c) how to vote any Equipment Note if a vote has been
called for with respect thereto. Provided such a request for Certificateholder
Direction shall have been made, in directing any action or casting any vote or
giving any consent as the holder of any Equipment Note, the Pass Through Trustee
shall vote or consent with respect to such Equipment Note in the same proportion
as the Certificates were actually voted by Acts of Certificateholders delivered
to the Pass Through Trustee prior to two Business Days before the Pass Through
Trustee directs such action or casts such vote or gives such consent.
Notwithstanding the foregoing, but subject to Section 6.4, in the case that an
Event of Default hereunder shall have occurred and be continuing, the Pass
Through Trustee may, in its own discretion and at its own direction, consent and
notify the Indenture Trustee of such consent to any amendment, modification,
waiver or supplement under the Indenture or other Note Document or the
Participation Agreement.
ARTICLE XI
TERMINATION OF TRUST
SECTION 11.1. Termination of the Pass Through Trust. The respective
obligations and responsibilities of the Company and the Pass Through Trustee
created hereby and the Pass Through Trust created hereby shall terminate upon
the distribution to all Certificateholders and the Pass Through Trustee of all
amounts required to be distributed to them pursuant to this Pass Through Trust
Agreement and the disposition of all property held as part of the Trust
Property; provided, however, that in no event shall the trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the
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descendants of Xxxx X. Xxxxxxxxxxx, father of Xxxxxx Xxxxxxxxxxx, former Vice
President of the United States, living on the date of this Pass Through Trust
Agreement.
Notice of any termination, specifying the Regular Distribution Date
(or Special Distribution Date, as the case may be) upon which the
Certificateholders may surrender their Certificates to the Pass Through Trustee
for payment of the final distribution and cancellation, shall be mailed promptly
by the Pass Through Trustee to Certificateholders not earlier than the 60th day
and not later than the 20th day next preceding such final distribution,
specifying (a) the Regular Distribution Date (or Special Distribution Date, as
the case may be) upon which the proposed final payment of the Certificates will
be made upon presentation and surrender of Certificates at the office or agency
of the Pass Through Trustee therein specified, (b) the amount of any such
proposed final payment, and (c) that the Record Date otherwise applicable to
such Regular Distribution Date (or Special Distribution Date, as the case may
be) is not applicable, payments being made only upon presentation and surrender
of the Certificates at the office or agency of the Pass Through Trustee therein
specified. The Pass Through Trustee shall give such notice to the Registrar at
the time such notice is given to Certificateholders. Upon presentation and
surrender of the Certificates, the Pass Through Trustee shall cause to be
distributed to Certificateholders amounts distributable on such Regular
Distribution Date (or Special Distribution Date, as the case may be) pursuant to
Section 4.2.
In the event that all of the Certificateholders 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 to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. In the event that any money held by the Pass Through Trustee for the
payment of distributions on the Certificates shall remain unclaimed for two
years and 11 months after the final distribution date with respect thereto, the
Pass Through Trustee shall pay to the Indenture Trustee the appropriate amount
of money relating to the Indenture Trustee and shall give written notice thereof
to the Owner Trustee and the Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.1. Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this Pass
Through Trust Agreement or the 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 the Pass Through Trust, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
SECTION 12.2. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Pass
Through Trust, the Fractional
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Undivided Interests represented by the Certificates shall be nonassessable for
any losses or expenses of the Pass Through Trust or for any reason whatsoever,
and Certificates upon authentication thereof by the Pass Through Trustee
pursuant to Section 3.2 are and shall be deemed fully paid. No Certificateholder
shall have any right (except as expressly provided herein) to vote or in any
manner otherwise control the operation and management of the Trust Property, the
Pass Through Trust established hereunder, or the obligations of the parties
hereto, nor shall anything set forth herein, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association.
SECTION 12.3. Notices.
(a) Unless otherwise expressly specified or permitted by the terms
hereof, all communications and notices provided for herein shall be in writing,
and any such notice shall become effective (i) upon personal delivery thereof,
including, without limitation by overnight mail and courier service, (ii) in the
case of notice by United States mail, certified or registered, postage prepaid,
return receipt requested, three days after being so deposited in the United
States mail, or (iii) in the case of notice by facsimile transmission, upon
transmission thereof, provided such transmission is promptly confirmed (which
conformation may be mechanical), in each case addressed to each party here to at
the addresses set forth below:
if to the Company, to:
Union Tank Car Company
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Secretary
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxx Xxxxxx & Xxxxxxxxx
0 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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if to the Pass Through Trustee, to:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Indenture Trust Administration
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(b) The Company and the Pass Through Trustee, by notice to the other
parties, may designate additional or different addresses for subsequent notices
or communications.
(c) Any notice or communication to Certificateholders shall be
mailed by first-class mail to the addresses for Certificateholders shown on the
Register kept by the Registrar and to addresses filed with the Pass Through
Trustee for Certificate Owners. Failure so to mail a notice or communication or
any defect in such notice or communication shall not affect its sufficiency with
respect to other Certificateholders.
(d) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is conclusively presumed to have been duly
given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to the
Certificateholders, it shall mail a copy to the Pass Through Trustee and to each
Paying Agent at the same time.
(f) Notwithstanding the foregoing, all communications or notices to
the Pass Through Trustee shall be deemed to be given only when received by a
Responsible Officer of the Pass Through Trustee.
(g) The Pass Through Trustee shall promptly furnish the Company with
a copy of any demand, notice or written communication received by the Pass
Through Trustee hereunder from any Certificateholder, the Owner Trustee or the
Indenture Trustee.
SECTION 12.4. Communication by Certificateholder with Other
Certificateholders. Certificateholders may communicate pursuant to Section
312(b) of the Trust Indenture Act with other Certificateholders with respect to
their rights under this Pass Through Trust Agreement or under the Certificates,
and the Pass Through Trustee shall comply with Section 312(b) of the Trust
Indenture Act. The Company and the Pass Through Trustee shall have the
protection of Section 312(c) of the Trust Indenture Act.
SECTION 12.5. Governing Law. THIS PASS THROUGH TRUST AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OF CONFLICT OF LAW PROVISION
OR RULE AND THE
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OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
SECTION 12.6. Severability of Provisions. Whenever possible, each
provision of this Pass Through Trust Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Pass Through Trust Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Pass Through Trust Agreement.
SECTION 12.7. Trust Indenture Act Controls. This Agreement is
subject to the provisions of the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions.
SECTION 12.8. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 12.9. Successors and Assigns. All covenants, agreements,
representations and warranties in this Pass Through Trust Agreement by the Pass
Through Trustee, the Company shall bind and, to the extent permitted hereby,
shall inure to the benefit of and be enforceable by their respective successors
and assigns, whether so expressed or not.
SECTION 12.10. Benefits of Pass Through Trust Agreement. Nothing in
this Pass Through Trust Agreement or in the Certificates, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, and the Certificateholders, any benefit or any legal or equitable
right, remedy or claim under this Pass Through Trust Agreement.
SECTION 12.11. Legal Holidays. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate shall
not be a Business Day, then (notwithstanding any other provision of this Pass
Through Trust Agreement) payment 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
such Regular Distribution Date or Special Distribution Date, and no interest
shall accrue during the intervening period.
SECTION 12.12. Counterparts. For the purpose of facilitating the
execution of this Pass Through Trust Agreement and for other purposes, this Pass
Through Trust Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
all of which counterparts shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Pass Through Trustee have caused
this Pass Through Trust Agreement to be duly executed by their respective
officers, duly attested, all as of the day and year first above written.
UNION TANK CAR COMPANY
Attest: By /s/ Xxxx X. Xxxxxxxx
-------------------------------
Title: Vice President
/s/ Xxxxxx X. Xxxx
-------------------------------
Title: Secretary
XXXXXX TRUST AND SAVINGS BANK,
as Pass Through Trustee
Attest: By /s/ X. Xxxxxxxxx
-------------------------------
Title: Vice President
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Title: Assistant Secretary
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EXHIBIT A
FORM OF CERTIFICATE
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to issuer or
its agent for registration of 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 HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch the registered owner hereof,
Cede & Co., has an interest herein.
UNION TANK CAR COMPANY 0000-X XXXX XXXXXXX XXXXX
Xxxx Through Certificate,
Series 1998-A
Final Distribution Date: January 2, 2014
evidencing a fractional undivided interest in a trust, the property of
which includes certain equipment notes each secured by equipment leased
to Union Tank Car Company.
Certificate
No. ___ $97,852,000 Fractional Undivided Interest
representing 100% of the Trust
THIS CERTIFIES THAT Cede & Co., for value received, is the
registered owner of a $97,852,000 (Ninety Seven Million Eight Hundred Fifty Two
Thousand dollar) Fractional Undivided Interest in the Union Tank Car Company
1998-A Pass Through Trust (the "Trust") created by Xxxxxx Trust and Savings
Bank, an Illinois banking corporation, as trustee (the "Pass Through Trustee"),
pursuant to a Pass Through Trust Agreement 1998-A dated as of March 18, 1998
(the "Pass Through Trust Agreement") between the Pass Through Trustee and Union
Tank Car Company, 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 Trust Agreement. This Certificate is one of
the duly authorized Certificates designated as "Pass Through Certificates,
Series 1998-A" (herein called the "Certificates"). This Certificate is issued
under and is subject to the terms, provisions, and conditions of the Pass
Through Trust Agreement, to which Pass Through Trust Agreement the
Certificateholder of this Certificate by virtue of the acceptance hereof assents
and by which such Certificateholder is bound. The property of the Pass Through
Trust (the "Trust Property")
57
includes certain Equipment Notes. Each issue of Equipment Notes is secured by,
among other things, a security interest in Equipment leased to the Company.
Subject to and in accordance with the terms of the Pass Through
Trust Agreement, from funds then available to the Pass Through Trustee, there
will be distributed on January 2 and July 2 of each year (each a "Regular
Distribution Date"), commencing on July 2, 1998, to the Person in whose name
this Certificate is registered at the close of business on the Business Day
preceding the Regular Distribution Date, an amount in respect of the Scheduled
Payments on the Equipment Notes due on such Regular Distribution Date, the
receipt of which has been confirmed by the Pass Through Trustee, equal to the
product of the percentage interest in the Pass Through Trust evidenced by this
Certificate and an amount equal to the sum of such Scheduled Payments. Subject
to and in accordance with the terms of the Pass Through Trust Agreement, in the
event that Special Payments on the Equipment Notes 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 Certificate is registered at the close of business on the
Business Day preceding the Special Distribution Date, an amount in respect of
such Special Payments on the Equipment Notes, the receipt of which has been
confirmed by the Pass Through Trustee, equal to the product of the percentage
interest in the Pass Through Trust evidenced by this Certificate and an amount
equal to the sum of such Special Payments so received. If a Regular Distribution
Date or Special 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 Regular Distribution Date or Special Distribution Date and no
interest shall accrue during the intervening period. The Special Distribution
Date shall be the second day of the month, or such other date, if any,
determined as provided in the Pass Through Trust Agreement. The Pass Through
Trustee shall mail notice of each Special Payment and the Special Distribution
Date therefor to the Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Pass Through
Trustee by wire transfer of funds to the Person entitled thereto, without the
presentation or surrender of this Certificate or the making of any notation
hereon, provided, however, that in the event Certificates are issued in the form
of Registered Certificates, distributions on this Certificate will be made by
check mailed to the Person entitled thereto. Except as otherwise provided in the
Pass Through Trust Agreement and notwithstanding the above, the final
distribution on this 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 Certificate at the office or agency of the Pass Through
Trustee specified in such notice.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF ILLINOIS.
Reference is hereby made to the further provisions of this
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.
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58
Unless the certificate of authentication hereon has been executed by
the Pass Through Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Pass Through Trust Agreement or be valid for
any purpose.
IN WITNESS WHEREOF, the Pass Through Trustee has caused this
Certificate to be duly executed.
UNION TANK CAR COMPANY
1998-A PASS THROUGH TRUST
By: XXXXXX TRUST AND SAVINGS BANK,
as Pass Through Trustee
By:____________________________________
Title:
A-3
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[Reverse of Certificate]
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in the Company, the Pass Through
Trustee, in its individual or trust capacities, any Owner Participant, any Owner
Trustee in its individual capacity, or any affiliate of any thereof. The
Certificates are limited in right of payment, all as more specifically set forth
on the face hereof and in the Pass Through Trust Agreement. All payments or
distributions made to Certificateholders under the Pass Through Trust 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 Trust
Agreement. Each Certificateholder of this 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 Trust Agreement. This Certificate does not purport
to summarize the Pass Through Trust Agreement and reference is made to the Pass
Through Trust Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds, and duties evidenced hereby. A copy of the Pass
Through Trust Agreement may be examined during normal business hours at the
principal office of the Pass Through Trustee, and at such other places, if any,
designated by the Pass Through Trustee, by any Certificateholder upon request.
The Pass Through Trust Agreement permits, with certain exceptions
therein provided, 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 Agreement at any time by the Company and the Pass Through
Trustee with the consent of the Certificateholders holding Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Pass Through Trust. Any such consent by the Certificateholder
of this Certificate shall be conclusive and binding on such Certificateholder
and upon all future Certificateholders of this Certificate and of any
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 Certificate.
The Pass Through Trust Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Certificateholders of any of
the Certificates.
As provided in the Pass Through Trust Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Register upon surrender of this Certificate for registration
of transfer at the offices or agencies maintained by the Pass Through Trustee in
its capacity as Registrar, or by any successor Registrar, in the Borough of
Manhattan, the City of New York, 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 Certificates of authorized denominations evidencing
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the same aggregate Fractional Undivided Interest in the Pass Through Trust will
be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $1,000 and $1,000 integral multiples
thereof, except that one Certificate may be in a denomination of less than
$1,000. As provided in the Pass Through Trust Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
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 shall 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
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
Trust Agreement 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 Trust Agreement and the disposition of all
property held as part of the Trust Property.
A-5
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[FORM OF THE PASS THROUGH TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
This is one of the Certificates referred to in the within-mentioned
Pass Through Trust Agreement.
XXXXXX TRUST AND SAVINGS BANK,
as Pass Through Trustee
By:_____________________________
Authorized Officer
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62
EXHIBIT B
FORM OF
LETTER OF REPRESENTATIONS
63
SCHEDULE I
================================================================================
Equipment Notes
Issued under Principal
Indenture: Amount Maturity
--------------------------------------------------------------------------------
On the Issuance Date $0 N/A
--------------------------------------------------------------------------------
Subsequent to the Issuance Date $96,325,000 January 2, 2014
--------------------------------------------------------------------------------
Total $96,325,000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
64
Reconciliation and tie between Pass Through Trust Agreement 1998-A dated as of
March 18, 1998 and the Trust Indenture Act of 1939. This reconciliation does not
constitute part of the Pass Through Trust Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
--------------- -----------------
310(a)(1)............................................. 7.8
(2)............................................. 7.8
(3)............................................. Inapplicable
(4)............................................. 6.2; 6.3 (a) & (b)
(b) ............................................. 7.8; 7.9; 7.10
(c) ............................................. Inapplicable
311(a) ............................................. 7.18
(b) ............................................. 7.18
(c) ............................................. Inapplicable
312(a) ............................................. 3.9; 8.1; 8.2
(b) ............................................. 12.4
(c) ............................................. 12.4
313 ............................................. 8.3
314(a) ............................................. 8.4
(b) ............................................. Inapplicable
(c)(1)............................................. 1.2
(2)............................................. 1.2
(3)............................................. Inapplicable
(d)(1)............................................. Inapplicable
(2) ............................................ Inapplicable
(3) ............................................ Inapplicable
(e) ............................................. 1.2
315(a) ............................................. 7.1(a)
(b) ............................................. 7.2
(c) ............................................. 7.1(b)
(d) ............................................. 7.1(c)
(e) ............................................. 6.6
316(a)(last sentence)................................. 1.4(c)
(1)(A).......................................... 6.4
(B).......................................... 6.5
(2)............................................. Inapplicable
(b) ............................................. 6.7
(c) ............................................. 1.4(d)
317(a)(1)............................................. 6.3(a)
(2)............................................. 6.3(b)
(b) ............................................. 7.13
318(a) ............................................. 12.7
65
TABLE OF CONTENTS TO PASS THROUGH TRUST AGREEMENT 1998-A1
Section Page
Exhibit A - Form of Certificate
Exhibit B - Form of Letter of Representations
Schedule I - Description of Equipment Notes to be Purchased
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