EXHIBIT 4.4(a)
SOUTHERN ENERGY MID-ATLANTIC, LLC
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Pass Through Trustee
________________________________________________________________________________
PASS THROUGH TRUST AGREEMENT A
Dated as of December 18, 2000
________________________________________________________________________________
$454,000,000
SOUTHERN ENERGY MID-ATLANTIC Series A Pass Through Trust
8.625% Initial Pass Through Certificates, Series A
8.625% Exchange Pass Through Certificates, Series A
PASS THROUGH TRUST AGREEMENT A
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TABLE OF CONTENTS
Article I DEFINITIONS.............................................................. 2
Section 1.1 Definitions.............................................................. 2
Section 1.2 Compliance Certificates and Opinions..................................... 13
Section 1.3 Form of Documents Delivered to Pass Through Trustee...................... 14
Section 1.4 Acts of Holders.......................................................... 14
Article II ACQUISITION OF LESSOR NOTES; ORIGINAL ISSUANCE OF CERTIFICATES........... 16
Section 2.1 Issuance of Certificates; Acquisition of Lessor Notes.................... 16
Section 2.2 Acceptance by Pass Through Trustee....................................... 18
Section 2.3 Limitation of Powers..................................................... 19
Article III THE CERTIFICATES......................................................... 19
Section 3.1 Form, Denomination and Execution of Certificates......................... 19
Section 3.2 Authentication of Certificates........................................... 20
Section 3.3 Temporary Certificates................................................... 21
Section 3.4 Registration of Transfer and Exchange of Certificates.................... 21
Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates........................ 23
Section 3.6 Persons Deemed Owners.................................................... 24
Section 3.7 Cancellation............................................................. 24
Section 3.8 Limitation of Liability for Payments..................................... 24
Section 3.9 Book Entry and Definitive Certificates................................... 24
Section 3.10 Form of Certification.................................................... 29
Article IV DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS.......................... 29
Section 4.1 Certificate Account and Special Payments Account......................... 29
Section 4.2 Distributions from Certificate Account and Special Payments Account...... 30
Section 4.3 Statements to Certificateholders......................................... 32
Section 4.4 Investment of Special Payment Moneys..................................... 32
Section 4.5 Adjustment of Interest Rates Applicable to Certificates.................. 33
Article V THE COMPANY.............................................................. 33
Section 5.1 Reports.................................................................. 33
Article VI DEFAULT.................................................................. 34
Section 6.1 Events of Default........................................................ 34
Section 6.2 Incidents of Sale of Lessor Notes........................................ 35
Section 6.3 Judicial Proceedings instituted by Pass Through Trustee.................. 36
PASS THROUGH TRUST AGREEMENT A
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i
Section 6.4 Control by Certificateholders............................................ 36
Section 6.5 Waiver of Defaults....................................................... 37
Section 6.6 Undertaking to Pay Court Costs........................................... 38
Section 6.7 Right of Certificateholders to Receive Payments Not to Be Impaired....... 38
Section 6.8 Certificateholders May Not Bring Suit Except Under Certain Conditions.... 39
Section 6.9 Remedies Cumulative...................................................... 39
Article VII THE PASS THROUGH TRUSTEE................................................. 40
Section 7.1 Certain Duties and Responsibilities...................................... 40
Section 7.2 Notice of Defaults....................................................... 41
Section 7.3 Certain Rights of Pass Through Trustee.................................. 41
Section 7.4 Not Responsible for Recitals; Issuance of Certificates................... 43
Section 7.5 May Hold Certificates.................................................... 43
Section 7.6 Money Held in Pass Through Trust......................................... 43
Section 7.7 Compensation, Reimbursement and Indemnification.......................... 43
Section 7.8 Corporate Trustee Required; Eligibility.................................. 44
Section 7.9 Resignation and Removal; Appointment of Successor........................ 44
Section 7.10 Acceptance of Appointment by Successor................................... 46
Section 7.11 Merger, Conversion, Consolidation or Succession to Business.............. 47
Section 7.12 Maintenance of Agencies.................................................. 47
Section 7.13 Money for Certificate Payments to Be Held in Trust....................... 49
Section 7.14 Registration of Lessor Notes in Pass Through Trustee's Name.............. 49
Section 7.15 Withholding Taxes; Information Reporting................................. 50
Section 7.16 Pass Through Trustee's Liens............................................. 50
Section 7.17 Preferential Collection of Claims........................................ 50
Article VIII CERTIFICATEHOLDERS' LISTS AND REPORTS.................................... 51
Section 8.1 The Company to Furnish Pass Through Trustee with Names and Addresses
of Certificateholders................................................... 51
Section 8.2 Preservation of Information.............................................. 51
Section 8.3 Records by the Company................................................... 51
Section 8.4 Reports by the Pass Through Trustee...................................... 51
Article IX SUPPLEMENTAL TRUST AGREEMENTS............................................ 52
Section 9.1 Supplemental Trust Agreement Without Consent of Certificateholder........ 52
Section 9.2 Supplemental Trust Agreements with Consent of Certificateholders......... 53
Section 9.3 Documents Affecting Immunity or Indemnity................................ 54
Section 9.4 Execution of Supplemental Trust Agreements............................... 54
Section 9.5 Effect of Supplemental Trust Agreements.................................. 55
PASS THROUGH TRUST AGREEMENT A
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ii
Section 9.6 Reference in Certificates to Supplemental Trust Agreements................... 55
Article X AMENDMENTS TO LEASE INDENTURES AND OTHER LEASE FINANCING DOCUMENTS........... 55
Section 10.1 Amendment and Supplements to Lease Indenture and Other Operative Documents... 55
Article XI TERMINATION OF PASS THROUGH TRUST............................................ 56
Section 11.1 Termination of the Pass Through Trust........................................ 56
Article XII MISCELLANEOUS PROVISIONS..................................................... 58
Section 12.1 Limitation on Rights of Certificateholders................................... 58
Section 12.2 Certificates Nonassessable and Fully Paid.................................... 58
Section 12.3 Notice....................................................................... 58
Section 12.4 Governing Law................................................................ 59
Section 12.5 Severability of Provisions................................................... 59
Section 12.6 Trust Indenture Act Controls................................................. 59
Section 12.7 Effect of Heading and Table of Contents...................................... 59
Section 12.8 Successors and Assigns....................................................... 59
Section 12.9 Benefits of Pass Through Trust Agreement..................................... 59
Section 12.10 Legal Holidays............................................................... 60
Section 12.11 Counterparts................................................................. 60
SCHEDULE 1 - Participation Agreements.......................................................... 62
EXHIBIT A - Form of Pass Through Certificate.................................................. 66
EXHIBIT B - Form of Pass Through Trustee's Certificate of Authentication...................... 73
EXHIBIT C - Form of Transfer Certificate...................................................... 74
EXHIBIT D - Form of Purchase Letter for Institutional Accredited Investors.................... 76
PASS THROUGH TRUST AGREEMENT A
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iii
PASS THROUGH TRUST AGREEMENT A, dated as of December 18, 2000, with
respect to the formation of the Southern Energy Mid-Atlantic Series A Pass
Through Trust, between Southern Energy Mid-Atlantic, LLC, a Delaware limited
liability company, and State Street Bank and Trust Company of Connecticut,
National Association, a national banking association, as Pass Through Trustee.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, each of the Morgantown Lessors has purchased a separate
Morgantown Undivided Interest from the Company and is leasing such interest to
the Company pursuant to a Lease Transaction (as such terms and certain other
capitalized terms used herein are defined below);
WHEREAS, each of the Dickerson Lessors has purchased a separate
Dickerson Undivided Interest from the Company and is leasing such interest to
the Company pursuant to a Lease Transaction;
WHEREAS, pursuant to each Lease Transaction, each Owner Lessor will
issue, on a non-recourse basis, Lessor Notes under a Lease Indenture in order to
finance and refinance a portion of the purchase price for the related Undivided
Interest purchased by such Owner Lessor;
WHEREAS, pursuant to the terms and conditions of this Pass Through
Trust Agreement and the Participation Agreements relating to the Lease
Transactions, Lessor Notes are to be sold to the Pass Through Trust by each
Owner Lessor, and the Pass Through Trust will purchase such Lessor Notes and
will hold such Lessor Notes in trust for the benefit of the Certificateholders;
WHEREAS, the Pass Through Trustee, upon the 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 and 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 sale of the Lessor Notes to the Pass
Through Trust and the purchase of the Lessor Notes by the Pass Through Trust,
the Company has duly authorized the execution, delivery and effectiveness of
this Pass Through Trust Agreement as the "issuer", as such term is defined in
and solely for purposes of the Securities Act of 1933, as amended (the
"Securities Act"), of the Certificates deemed to be issued pursuant hereto and
as the "obligor", as such term is defined in and solely for purposes of the
Trust Indenture Act of 1939, as amended from time to time (the "Trust Indenture
Act"), with respect to all such Certificates and is undertaking to perform
certain
PASS THROUGH TRUST AGREEMENT A
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administrative and ministerial duties hereunder and is also undertaking to pay
the fees and expenses of the Pass Through Trustee; and
WHEREAS, upon issuance of the Exchange Certificates, if any, or the
effectiveness of the Shelf Registration Statement, this Agreement, as amended or
supplemented from time to time, will be subject to the provisions of the Trust
Indenture Act, and shall, to the extent applicable, be governed by such
provisions.
NOW, THEREFORE,
In consideration of the foregoing premises, the mutual agreements
herein contained, and of the 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.
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(a) Capitalized terms used in this Pass Through Trust Agreement,
including the recitals, and not otherwise defined herein shall have the
respective meanings set forth in Appendix A to the applicable Participation
Agreement, unless the context hereof shall otherwise require. The general
provisions of Appendix A to such Participation Agreement shall apply to the
terms used in this Pass Through Trust Agreement and specifically defined herein.
(b) As used in this Pass Through Trust Agreement, the following terms
shall have the respective meanings assigned thereto as follows:
Act: When used with respect to any Holder, has the meaning specified
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in Section 1.4.
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Authorized Agent: Means any Paying Agent or Registrar.
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Avoidable Tax: Has the meaning specified in Section 7.9(e).
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Book-Entry Certificates: Means a beneficial interest in the
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Certificates, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 3.9.
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PASS THROUGH TRUST AGREEMENT A
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Certificate: Means any one of the Initial Certificates or Exchange
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Certificates that are Outstanding as of the Issuance Date and any such Initial
Certificates or Exchange Certificates issued in exchange therefor or replacement
thereof pursuant to this Pass Through Trust Agreement.
Certificate Account: Means that account or accounts created and
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maintained pursuant to Section 4.1(a).
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Certificate Owner: Means for purposes of Section 3.9, the Person who
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owns a Book-Entry Certificate.
Certificate Owner Request: Means a request to the Pass Through
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Trustee to receive the reports and other information the Company or any other
Person is required to furnish to the Pass Through Trustee pursuant to the
Operative Documents, which request certifies that the Person making the request
is a Certificateholder or Certificate Owner. Any Certificateholder or
Certificate Owner making a Certificate Owner Request may specify its election to
receive such information from the Pass Through Trustee on an ongoing basis.
Certificateholder or Holder: Means the Person in whose name a
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Certificate is registered in the Register, except that, when used in Section
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3.9, such term means the Certificate Owners.
Clearing Agency: Means an organization registered as a clearing
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agency pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
Clearing Agency Participant: Means a broker, dealer, bank, other
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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.
Clearstream: Has the meaning specified in Section 3.9
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Commission: Means the Securities and Exchange Commission, as from
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time to time constituted, created under the Securities Exchange Act of 1934 as
amended, or any successor body.
Company: Means Southern Energy Mid-Atlantic, LLC, a Delaware limited
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liability company, or its successor in interest.
Consideration: Has the meaning specified in Section 2.1(a).
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Corporate Trust Office: With respect the Pass Through Trustee, any
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Owner Manager and any Lease Indenture Trustee, means the office of such trustee
or
PASS THROUGH TRUST AGREEMENT A
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3
manager, as the case may be in the city in which at any particular time its
corporate trust business shall be principally administered.
Cut-Off Date: Means June 10, 2001.
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Default: Means any event which is or, after notice or lapse of time
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or both would become, an Event of Default.
Definitive Certificates: Has the meaning specified in Section 3.9.
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Dickerson Facility: Means the Dickerson Base-Load Units 1, 2 and 3,
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546 MW net coal-fired electric generating units located in Upper Montgomery
County, Maryland.
Dickerson Lessor: Means one or more, as the context may require, of
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Dickerson Lessor 1, Dickerson Lessor 2, Dickerson Lessor 3 and Dickerson Lessor
4.
Dickerson Lessor 1: Means Dickerson OL1 LLC, a Delaware limited
------------------
liability company, and any successors and assigns permitted by the applicable
Participation Agreement.
Dickerson Lessor 2: Means Dickerson OL2 LLC, a Delaware limited
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liability company, and any successors and assigns permitted by the applicable
Participation Agreement.
Dickerson Lessor 3: Means Dickerson OL3 LLC, a Delaware limited
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liability company, and any successors and assigns permitted by the applicable
Participation Agreement.
Dickerson Lessor 4: Means Dickerson OL4 LLC, a Delaware limited
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liability company, and any successors and assigns permitted by the applicable
Participation Agreement.
Dickerson Undivided Interest: Means, as the context may require, the
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63.3% undivided ownership interest of Dickerson Lessor 1 in the Dickerson
Facility, the 8.3% undivided ownership interest of Dickerson Lessor 2 in the
Dickerson Facility, the 8.4% undivided ownership interest of Dickerson Lessor 3
in the Dickerson Facility and the 20.0% undivided ownership interest of
Dickerson Lessor 4 in the Dickerson Facility.
Direction: Has the meaning specified in Section 1.4(c).
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Distribution Date: With respect to distributions of Scheduled
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Payments, means each June 30 and December 30 of each year until payment of all
the Scheduled
PASS THROUGH TRUST AGREEMENT A
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4
Payments to be made under the applicable Lessor Notes has been made, commencing
on June 30, 2001.
DTC: Means The Depository Trust Company and any successor that is a
---
Clearing Agency.
Escrow Account: Has the meaning specified in Section 2.1(b).
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Escrowed Funds: Has the meaning specified in Section 2.1(b).
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Euroclear: Has the meaning specified in Section 3.9.
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Event of Default: Has the meaning specified in Section 6.1.
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Exchange Act: Has the meaning specified in Section 5.1.
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Exchange Certificates: Means the pass through certificates issued in
---------------------
exchange for the Initial Certificates pursuant to the Registration Rights
Agreement and authenticated under the this Pass Through Trust Agreement.
Exchange Offer: Means the exchange offer which may be made pursuant
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to the Registration Rights Agreement to exchange Initial Certificates for
Exchange Certificates.
Exchange Offer Registration Statement: Means the registration
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statement that, pursuant to the Registration Rights Agreement, is filed by the
Company with the Commission with respect to the exchange of Initial Certificates
for Exchange Certificates and the Other Certificates.
Facility: Means the Morgantown Facility or the Dickerson Facility as
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the context requires.
Fractional Undivided Interest: Means the fractional undivided
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interest in the Pass Through Trust that is evidenced by a Certificate.
Global Exchange Certificate: Has the meaning specified in Section
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3.9.
Holder: See Certificateholder.
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Initial Certificates: Means the "Initial Certificates" issued and
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authenticated under this Pass Through Trust Agreement, and any certificates
issued and authenticated hereunder substantially in the form of Exhibit A
thereto, other than the Exchange Certificates.
PASS THROUGH TRUST AGREEMENT A
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5
Institutional Accredited Investor: Means an institutional "accredited
---------------------------------
investor," as such term is defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
Issuance Date: December 18, 2000.
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Lease: Means a facility lease agreement between an Owner Lessor, as
-----
the lessor, and the Company, as the lessee, entered into in connection with a
Lease Transaction, as such facility lease agreement may be amended or
supplemented in accordance with its terms.
Lease Event of Default: Means any Lease Event of Default (as such
----------------------
term is defined in the applicable Lease).
Lease Financing Documents: Means, with respect to any Lease
-------------------------
Transaction, the Pass Through Trust Agreements and the applicable Lease
Indenture, the Lessor Notes, Certificates and other agreements, documents and
instruments delivered in connection with such Lease Transaction.
Lease Indenture: Means (i) an Indenture of Trust, Mortgage and
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Security Agreement between an Owner Lessor and a Lease Indenture Trustee,
entered into in connection with a Lease Transaction and in the form provided in
the applicable Participation Agreement, as the same may be amended or
supplemented in accordance with its terms and (ii) any Indenture of Trust,
Mortgage and Security Agreement, or analogous document, between the Company and
a Lease Indenture Trustee, entered into in connection with the assumption by the
Company of the indebtedness evidenced by any Lessor Note, as the same may be
amended or supplemented in accordance with its terms. The term Lease Indenture
refers to any one or all of such Lease Indentures, as the context requires.
Lease Indenture Default: Means any event which is, or after notice or
-----------------------
lapse of time or both would become, a Lease Indenture Event of Default.
Lease Indenture Event of Default: Means any Lease Indenture Event of
--------------------------------
Default (as such term is defined in an applicable Lease Indenture).
Lease Indenture Trustee: Means a bank or trust company acting as
-----------------------
indenture trustee under an applicable Lease Indenture; and any successor to such
Lease Indenture Trustee as such trustee.
Lease Transaction: Means a lease transaction in respect of an
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Undivided Interest between the Company and an Owner Lessor that is financed in
part by the issuance of Lessor Notes to the Pass Through Trustee, as
contemplated by the applicable Participation Agreement and the agreements and
instruments referred to therein.
PASS THROUGH TRUST AGREEMENT A
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6
Lessor Note: Means any one of the Series A Lessor Notes (as defined
-----------
in a Lease Indenture) issued under a Lease Indenture, including any lessor note
issued under the Lease Indenture in replacement or substitution therefor, held
by the Pass Through Trustee.
Letter of Representations: Means the agreement among the Company, the
-------------------------
Pass Through Trustee and the initial Clearing Agency.
Morgantown Facility: Means the Morgantown Base-Load Units 1 and 2,
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1.164 MW net coal-fired electric generating units located in Charles County,
Maryland.
Morgantown Lessor: Means one or more as the context may require of
-----------------
Morgantown Lessor 1, Morgantown Lessor 2, Morgantown Lessor 3, Morgantown Lessor
4, Morgantown Lessor 5, Morgantown Lessor 6 and Morgantown Lessor 7.
Morgantown Lessor 1: Means Morgantown OL1 LLC, a Delaware limited
-------------------
liability company, and any successors and assigns permitted by the applicable
Participation Agreement.
Morgantown Lessor 2: Means Morgantown OL2 LLC, a Delaware limited
-------------------
liability company, and any successors and assigns permitted by the applicable
Participation Agreement.
Morgantown Lessor 3: Means Morgantown OL3 LLC, a Delaware limited
-------------------
liability company, and any successors and assigns permitted by the applicable
Participation Agreement.
Morgantown Lessor 4: Means Morgantown OL4 LLC, a Delaware limited
-------------------
liability company, and any successors and assigns permitted by the applicable
Participation Agreement.
Morgantown Lessor 5: Means Morgantown OL5 LLC, a Delaware limited
-------------------
liability company, and any successors and assigns permitted by the applicable
Participation Agreement.
Morgantown Lessor 6: Means Morgantown OL6 LLC, a Delaware limited
-------------------
liability company, and any successors and assigns permitted by the applicable
Participation Agreement.
PASS THROUGH TRUST AGREEMENT A
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7
Morgantown Lessor 7: Means Morgantown OL7 LLC, a Delaware limited
-------------------
liability company, and any successors and assigns permitted by the applicable
Participation Agreement.
Morgantown Undivided Interest: Means, as the context may require, the
-----------------------------
35.0% undivided ownership interest of Morgantown Lessor 1 in the Morgantown
Facility, the 28.3% undivided ownership interest of Morgantown Lessor 2 in the
Morgantown Facility, the 8.3% undivided ownership interest of Morgantown Lessor
3 in the Morgantown Facility, the 8.4% undivided ownership interest of
Morgantown Lessor 4 in the Morgantown Facility, the 5.0% undivided ownership
interest of Morgantown Lessor 5 in the Morgantown Facility, the 6.7% undivided
ownership interest of Morgantown Lessor 6 in the Morgantown Facility, and the
8.3% undivided ownership interest of Morgantown Lessor 7 in the Morgantown
Facility.
Non-Global Purchasers: Has the meaning specified in Section 3.9.
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Opinion of Counsel: Means an opinion in writing signed by legal
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counsel, who may be counsel designated by the Company, an Owner Lessor or a
Lease Indenture Trustee, whether or not such counsel is an employee of any of
them, and who shall be acceptable to the Pass Through Trustee in its reasonable
discretion.
Other Certificates: Means the pass through trust certificates issued
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pursuant to the Other Pass Through Trust Agreements.
Other Pass Through Trustees: Means, as the context may require, the
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Pass Through Trustee pursuant to one or both of the Other Pass Through Trust
Agreements.
Other Pass Through Trust Agreement: Means, as the context may
----------------------------------
require, the Pass Through Trust Agreement B and/or the Pass Through Trust
Agreement C, each dated as of the date hereof.
Outstanding: When used with respect to Certificates, means, as of the
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date of determination, and subject to Section 1.4(c), all Certificates
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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;
(ii) Certificates for which money in the full amount has been
theretofore deposited with the Pass Through Trustee or any Paying Agent in
trust for the holders of such Certificates as provided in Section 4.1
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pending distribution of such money to the Certificateholders pursuant to
the final distribution payment to be made pursuant to Section 11.1; and
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PASS THROUGH TRUST AGREEMENT A
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8
(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 Lessors: Means one or more as the context may require of the
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Morgantown Lessors and the Dickerson Lessors.
Owner Manager: Means, initially, Wilmington Trust Company, a Delaware
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banking corporation, not in its individual capacity but solely as manager of
each of the Owner Lessors pursuant to the related Lessor LLC Agreement; and any
successor to such Owner Manager as such manager.
Owner Participant: Means one or more, as the context may require, of
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(i) SEMA OP1, (ii) SEMA OP2, (iii) SEMA OP3, (iv) SEMA OP4, (v) SEMA OP5, (vi)
SEMA OP6, (vii) SEMA OP7, (viii) SEMA OP8 and (ix) SEMA OP9 and any successors
and assigns permitted by the applicable Participation Agreement.
Participation Agreement: Means one or more as the context may require
-----------------------
of the related Participation Agreements enumerated in Schedule 1 hereto among
the Company, an Owner Participant, an Owner Lessor, an Owner Manager, a Lease
Indenture Trustee, and the Pass Through Trustee, providing for a Lease
Transaction.
Pass Through Trust: Means the trust created by this Pass Through
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Trust Agreement, the estate of which consists of the Trust Property.
Pass Through Trustees: Means, collectively, the Pass Through Trustee
---------------------
and Other Pass Through Trustees.
Paying Agent: Means the paying agent maintained and appointed
------------
pursuant to Section 7.12.
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Permanent Regulation S Global Certificate: Has the meaning specified
-----------------------------------------
in Section 3.9.
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Permitted Government Investment: Means obligations of the United
------------------------------
States of America for the payment of which the full faith and credit of the
United States of America is pledged, maturing in not more than 60 days or such
lesser time as is necessary for payment of any Special Payments on a Special
Distribution Date.
Postponement Notice: Means an Officer's Certificate of the Company (1)
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requesting that the Pass Through Trustee temporarily postpone the purchase of
the Lessor Notes to a date later than the Issuance Date, (2) identifying the
amount of the purchase
PASS THROUGH TRUST AGREEMENT A
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9
price of each Lessor Note and the aggregate purchase price of the Lessor Notes,
(3) setting forth the reasons for such postponement, and (4) either (a) setting
a Transfer Date (which shall be on or prior to the Cut-off Date) for payment by
the Pass Through Trustee of such purchase price and the issuance of the Lessor
Notes, or (b) indicating that the Transfer Date (which shall be on or prior to
the Cut-off Date) will be set by subsequent written notice not less than one
Business Day prior to such Transfer Date.
Purchase Agreement: Means the Purchase Agreement dated December 7,
------------------
2000 among the representative of the Initial Purchasers and the Company, as the
same may be implemented, supplemented or otherwise modified from time to time in
accordance with its terms.
Record Date: Means (i) for Scheduled Payments to be distributed on
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any Distribution Date, other than the final distribution, the day (whether or
not a Business Day) which is 15 days preceding such Distribution Date, and (ii)
for Special Payments to be distributed on any Special Distribution Date, other
than the final distribution, the day (whether or not a Business Day) which is 15
days preceding such Special Distribution Date.
Register and Registrar: Means the register maintained and the
----------------------
registrar appointed pursuant to Sections 3.4 and 7.12.
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Registration Default: Has the meaning specified in the Registration
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Rights Agreement.
Registration Rights Agreement: Means the Registration Rights
-----------------------------
Agreement dated as of December 18, 2000, among the representative of the Initial
Purchasers and the Company, as amended, supplemented or otherwise modified from
time to time in accordance with its terms.
Regulation S Global Certificate: Has the meaning specified in Section
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3.9.
- ---
Reporting Cessation: Has the meaning specified in Section 5.1.
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Request: Means a request by the Company setting forth the subject
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matter of the request accompanied by an Officer's Certificate and an Opinion of
Counsel as provided in Section 1.2.
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Required Holders: Means the Holders of Certificates evidencing
----------------
Fractional Undivided Interests aggregating not less than a majority in interest
of the Fractional Undivided Interests evidenced by all the Certificates at the
applicable time outstanding (determined as provided in Section 1.4(b)).
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PASS THROUGH TRUST AGREEMENT A
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10
Responsible Officer: When used with respect to the initial Pass
-------------------
Through Trustee, the initial Lease Indenture Trustee or any Owner Manager, means
any officer in the Corporate Trust Office having direct responsibility for the
administration of the Operative Documents; when used with respect to any
successor Pass Through Trustee, or successor Lease Indenture Trustee, means 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, and, when used with respect to the Pass Through Trustee
and any Lease Indenture Trustee, also means any other officer of the Pass
Through Trustee or any Lease Indenture Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, when used with respect to the Pass Through Trustee, any Lease Indenture
Trustee or any Owner Manager with respect to a particular corporate trust
matter, or any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
Restricted Certificate: Has the meaning specified in Section 3.1(b).
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Restricted Global Certificate: Has the meaning specified in Section
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3.9.
- ---
Scheduled Payment: With respect to a Distribution Date, means any
-----------------
payment (other than any such payment which is not in fact received by the Pass
Through Trustee within five days of the date on which such payment is scheduled
to be made or Special Payments) of principal and interest on a Lessor Note, due
from the Owner Lessor, which payment represents the payment of a regularly
scheduled installment of principal then due on such Lessor Note, or the payment
of regularly scheduled interest accrued on such Lessor Note.
SEMA OP1: Means SEMA OP1 LLC, a Delaware limited liability company,
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and any successors and assigns permitted by the applicable Participation
Agreement.
SEMA OP2: Means SEMA OP2 LLC, a Delaware limited liability company,
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and any successors and assigns permitted by the applicable Participation
Agreement.
SEMA OP3: Means SEMA OP3 LLC, a Delaware limited liability company,
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and any successors and assigns permitted by the applicable Participation
Agreement.
PASS THROUGH TRUST AGREEMENT A
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11
SEMA OP4: Means SEMA OP4 LLC, a Delaware limited liability company,
--------
and any successors and assigns permitted by the applicable Participation
Agreement.
SEMA OP5: Means SEMA OP5 LLC, a Delaware limited liability company,
--------
and any successors and assigns permitted by the applicable Participation
Agreement.
SEMA OP6: Means SEMA OP6 LLC, a Delaware limited liability company,
--------
and any successors and assigns permitted by the applicable Participation
Agreement.
SEMA OP7: Means SEMA OP7 LLC, a Delaware limited liability company,
--------
and any successors and assigns permitted by the applicable Participation
Agreement.
SEMA OP8: Means SEMA OP8 LLC, a Delaware limited liability company,
--------
and any successors and assigns permitted by the applicable Participation
Agreement.
SEMA OP9: Means SEMA OP9 LLC, a Delaware limited liability company,
--------
and any successors and assigns permitted by the applicable Participation
Agreement.
Shelf Registration Statement: Means the shelf registration statement
----------------------------
which may be required to be filed by the Company with the Commission pursuant to
the Registration Rights Agreement, other than an Exchange Offer Registration
Statement.
Special Distribution Date: Means (i) with respect to the prepayment
-------------------------
of any Lessor Notes, the day on which such prepayment is scheduled to occur
pursuant to the terms of the applicable Lease Indenture and (ii) with respect to
any Special Payment relating to a Lessor Note other than as described in clause
(i) of the definition of Special Payment, the earliest thirtieth day of a month
for which it is practicable for the Pass Through Trustee to give notice pursuant
to Section 4.2(c).
--------------
Special Payment: With respect to a Lessor Note, means (i) any payment
---------------
of principal, premium, if any, and interest on such Lessor Note resulting from
the prepayment or redemption of such Lessor Note pursuant to the applicable
provisions of the applicable Lease Indenture, (ii) any payment of principal and
interest (including any interest accruing upon default) on, or any other amount
in respect of, such Lessor Note upon a Lease Indenture Event of Default in
respect thereof or upon the exercise of remedies under the applicable Lease
Indenture, (iii) any Special Payment referred to in clause (i) of this
definition or any Scheduled Payment which is not in fact paid within
PASS THROUGH TRUST AGREEMENT A
------------------------------
12
five days of the Special Distribution Date or Distribution Date applicable
thereto, or (iv) any proceeds from the sale of any Lessor 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, with respect to the Pass Through Trust
---------------------
(i) obligations of, or guaranteed by, the United States Government or agencies
thereof, (ii) open market commercial paper of any corporation incorporated under
the laws of the United States of America or any State thereof rated at least P-2
or its equivalent by Moody's or a least A-2 or its equivalent by S&P, (iii)
certificates of deposit issued by commercial banks organized under the laws of
the United States or of any political subdivision thereof having a combined
capital and surplus in excess of $100,000,000 which banks or their holding
companies have a rating of A or its equivalent by Moody's or S&P; provided, that
--------
the aggregate amount at any one time so invested in certificates of deposit
issued by any one bank shall not exceed 5% of such bank's capital and surplus,
(iv) U.S. dollar-denominated offshore certificates of deposit issued by, or
offshore time deposits with, any commercial bank described in clause (iii) above
or any subsidiary thereof and (v) repurchase agreements with any financial
institution having combined capital and surplus of at least $100,000,000 with
any of the obligations described in clauses (i) through (iv) above as
collateral; provided, that if all of the above investments are unavailable, the
--------
entire amounts to be invested may be used to purchase federal funds from an
entity described in clause (iii) above.
Temporary Regulation S Global Certificate: Has the meaning specified
-----------------------------------------
in Section 3.9.
-----------
Transfer Date: Has the meaning assigned to the term "Closing Date" in
-------------
the Participation Agreement, and in any event refers to such date as it may be
changed from time to time in accordance with the terms of the Participation
Agreement.
Trust Indenture Act: Has the meaning specified in the recitals
-------------------
hereto.
Trust Property: Means the Lessor Notes held as the property of the
--------------
Pass Through Trust created hereby and all monies at any time paid thereon and
all monies due and to become due thereunder, funds from time to time deposited
in the Escrow Account, 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 Lessor Note.
Undivided Interest: Means, as the context may require, a Morgantown
------------------
Undivided Interest and/or a Dickerson Undivided Interest.
PASS THROUGH TRUST AGREEMENT A
------------------------------
13
Section 1.2 Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company, an Owner Lessor or a
Lease Indenture Trustee to the Pass Through Trustee to take any action under any
provision of this Pass Through Trust Agreement, the Company, such Owner Lessor
or such Lease Indenture Trustee, as the case may be, shall furnish to the Pass
Through Trustee (i) 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 (ii)
as to any legal matters involved, 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 5.1(b)) shall include:
--------------
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, 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.
PASS THROUGH TRUST AGREEMENT A
------------------------------
14
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 Holders.
---------------
(a) Any direction, consent, request, demand, authorization, notice,
waiver or other action provided by this Pass Through Trust Agreement in respect
of the Certificates to be given or taken by the Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent or proxy duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument is, or such instruments are, delivered to the
Pass Through Trustee and, whereas hereby expressly required, to the Company, any
Owner Lessor or any Lease Indenture Trustee. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the Act of the Holders 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 (subject
to Section 7.1) conclusive in favor of the Pass Through Trustee, the Company,
-----------
the related Owner Lessor and the related Lease Indenture Trustee, if made in the
manner provided in this Section 1.4.
-----------
(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 such officer's 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, in its reasonable
judgment sufficient.
(c) In determining whether the Holders of the requisite Fractional
Undivided Interests of Certificates Outstanding have given any direction,
consent, request, demand, authorization, notice or waiver (a "Direction") under
---------
this Pass Through Trust Agreement, Certificates owned by the Company, any Owner
Lessor, any Owner
PASS THROUGH TRUST AGREEMENT A
------------------------------
15
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, an Owner Lessor, an Owner Participant or any Affiliate of any such
Persons.
(d) For all purposes of this Pass Through Trust Agreement, all Initial
Certificates and all Exchange Certificates shall vote and take all other actions
of Certificateholders together as one class of Certificates.
(e) 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 Direction. 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
days prior to the first solicitation of Certificateholders in connection
therewith. If such a record date is fixed, such Direction 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 Direction, and for that purpose the Outstanding Certificates shall be
computed as of such record date; provided that no such Direction by the
--------
Certificateholders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Pass Through Trust Agreement
not later than one year after such record date.
(f) Any Act by the Holder of any Certificate shall bind the Holder of
every Certificate issued upon the transfer thereof or in exchange thereof or in
lieu thereof, whether or not notation of the related Direction is made upon such
Certificate.
(g) 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.
PASS THROUGH TRUST AGREEMENT A
------------------------------
16
ARTICLE II
ACQUISITION OF LESSOR NOTES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.1 Issuance of Certificates; Acquisition of Lessor Notes.
-----------------------------------------------------
(a) The Pass Through Trustee, at or promptly following the execution
and delivery of this Pass Through Trust Agreement, shall also execute and
deliver Participation Agreements, in the form delivered to the Pass Through
Trustee on or prior to the date of the execution and delivery hereof. On the
Issuance Date, upon delivery of an authentication order by the Company, the Pass
Through Trustee shall execute, deliver and authenticate, on behalf of the Pass
Through Trust, Initial Certificates equaling in the aggregate the aggregate
principal amount of the Lessor Notes to be deposited into the Pass Through Trust
on the Transfer Date. The Initial Certificates so executed, delivered and
authenticated on the Issuance Date shall evidence the entire ownership of the
Pass Through Trust. The Pass Through Trust shall issue such Initial
Certificates on the Issuance Date, in authorized denominations and in such
Fractional Undivided Interests, so as to result in the receipt of consideration
(the "Consideration") in an amount equal to the aggregate principal amount of
-------------
such Lessor Notes referred to in the second preceding sentence. Subject to
Section 2.1(b) below, the Pass Through Trust shall purchase Lessor Notes on the
- --------------
Transfer Date in an aggregate principal amount and at an aggregate purchase
price equal to the amount of the Consideration so received. Except as provided
in Sections 3.4 and 3.5 hereof, the Pass Through Trustee shall not execute or
--------------------
deliver Initial Certificates in excess of the aggregate amount specified in this
paragraph. The aggregate Fractional Undivided Interest of Certificates shall
not at any time exceed $454,000,000.
(b) If, on or prior to the Issuance Date, the Company shall deliver to
the Pass Through Trustee a Postponement Notice relating to the Lessor Notes, the
Pass Through Trustee shall postpone the purchase of the Lessor Notes and shall
deposit into an escrow account (the "Escrow Account") to be maintained as part
--------------
of the Pass Through Trust an amount equal to the purchase price of the Lessor
Notes (the "Escrowed Funds"). The Escrowed Funds so deposited 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 (i) maturing no later than the
scheduled Transfer Date or (ii) if no such Transfer Date has been scheduled,
maturing on the next Business Day, or (iii) if the Company has given notice to
the Pass Through Trustee that the Lessor Notes will not be issued, maturing on
the next Special Distribution Date but in no event later than June 30, 2001, if
such investments are reasonably available for purchase. The Pass Through
Trustee shall make a withdrawal from the Escrow Account only as provided in this
Pass Through Trust Agreement. Upon request of the Company on the satisfaction
or waiver of the closing conditions specified in the Participation Agreements on
or prior to the Cut-off Date, the Pass Through Trustee shall purchase the Lessor
Notes with the Escrowed Funds
PASS THROUGH TRUST AGREEMENT A
------------------------------
17
withdrawn from the Escrow Account. The purchase price shall equal the principal
amount of the Lessor Notes.
The Pass Through Trustee shall hold all Specified Investments until the
maturity thereof and will not sell or otherwise transfer Specified Investments.
If Specified Investments held in the Escrow Account mature prior to the Transfer
Date, any proceeds received on the maturity of such Specified Investments 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 as
provided in the preceding paragraph.
Any earnings on Specified Investments received from time to time by the
Pass Through Trustee shall be promptly deposited and held in the Escrow Account
by the Pass Through Trustee. The Company shall pay to the Pass Through Trustee
for deposit to the Escrow Account an amount equal to any losses on such
Specified Investments as incurred. On the initial regular Distribution Date, the
Company will pay (in immediately available funds) to the Pass Through Trustee an
amount equal to the difference between the amount of earnings received by the
Pass Through Trustee on the Specified Investments in the Escrow Account and the
amount of interest that would have accrued on the Lessor Notes, if any,
purchased after the Issuance Date if the Lessor Notes had been purchased on the
Issuance Date to, from the Issuance Date to, but not including, the date of the
purchase of the Lessor Notes by the Pass Through Trustee.
If the Company notifies the Pass Through Trustee prior to the Cut-off
Date that the Lessor Notes will not be issued on or prior to the Cut-off Date
for any reason, on the next Special Distribution Date occurring not less than 20
days following the date of such notice, (i) the Company shall pay to the Pass
Through Trustee for deposit in the Special Payments Account, in immediately
available funds, an amount equal to the difference between the amount of
earnings received by the Pass Through Trustee on Specified Investments in the
Escrow Account and the amount of interest that would have accrued on the Lessor
Notes at a rate equal to the interest rate applicable to the Certificates from
the Issuance Date to, but not including, such Special Distribution Date and (ii)
the Pass Through Trustee shall transfer an amount equal to that amount of
Escrowed Funds that would have been used to purchase the Lessor Notes designated
in such notice and the amount paid by the Company pursuant to the immediately
preceding clause (i) to the Special Payments Account for distribution as a
Special Payment in accordance with the provisions hereof.
(c) Assumption of Lessor Notes. If the Company shall assume the
--------------------------
obligations of an Owner Lessor under any Lessor Note pursuant to Section 2.12 of
------------
the applicable Lease Indenture, (i) if requested by the applicable Lease
Indenture Trustee, the Pass Through Trustee shall surrender the Lessor Notes
issued pursuant to Section 2.12 of such Lease Indenture to the applicable Lease
------------
Indenture Trustee in exchange for new
PASS THROUGH TRUST AGREEMENT A
------------------------------
18
Lessor Notes of the same aggregate outstanding principal amount as the Lessor
Notes so surrendered, bearing interest at the same rate, and having the same
maturity and amortization schedule, and otherwise of similar tenor, issued under
such Lease Indenture and any new Lease Indenture entered into by the Company and
the applicable Lease Indenture Trustee in connection with such assumption, and
(ii) thereafter each reference to such Lessor Notes in this Pass Through Trust
Agreement shall be deemed to include a reference to such new Lessor Notes or the
existing Lessor Notes as assumed by the Company.
Section 2.2 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 Lessor Notes to be acquired pursuant to Section 2.1
-----------
hereof 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 Pass Through Trust thereby joins in the creation and declaration of the Pass
Through Trust.
Section 2.3 Limitation of Powers.
--------------------
The Pass Through Trust is constituted solely for the purpose of making
the investment in the Lessor 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 a Facility by bidding the
Lessor Notes or otherwise, or taking any action with respect to an Undivided
Interest or a Facility once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.1 Form, Denomination and Execution of Certificates.
------------------------------------------------
(a) The Initial Certificates shall be known as the "8.625% Pass
-----------
Through Certificates, Series A" and the Exchange Certificates shall be known as
- ------------------------------
the "8.625% Exchange Pass Through Certificates, Series A," in each case, of the
---------------------------------------------------
Pass Through Trust. Each Certificate shall represent a fractional undivided
interest in
PASS THROUGH TRUST AGREEMENT A
------------------------------
19
the Pass Through Trust. The Certificates shall be issued in 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
or engraved thereon, as may be required to comply with the rules of any
securities exchange on which such 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 said officer to be evidenced by such officer signing the
Certificates.
(b) Except as provided in Section 3.9, definitive Certificates shall
-----------
be printed, lithographed 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 such officer's
execution of such Certificates.
(c) During the period beginning on the Issuance Date and ending on the
expiration of the applicable holding period in Rule 144(k) of the Securities
Act, all Initial Certificates issued on the Issuance Date, and all Certificates
issued upon registration of transfer of, or in exchange for, such Initial
Certificates, shall be "Restricted Certificates" and shall be subject to the
-----------------------
restrictions on transfer provided in the legend set forth on the face of the
form of certificate in Exhibit A; provided, however, that the term "Restricted
-------- ------- ----------
Certificate" shall not include Certificates as to which such restrictions on
- -----------
transfer have been terminated in accordance with Section 3.4. All Restricted
-----------
Certificates shall bear the legend set forth on the face of the certificate in
Exhibit A. Certificates which are not Restricted Certificates shall not bear
such legend.
(d) The Initial Certificates shall be issued in minimum denominations
of $100,000 or integral multiples of $1,000 in excess thereof, except that one
Certificate may be issued in a different denomination. The Exchange
Certificates will be issued in denominations of $1,000 or integral multiples
thereof, except that one Certificate may be issued in a different denomination.
The Certificates shall be executed on behalf of the Pass Through Trust
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
PASS THROUGH TRUST AGREEMENT A
------------------------------
20
certificate of authentication substantially in the form set forth in Exhibit B
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 on the date of their
authentication.
Section 3.2 Authentication of Certificates. Upon delivery of an
------------------------------
authentication order by the Company, the Pass Through Trustee on the Issuance
Date shall cause to be authenticated and delivered Certificates duly executed by
the Pass Through Trustee, in authorized denominations equaling in the aggregate
the aggregate principal amount of the Lessor Notes to be purchased on the
Transfer Date and evidencing the entire ownership of the Pass Through Trust.
Thereafter, the Pass Through Trustee shall duly execute, authenticate and
deliver Certificates as herein provided. The Pass Through Trustee may appoint
an authenticating agent reasonably acceptable to the Company to authenticate the
Certificates. Unless limited by the terms of such appointment, an
authenticating agent may authenticate the Certificates whenever the Pass Through
Trustee may do so. Each reference in this Pass Through Trust Agreement to
authentication by the Pass Through Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Registrar, Paying
Agent or agent for service of notices and demands.
Section 3.3 Temporary Certificates.
----------------------
Pending the preparation of definitive 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, hereto, 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.
If temporary Certificates are issued, the Pass Through Trustee will
cause definitive Certificates to be prepared without unreasonable delay. After
the preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive 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 definitive Certificates of
authorized denominations of a like aggregate Fractional Undivided Interest.
Until so exchanged, such temporary Certificates shall in all respects be
entitled to the same benefits under this Pass Through Trust Agreement as
definitive Certificates.
PASS THROUGH TRUST AGREEMENT A
------------------------------
21
Section 3.4 Registration of Transfer and Exchange of Certificates.
-----------------------------------------------------
(a) The Pass Through Trustee shall cause to be kept, at 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 the provisions of this Section
-------- -------
3.4, Section 3.9 and the Certificates, 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. The Company may,
upon notice to the Pass Through Trustee, change the Registrar at any time.
(b) Every Restricted Certificate shall be subject to the restrictions
on transfer provided in the legend required to be set forth on the face of each
Restricted Certificate pursuant to Section 3.1, and the Holder of each
-----------
Restricted Certificate, by such Holder's acceptance thereof, agrees to be bound
by such restrictions on transfer. Whenever any Restricted Certificate is
presented or surrendered for registration of transfer or for exchange for a
Certificate registered in a name other than that of the Holder, such Restricted
Certificate must be accompanied by a certificate in substantially the form set
forth in Exhibit C hereto, dated the date of such surrender and signed by the
Holder of such Restricted Certificate, as to compliance with such restrictions
on transfer. Neither the Pass Through Trustee nor any Registrar shall be
required to accept for such registration of transfer or exchange any Restricted
Certificate not so accompanied by a properly completed certificate.
Notwithstanding the preceding two sentences, except as set forth in Section 3.9,
-----------
a properly completed certificate shall not be required in connection with any
transfer of any Restricted Certificate through the facilities of DTC or any
other United States securities clearance and settlement organization, provided
--------
that such transfer does not require a change in the name (other than to another
nominee of DTC or such other securities clearance and settlement organization)
in which such Restricted Certificate is then registered.
Whenever any Restricted Certificate is proposed to be transferred by a
Holder to an Institutional Accredited Investor, the Pass Through Trustee shall
have received from such Institutional Accredited Investor, prior to such
transfer, a signed letter substantially in the form of Exhibit D relating to
certain representations and agreements regarding restrictions on transfer of
such Restricted Certificate. In addition, the Holder of the Restricted
Certificate proposed to be transferred must, prior to such transfer, furnish to
the Registrar such certifications (as required by, and in the form set forth in,
this Pass Through Trust Agreement), opinions of counsel or other information as
the Registrar may
PASS THROUGH TRUST AGREEMENT A
------------------------------
22
reasonably request to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration rights of
the Securities Act.
The restrictions imposed by this Section 3.4 and Section 3.1 upon the
----------- -----------
transferability of any particular Restricted Certificate shall cease and
terminate if and when such Restricted Certificate has been sold pursuant to an
effective registration statement under the Securities Act or transferred
pursuant to Rule 144 under the Securities Act (or any successor provision
thereto), unless the Holder thereof is an affiliate of the Company within the
meaning of Rule 144 (or such successor provision). Any Restricted Certificate
as to which such restrictions on transfer shall have expired in accordance with
their terms or shall have terminated may, upon surrender of such Restricted
Certificate for exchange to the Pass Through Trustee or any Registrar in
accordance with the provisions of this Section 3.4 (accompanied, in the event
-----------
that such restrictions on transfer have terminated by reason of a transfer
pursuant to Rule 144 or any successor provision, by an opinion of counsel, such
counsel having substantial experience in practice under the Securities Act and
otherwise reasonably acceptable to the Company, addressed to the Company and the
Pass Through Trustee and in form acceptable to the Company, to the effect that
the transfer of such Restricted Certificate has been made in compliance with
Rule 144 or such successor provision), be exchanged for a new Certificate, of
like tenor and aggregate principal amount, which shall not bear the restrictive
legend required by Section 3.1. The Company shall promptly inform the Pass
-----------
Through Trustee in writing of the effective date of any registration statement
registering the Certificates under the Securities Act. The Pass Through Trustee
shall not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the aforementioned Opinion of Counsel or registration
statement.
(c) Upon surrender for registration of transfer of any Certificate
that is not a Restricted 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 if its requirements for such transaction are met.
(d) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates, in authorized denominations and of a like
aggregate Fractional Undivided Interest, upon surrender of the Certificates to
be exchanged at any such office or agency; provided, that a Restricted
--------
Certificate may only be exchanged for another Restricted Certificate until such
restrictions on such Restricted Certificate shall cease and terminate in
accordance with the terms of this Section 3.4 and provided also, that no
----------- -------- ----
exchanges of Initial Certificates for Exchange Certificates shall occur until an
Exchange Offer Registration Statement shall have been declared effective by the
Commission (notice of which shall be provided to the Pass Through Trustee by the
Company).
PASS THROUGH TRUST AGREEMENT A
------------------------------
23
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, and duly
executed by the Certificateholder thereof or its attorney duly authorized in
writing.
(e) 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.
(f) All Certificates surrendered for registration of transfer and
exchange shall be canceled and disposed of in accordance with the usual
practices of the Pass Through Trustee.
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) in the case of such destruction, loss or theft,
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 and the Pass
Through Trust 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, on behalf of the Pass Through Trust, 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 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 Company, the Registrar and any Paying
Agent 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
- -----------
PASS THROUGH TRUST AGREEMENT A
------------------------------
24
whatsoever, and neither the Pass Through Trustee, the Company, the applicable
Owner Lessor, the Registrar nor any Paying Agent shall be affected by any notice
to the contrary.
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 by such Person 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 3.7 except as expressly permitted by this Pass
-----------
Through Trust Agreement. All canceled Certificates held by the Registrar shall
be disposed of in accordance with the usual practice of the Pass Through Trustee
and, if destroyed, a certification of their destruction shall be delivered to
the Pass Through Trustee.
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 Trust shall have received 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 Holder of a
Certificate, by its acceptance of such Certificate, agrees that will look solely
to the income and proceeds from the Trust Property to the extent available for
distribution to the Holder thereof as provided in this Pass Through Trust
Agreement. Nothing in this Pass Through Trust Agreement shall be construed as an
agreement, or otherwise creating an obligation, of (a) the Company or the Pass
Through Trustee to pay any of the principal, premium, if any, and interest due
from time to time under the Lessor Notes or (b) the Company to pay any amount
due from time to time in respect of the Certificates. The liability of an Owner
Lessor under Lessor Notes shall be limited as set forth therein and in the
applicable Lease Indenture.
Section 3.9 Book Entry and Definitive Certificates.
--------------------------------------
(a) Except for Certificates issued to Institutional Accredited
Investors who are not also qualified institutional buyers ("Non-Global
----------
Purchasers"), which must be issued in the form of definitive, fully registered
- ----------
Certificates without interest coupons ("Definitive Certificates"), the
-----------------------
Certificates may be issued in the form of one or more typewritten Certificates
representing the Book Entry Certificates, to be delivered to DTC, the initial
Clearing Agency by, or by behalf of; the Company. In such case, the
Certificates delivered to DTC 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 definitive certificate representing such
Certificate Owner's interest in the Certificates, except as provided above and
in subsection (d) below. As to the Book-Entry
PASS THROUGH TRUST AGREEMENT A
------------------------------
25
Certificates, unless and until Definitive 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, any Owner Lessor, 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 (other than
the provisions of any supplemental agreement amending this Section 3.9 as
-----------
permitted by 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 Definitive 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 premium, if any, on the
Certificates to such Clearing Agency Participants; and
(v) wherever 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 in the Pass Through Trust, 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) With respect to Book-Entry Certificates, whenever notice or other
communication to the Certificateholders is required under this Pass Through
Trust Agreement, unless and until Definitive 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, upon receipt
of a valid Certificate Owner Request, to the Certificateholder or Certificate
Owner making such request), and shall make available additional copies as
requested by such Clearing Agency Participants.
PASS THROUGH TRUST AGREEMENT A
------------------------------
26
(c) Unless and until Definitive Certificates are issued pursuant to
subsection (d) below, on the Record Date prior to each applicable 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 books as
holding interests in the Certificates on such Record Date. The Pass Through
Trustee shall mail to each such Clearing Agency Participant the statements
described in Section 4.3 hereof.
-----------
(d) If with respect to the Certificates (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 Company is unable to
locate a qualified successor within 90 days, (ii) the Company (or, following the
occurrence of a Lease Event of Default, the applicable Owner Lessors) 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 said Certificate Owners delivered to the
Company and the Pass Through Trustee, advise the Company, the Owner Lessors, 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
Definitive Certificates. Upon surrender to the Pass Through Trustee of all the
Certificates held by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency for registration of Definitive
Certificates in the names of Certificate Owners, the Pass Through Trust shall
issue and deliver the Definitive Certificates in accordance with the
instructions of the Clearing Agency. None of the Company, the Owner Lessors, the
Registrar, the Paying Agent or 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
Definitive Certificates, the Pass Through Trustee shall recognize the Person in
whose name the Definitive Certificates are registered in the Register as
Certificateholder hereunder. Neither the Company nor the Pass Through Trustee
shall be liable if the Company is unable to locate a qualified successor
Clearing Agency.
(e) The Initial Certificates sold in offshore transactions in reliance
on Regulation S under the Securities Act will be represented initially by a
single, temporary Book-Entry Certificate, in definitive, fully registered form
without interest coupons (the "Temporary Regulation S Global Certificate") and
------------------------------------------
will be deposited with the Pass Through Trustee as custodian for DTC and
registered in the name of a nominee of DTC for the accounts of Morgan Guaranty
Trust Company of New York, Brussels Office, as
PASS THROUGH TRUST AGREEMENT A
------------------------------
27
operator of the Euroclear System ("Euroclear"), and Clearstream Banking societe
---------
anonyme ("Clearstream"). Each Temporary Regulation S Global Certificate will be
-----------
exchangeable for a single, permanent Book-Entry Certificate (the "Permanent
---------
Regulation S Global Certificate") and together with the Temporary Regulation S
- -------------------------------
Global Certificate, the "Regulation S Global Certificate") on or after the 40th
-------------------------------
day after the Issuance Date upon certification that the beneficial interests in
such Book-Entry Certificate are owned by persons who are not U.S. persons as
defined in Regulation S. Prior to the expiration of such 40-day period,
beneficial interests in the Temporary Regulation S Global Certificate may be
held only through Euroclear or Clearstream, and any resale or other transfer of
such interests to U.S. persons shall not be permitted during such period unless
such resale or transfer is made pursuant to Rule l44A or Regulation S under the
Securities Act and in accordance with the certification requirements specified
in Section 3.9(f) below. The aggregate original principal amount of the
--------------
Regulation S Global Certificate may from time to time be increased or decreased
by adjustments made on the records of the Pass Through Trustee, as custodian for
DTC, in connection with a corresponding decrease or increase in the aggregate
original principal amount of a Definitive Certificate or the Restricted Global
Certificate, as hereinafter provided.
(f) The Initial Certificates sold in reliance on Rule 144A under the
Securities Act will be represented by a single, permanent Book-Entry
Certificate, in definitive, fully registered form without interest coupons (the
"Restricted Global Certificate") and will be deposited with the Pass Through
-----------------------------
Trustee as custodian for DTC and registered in the name of a nominee of DTC.
Prior to the 40th day after the Issuance Date, a beneficial interest in the
Temporary Regulation S Global Certificate may be transferred to a person who
takes delivery in the form of an interest in the Restricted Global Certificate
only upon receipt by the Pass Through Trustee of a written certification
from the transferor (in the form of Exhibit C hereto) to the effect that such
transfer is being made to a person who the transferor reasonably believes is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and in accordance with any applicable
securities laws of any state of the United States or any other jurisdiction.
Beneficial interests in the Restricted Global Certificate may be transferred to
a person who takes delivery in the form of an interest in the Regulation S
Global Certificate whether before, on or after such 40th day, only upon receipt
by the Pass Through Trustee of a written certification (in the form of Exhibit C
hereto) to the effect that such transfer is being made in accordance with
Regulation S under the Securities Act and, if such transfer occurs prior to such
40th day, the interest will be held immediately thereafter only through
Euroclear or Clearstream. The aggregate initial principal amount of the
Restricted Global Certificate may from time to time be increased or decreased by
adjustments made on the records of the Pass Through Trustee, as custodian for
DTC, in connection with a corresponding decrease or increase in the aggregate
initial principal amount of a Definitive Certificate or a Regulation S Global
Certificate, as hereinafter provided.
PASS THROUGH TRUST AGREEMENT A
------------------------------
28
(g) The Exchange Certificates shall be issued in the form of one or
more global Certificates substantially in the form of Exhibit A hereto (each, a
"Global Exchange Certificate"), except that (i) the restrictive legend shall be
---------------------------
omitted and (ii) such Exchange Certificates shall contain such appropriate
insertions, omissions, substitutions and other variations from the form set
forth in Exhibit A hereto relating to the nature of the Exchange Certificates as
the Responsible Officer of the Pass Through Trustee executing such Exchange
Certificates on behalf of the Pass Through Trust may determine, as evidenced by
such officer's execution on behalf of the Pass Through Trust of such Exchange
Certificates. Such Global Exchange Certificates shall be in registered form and
be registered in the name of DTC and deposited with the Pass Through Trustee, at
its Corporate Trust Office, as custodian for DTC. The aggregate principal
amount of any Global Exchange Certificate may from time to time be increased or
decreased by adjustments made on the records of the Pass Through Trustee, as
custodian for DTC for such Global Exchange Certificate, which adjustments shall
be conclusive as to the aggregate principal amount of any such Global Exchange
Certificate.
(h) Any beneficial interest in one of the Book-Entry Certificates that
is transferred to a person who takes delivery in the form of an interest in
another Book-Entry Certificate will, upon transfer, cease to be an interest in
such Book-Entry Certificate and become an interest in such other Book Entry
Certificate and, accordingly, will thereafter be subject to all transfer
restrictions, if any, and other procedures applicable to beneficial interests in
such other Book-Entry Certificate for so long as remains such an interest. Upon
the transfer of Definitive Certificates from a Non-Global Purchaser to a
qualified institutional buyer or in accordance with Regulation S, such
Definitive Certificates will be exchanged for an interest in a Book-Entry
Certificate. The Certificates shall not be issuable in bearer form.
(i) The Company and the Pass Through Trustee shall each enter into the
Letter of Representations with respect to the Certificates and fulfill its
responsibilities thereunder.
Section 3.10 Form of Certification.
---------------------
In connection with any certification contemplated by Section 3.4
-----------
regarding compliance with certain restrictions relating to transfers of
Restricted Certificates, such certification shall be provided substantially in
the form of Exhibit C hereto, with only such changes as shall be reasonably
approved by the Company and reasonably acceptable to the Pass Through Trustee.
PASS THROUGH TRUST AGREEMENT A
------------------------------
29
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 with the Pass Through Trustee as
one or more 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 a Lease
Indenture to the Pass Through Trustee, as holder of the Lessor Notes issued
under such Lease Indenture, the Pass Through Trustee upon receipt of such
scheduled payment 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 with the Pass Through
Trustee 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 a Special Payment is made to the Pass Through
Trustee, the Pass Through Trustee upon receipt shall immediately deposit the
aggregate amounts of such Special Payments in the Special Payments Account.
(c) The Pass Through Trustee shall present to each Lease Indenture
Trustee each Lessor Note issued under the related Lease Indenture, on the date
of its stated final maturity, or in the case of any Lessor Note which is to be
prepaid in whole pursuant to a Lease Indenture, on the applicable prepayment
date under such Lease Indenture.
Section 4.2 Distributions from Certificate Account and Special
--------------------------------------------------
Payments Account.
- ----------------
(a) On each Distribution Date, if the Pass Through Trustee receives
payment of the Scheduled Payments due on the Lessor Notes on such date by 12:00
noon, New York time, on such date, the Pass Through Trustee shall distribute out
of the Certificate Account the entire amount deposited therein pursuant to
Section 4.1(a). If a Scheduled Payment is received by the Pass Through Trustee
- --------------
after 12:00 noon, New York
PASS THROUGH TRUST AGREEMENT A
------------------------------
30
time, on a Distribution Date, the Pass Through Trustee shall use its reasonable
efforts to distribute such amount on such Distribution Date, but such payment
may be distributed on the next Business Day. If a Scheduled Payment is not
received by the Pass Through Trustee on a Distribution Date but is received
prior to the time such payment would become a Special Payment, such payment
shall be distributed (i) on the date received, if received by 12:00 noon, New
York time, on such date or (ii) on the next Business Day, if received after
12:00 noon, New York time, on such date; provided, the Pass Through Trustee
shall use its reasonable efforts to distribute such amount on the date of
receipt thereof. There shall be so distributed to each Certificateholder of
record on the Record Date with respect to such Distribution Date (other than as
provided in Section 11.1 concerning the final distribution) (i) if (A) DTC is
------------
the Certificateholder of record, or (B) a Certificateholder holds a Certificate
or Certificates in an aggregate amount greater than $10,000,000, or (C) a
Certificateholder holds a Certificate or Certificates in an aggregate amount
greater than $1,000,000 and so requests to the Pass Through Trustee, by wire
transfer in immediately available funds to an account maintained by such
Certificateholder with a bank or (ii) if none of the above apply, 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.
(b) On each Special Distribution Date with respect to any Special
Payment, if the Pass Through Trustee receives the Special Payments due on such
date by 12:00 noon, New York time, on such date, the Pass Through Trustee shall
distribute out of the Special Payments Account the entire amount deposited
therein with respect to such Special Payment pursuant to Section 4.1(b). If a
--------------
Special Payment is received by the Pass Through Trustee after 12:00 noon, New
York time, on a Special Distribution Date, the Pass Through Trustee shall use
its reasonable efforts to distribute such amount on such Distribution Date, but
such payment shall be distributed on the next Business Day. If a Special Payment
is not received by the Pass Through Trustee on a Special Distribution Date, such
payment shall be distributed (i) on the date received, if received by 12:00
noon, New York time, on such date or (ii) on the next Business Day, if received
after 12:00 noon, New York time, on such date; provided, the Pass Through
Trustee shall use its reasonable efforts to distribute such amount on the date
of receipt thereof. 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) (i) if (A)
------------
DTC is the Certificateholder of record, or (B) a Certificateholder holds a
Certificate or Certificates in an aggregate amount greater than $10,000,000, or
(C) a Certificateholder holds a Certificate or Certificates in an aggregate
amount greater than $1,000,000 and so requests to the Pass Through Trustee, by
wire transfer in immediately available funds to an account maintained by the
Certificateholder
PASS THROUGH TRUST AGREEMENT A
------------------------------
31
with a bank or (ii) if none of the above apply, 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.
(c) The Pass Through Trustee shall at the expense of the Company cause
notice of each Special Payment to be mailed to (i) each Certificateholder, at
the address of such Certificateholder as appears in the Register and (ii) any
Certificate Owner who has made a valid Certificate Owner Request at the address
specified in such Certificate Owner Request. In the event of prepayment of
Lessor Notes, such notice shall be mailed not less than 20 days prior to the
date any such Special Payment is scheduled to be distributed. 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 and shall set forth:
(i) the Special Distribution Date and the Record Date
therefore (except as otherwise provided in Section 11.1);
------------
(ii) the amount of the Special Payment per $1,000 of face
amount of Certificates and the amount thereof constituting principal,
premium, if any, and interest;
(iii) the reason for the Special Payment; and
(iv) if the Special Distribution Date is the same date as a
Distribution Date, the total amount to be received on such date per $1,000
of face amount of Certificates.
If the amount of premium payable upon the prepayment of a Lessor 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 premium received will also be
distributed.
Section 4.3 Statements to Certificateholders.
--------------------------------
(a) On each Distribution Date and Special Distribution Date, the Pass
Through Trustee will include with each distribution to Certificateholders and
any Certificate Owner who has made a valid Certificate Owner Request a
statement, giving effect to such distribution to be made on such date, setting
forth the following information (per $1,000 face amount Certificate as to (i)
and (ii) below):
PASS THROUGH TRUST AGREEMENT A
------------------------------
32
(i) the amount of such distribution allocable to principal and
the amount allocable to premium, if any; and
(ii) the amount of such distribution allocable to interest.
(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 (i) to each Person who at any time during such calendar
year was a Certificateholder of record and (ii) to any Certificate Owner who has
made a valid Certificate Owner Request and provided the Pass Through Trustee
with such pertinent information as the Pass Through Trustee shall reasonably
request, a report containing the sum of the amounts determined pursuant to
clauses (a)(i) and (a)(ii) with respect to the Pass Through Trust for such
calendar year or, in the event such Person was a Certificateholder of record or
Certificate Owner 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 or Certificate Owner shall
reasonably request as necessary for the purpose of such Certficateholder's or
Certificate Owner's preparation of its Federal income tax returns.
(c) Based on information provided by the Company, if there shall
occur any change in the principal amortization schedule of the Lessor Notes
resulting in a change in the schedule of expected distributions on the
Certificates from that set forth on page 71 of the Offering Circular, the Pass
Through Trustee shall promptly furnish to the Certificateholders a statement
setting forth the revised principal amortization schedule of the Lessor Notes
and the resulting revised schedule of expected distributions on the
Certificates.
Section 4.4 Investment of Special Payment Moneys.
------------------------------------
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 Government 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
- --- -----------
Government Investments having maturities not later than the date that such
moneys are required to be paid 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 Government 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 negligence
-----------
of the Pass Through Trustee. All income and
PASS THROUGH TRUST AGREEMENT A
------------------------------
33
earnings from such investments shall be distributed on such Special Distribution
Date as part of such Special Payment.
Section 4.5 Adjustment of Interest Rates Applicable to Certificates.
-------------------------------------------------------
(a) Subject to Section 4.5(b), interest on the Certificates shall be
--------------
payable at the rates specified in the first paragraph of the Lessor Notes.
(b) If a Registration Default shall have occurred and be continuing,
the interest rate applicable to the Lessor Notes (and consequently, the interest
rate applicable to the Certificates) shall be increased by 0.50% per annum from
and after the date such Registration Default occurs to but excluding the date on
which such Registration Default shall cease to exist.
(c) If a Reporting Cessation (as defined below) occurs, the interest
rate applicable to the Lessor Notes (and consequently, the interest rate
applicable to the Certificates) shall be increased by 0.50% per annum from the
date such Reporting Cessation occurs until such time as the Reporting Cessation
has ended; provided, however, that if a Registration Default and a Reporting
-------- -------
Cessation shall have occurred and be continuing at the same time, the maximum
increase in the interest rate applicable to the Lessor Notes (and consequently,
the interest rate applicable to the Certificates) shall be 0.50% per annum.
ARTICLE V
THE COMPANY
Section 5.1 Reports.
-------
For so long as any Certificates remain Outstanding, the Company shall furnish:
(a) to Certificateholders, Certificate Owners and prospective investors, upon
their request, unless the Company shall at the time be subject to the reporting
requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act, and (b) to the Pass
Through Trustee, who in turn shall provide such information, to
Certificateholders and upon a Certificate Owner Request, Certificate Owners (i)
within 60 days following the end of each of the first three fiscal quarters of
the Company during each fiscal year, unaudited quarterly financial statements
and (ii) within 120 days following the end of the fiscal year of the Company,
audited annual financial statements (with the accompanying footnotes and audit
report).
PASS THROUGH TRUST AGREEMENT A
------------------------------
34
In addition, following the effectiveness of any registration statement
pursuant to the Registration Rights Agreement, whether or not required by the
rules and regulations of the Commission, the Company shall maintain its status
as a reporting company under the Exchange Act, and file a copy of all such
information and reports with the Commission for public availability within the
time periods specified in the Commission's rules and regulations (unless the
Commission will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request. If at any time the
Company ceases to maintain its status as a reporting company under the Exchange
Act (such cessation, a "Reporting Cessation"), the interest payable on the
-------------------
Lessor Notes (and consequently, the interest payable on the Certificates) shall
increase as provided in Section 4.5(c); provided, however, that no Reporting
-------------- -------- -------
Cessation shall be deemed to occur if the Commission will not accept the
information and reports of the Company to be filed pursuant to the Exchange Act.
ARTICLE VI
DEFAULT
Section 6.1 Events of Default.
-----------------
With respect to any Lessor Note, if a Lease Indenture Event of Default
under the applicable Lease Indenture (an "Event of Default") shall occur and be
----------------
continuing, then, and in each and every case, so long as such Lease Indenture
Event of Default shall be continuing, the Pass Through Trustee may vote all of
the Lessor Notes issued under such Lease Indenture held in the Pass Through
Trust, and upon the Direction of the Required Holders, the Pass Through Trustee
shall vote a corresponding majority of such Lessor Notes, in favor of directing
the applicable Lease Indenture Trustee to declare the unpaid principal amount of
such Lessor Notes then outstanding and accrued interest thereon to be due and
payable under, and to the extent permitted by and in accordance with, the
provisions of such Lease Indenture. In addition, with respect to any Lessor
Note, if a Lease Indenture Event of Default shall have occurred and be
continuing under the related Lease Indenture, the Pass Through Trustee may, and
upon the Direction of the Required Holders as provided in Section 6.4 shall, in
-----------
accordance with such Lease Indenture vote the applicable Lessor Notes issued
thereunder held in the Pass Through Trust to direct the applicable Lease
Indenture Trustee regarding the exercise of remedies provided in such Lease
Indenture and consistent with the terms thereof. Notwithstanding the foregoing,
no Lease Indenture Event of Default under a given Lease Indenture shall give
rise to a Lease Indenture Event of Default under any other Lease Indenture.
In addition, after an Event of Default shall have occurred and be
continuing, the Pass Through Trustee may in its discretion, and upon the
Direction of the
PASS THROUGH TRUST AGREEMENT A
------------------------------
35
Required Holders, shall, by such officer or agent as it may appoint, sell,
convey, transfer and deliver all or a portion of such Lessor Note or Lessor
Notes issued under a Lease Indenture with respect to which the Event of Default
has occurred, without recourse to or warranty by the Pass Through Trustee or any
Certificateholders to any Person. In any such case, the Pass Through Trustee
shall sell, assign, contract to sell or otherwise dispose of and deliver such
Lessor Note or Lessor 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. The Pass Through
Trustee shall give notice to the Company and the applicable Owner Lessor
promptly after any such sale.
Section 6.2 Incidents of Sale of Lessor Notes.
---------------------------------
Upon any sale of all or any part of the Lessor 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:
(1) Certificateholders and Pass Through Trustee May Purchase Lessor
---------------------------------------------------------------
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 Lessor Notes and, upon compliance with the terms of sale, may hold,
retain, possess and dispose of such Lessor Notes in their or its own
absolute right without further accountability.
(2) Receipt by Pass Through Trustee Shall Discharge Purchaser. The
---------------------------------------------------------
receipt of immediately available funds by the Pass Through Trustee 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
his personal representative or assigns shall not be obliged to see to the
application of such purchase money, or be in any way answerable for any
loss, misapplication or non-application thereof.
(3) Application of Moneys Received upon Sale. Any moneys collected
----------------------------------------
by the Pass Through Trustee upon any sale made either under the power of
sale given by this Pass Through Trust Agreement or otherwise for the
enforcement of this Pass Through Trust Agreement, shall be applied as
provided in Section 4.2.
-----------
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; premium, if any, or interest on any Lessor
Note, or if there shall be any failure to pay Rent (as defined in a Lease) under
the Lease related to
PASS THROUGH TRUST AGREEMENT A
------------------------------
36
any Lessor Note when due and payable, then the Pass Through Trustee, in its own
name, and as trustee of an express trust, as holder of such Lessor Notes, shall
be, to the extent permitted by and in accordance with the terms of the
applicable Operative 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 Lessor Notes or under the applicable 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; subject,
-------
however, to the limitations of liability set forth in the Lessor Notes and the
- -------
applicable Operative Documents.
(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 any Lessor 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 applicable Lease Indenture Trustee for the payment of overdue principal,
premium (if any) or interest on any Lessor Notes), shall, subject to the terms
of the applicable Operative Documents, 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, any Owner Lessor, any Owner Manager or any Owner
Participant, their respective creditors or property. Subject to the terms of
the applicable Operative Documents, any receiver, assignee, trustee, liquidator
or sequestrate (or similar official) in any such 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 it for the reasonable
compensation, expenses, disbursements and advances of the Pass Through Trustee,
its agents and counsel. Subject to Section 6.4, 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 or change in any way any right
of any Certificateholder.
Section 6.4 Control by Certificateholders.
-----------------------------
The Required Holders 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 upon the Pass
Through Trustee, under
PASS THROUGH TRUST AGREEMENT A
------------------------------
37
this Pass Through Trust Agreement, including any right of the Pass Through
Trustee as holder of the Lessor Notes, provided that
--------
(1) 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,
(2) 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,
(3) the Pass Through Trustee may take any other action deemed proper
by the Pass Through Trustee which is not inconsistent with such Direction,
(4) such Required Holders shall have offered to the Pass Through
Trustee security or indemnity against the costs, expenses or liabilities
which may be incurred thereby, and
(5) if a Lease Indenture Event of Default shall have occurred and be
continuing, such Direction shall not obligate the Pass Through Trustee to
vote more than a corresponding majority of the applicable Lessor Notes held
by the Pass Through Trust in favor of directing any action by the
applicable Lease Indenture Trustee with respect to such Lease Indenture
Event of Default.
Section 6.5 Waiver of Defaults.
------------------
The Required Holders may, on behalf of the Certificateholders of all
the Certificates, waive any Default hereunder and its consequences or may
instruct the Pass Through Trustee to waive any default under a Lease Indenture
and its consequences, except a Default:
(1) in the deposit of any Scheduled Payment or Special Payment
under Section 4.1 or in the distribution of any payment under Section 4.2
----------- -----------
on the Certificates, or
(2) in the payment of the principal of, premium, if any, or interest
on any Lessor Notes, or
(3) in respect of a covenant or provision hereof which under Article
IX hereof cannot be modified or amended without the consent of the Holder
of 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
PASS THROUGH TRUST AGREEMENT A
------------------------------
38
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 Holders to
the applicable Lease Indenture Trustee shall be annulled with respect thereto;
provided, however, 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 the Lessor Notes issued under
the applicable Lease Indenture to waive the corresponding Lease Indenture
Default or Lease Indenture Event of Default.
With respect to consents, approvals, waivers and authorizations which
under the terms of Article VI of a Lease Indenture may be given by a Lease
Indenture Trustee without the necessity of the consent of any of the holders of
Lessor Notes, no consent, approval, waiver or authorization shall be required
hereunder on the part of the Pass Through Trustee or the Certificateholders.
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
attorneys' 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 being understood that any such requirement for the Pass
Through Trustee to assume any such costs is subject to the limitations set forth
in Section 7.1 hereof; provided, however, that the provisions of this Section
----------- -------- ------- -------
6.6 shall not apply to (a) any suit, action or proceeding instituted by any
- ---
Holder, or group of Holders, holding in the aggregate Certificates 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.
Section 6.7 Right of Certificateholders to Receive Payments Not to Be
---------------------------------------------------------
Impaired.
- --------
Anything in this Pass Through Trust Agreement to the contrary
notwithstanding, 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
PASS THROUGH TRUST AGREEMENT A
------------------------------
39
for the enforcement of any such payment on or after the applicable 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.
- ------------------
No Certificateholder shall 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:
(1) such Certificateholder previously shall have given written notice
to the Pass Through Trustee of a continuing Event of Default;
(2) the Required Holders shall have requested the Pass Through
Trustee in writing to institute such suit, action or proceeding and shall
have offered to the Pass Through Trustee an indemnity as provided in
Section 7.3(e);
--------------
(3) the Pass Through Trustee shall have refused or neglected to
institute any such suit, action or proceeding for 60 days after receipt of
such notice, request and offer of indemnity; and
(4) no Direction inconsistent with such written request has been
given to the Pass Through Trustee during such 60-day period by the Required
Holders.
It is understood and intended that no one or more of the Certificate-
holders shall have any right in any manner whatever hereunder or under the
Certificates to (i) surrender, impair, waive, affect, disturb or prejudice any
property in the Trust Property or the lien of any Lease Indenture on any
property subject thereto, or the rights of the Certificateholders or the holders
of the Lessor Notes, (ii) obtain or seek to obtain priority over or preference
to any other such Holder or (iii) 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.
PASS THROUGH TRUST AGREEMENT A
------------------------------
40
ARTICLE VII
THE PASS THROUGH TRUSTEE
Section 7.1 Certain Duties and Responsibilities.
-----------------------------------
(a) Prior to an Event of Default of which a Responsible Officer of
the Pass Through Trustee has actual knowledge,
(1) the Pass Through Trustee shall not be liable except for the
performance of such duties as are specifically set out in this Pass Through
Trust Agreement; and
(2) the Pass Through Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, in
the absence of bad faith on the part of the Pass Through Trustee, upon
Officer's Certificates or Opinions of Counsel conforming to the
requirements of this Pass Through Trust Agreement;
provided, however, the Pass Through Trustee shall examine the evidence furnished
- -------- -------
to it pursuant to Section 314 of the Trust Indenture Act to determine whether or
not such evidence conforms to the requirements of this Pass Through Trust
Agreement; provided, further, that the Pass Through Trustee shall not be
-------- -------
responsible for the accuracy of content of such evidence.
(b) In case an Event of Default has occurred and is continuing, the
Pass Through Trustee shall exercise each of the rights and powers vested in it
by this Pass Through Trust Agreement, and shall use the same degree of care and
skill in its exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his/her 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 gross
negligence (or simple negligence in the handling of funds) or its own willful
misconduct, except that:
(1) this subsection (c) shall not be construed to limit the effect of
subsection (a) of this Section 7.1;
-----------
(2) the Pass Through Trustee shall not be liable in its individual
capacity for any error of judgment made in good faith by a Responsible
Officer of the Pass Through Trustee, unless it shall be proved that the
Pass Through Trustee was grossly negligent in ascertaining the pertinent
facts; and
(3) 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 Required Holders relating to 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 upon the Pass
Through Trustee, under this Pass Through Agreement.
(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 7.1.
-----------
Section 7.2 Notice of Defaults.
------------------
The Pass Through Trustee shall give to the Certificateholders, in the
manner and to the extent required by Section 313(c) of the Trust Indenture Act,
and to the Company, any Owner Lessors and any Lease Indenture Trustees in
accordance with Section 12.3, notice of all Defaults actually known to a
------------
PASS THROUGH TRUST AGREEMENT A
------------------------------
41
Responsible Officer of the Pass Through Trustee within 90 days after the
occurrence thereof provided, however, that, except in the case of a Default in
-------- -------
the payment of the principal of, premium, if any, or interest on any Lessor
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 or Responsible Officers of the Pass Through Trustee in
good faith determines that the withholding of such notice is in the interests of
the Certificateholders.
Section 7.3 Certain Rights of Pass Through Trustee.
---------------------------------------
Subject to the provisions of Section 315 of the Trust Indenture Act,
and except as otherwise provided in Section 7.1:
-----------
(a) the Pass Through Trustee may rely and shall be protected in
acting or refraining from acting in reliance upon any Act, Direction,
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;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Request;
(c) whenever, in the administration of this Pass Through Trust
Agreement, the Pass Through Trustee shall deem desirable that a matter be
provided 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 absence of bad faith on its part, rely upon
an Officer's Certificate of the Company, an Owner Lessor or a Lease Indenture
Trustee;
(d) the Pass Through Trustee 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 hereunder in good faith and in reliance thereon;
(e) 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 reasonable security or indemnity against the cost, expenses
and liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Pass Through Trustee shall not be bound to make any
investigation into the facts or matters stated in any Act, Direction,
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or document;
(g) 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 by
it hereunder with due care;
(h) the Pass Through Trustee shall not be personally liable for any
action taken, suffered or omitted by in good faith and believed by it to be
authorized or within the discretion of its rights or powers conferred upon it by
this Pass Through Trust Agreement;
PASS THROUGH TRUST AGREEMENT A
------------------------------
42
(i) the right of the Pass Through Trustee to perform any discretionary
act enumerated in this Pass Through Trust Agreement shall not be construed as a
duty, and the Pass Through Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of such act;
(j) the Pass Through Trustee shall not be required to give any bond or
surety in respect of the execution of the trust fund created hereby or the
powers granted hereunder or expend any of its own funds in any action brought
pursuant to this Pass Through Trust Agreement; and
(k) the Pass Through Trustee shall have no responsibility for filing
any financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to record this Pass Through Trust Agreement.
Section 7.4 Not Responsible for Recitals; 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
accuracy. The Pass Through Trustee makes no representations as to the validity
or sufficiency of this Pass Through Trust Agreement, the Lessor Notes, the
applicable Operative Documents or the Certificates, or the Collateral securing
the Lessor Notes, 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.
Section 7.5 May Hold Certificates.
---------------------
The Pass Through Trustee, any Paying Agent, Registrar 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, if applicable, may otherwise deal with the Company, any
Owner Lessor, any Owner Participant and any Lease Indenture Trustee with the
same rights it would have if it were not the Pass Through Trustee, Paying Agent,
Registrar or such other agent, subject to Section 7.8 in the case of the Pass
-----------
Through Trustee.
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.
PASS THROUGH TRUST AGREEMENT A
------------------------------
43
Section 7.7 Compensation, Reimbursement and Indemnification.
-----------------------------------------------
The Company agrees:
(1) to pay or cause to be paid, to the Pass Through Trustee from
time to time the compensation separately agreed to by the Pass Through
Trusts and the Company 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); and
(2) 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 gross
negligence, willful misconduct or bad faith.
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 gross negligence (or simple
negligence in the handling of funds), bad faith or willful misconduct, on its
part, arising out of or in connection with the acceptance or administration of
the Pass Through Trust (other than any tax attributable to the Pass Through
Trustee's compensation for serving as such), including any costs and expenses
incurred in contesting the imposition of any such tax. If the Pass Through
Trustee reimburses itself 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.
Section 7.8 Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Pass Through Trustee hereunder which (a)
shall be, at any time that the Certificates shall be subject to the Trust
Indenture Act, a Person eligible to act as a trustee under Section 310(a) of the
Trust Indenture Act and (b) shall be a corporation organized and doing business
under the laws of the United States of America or of any state, authorized under
such laws to exercise corporate trust powers, having (or a member of a bank
holding company group, the parent company of which has) a combined capital and
surplus of at least $100,000,000, and subject to supervision or examination by
Federal or state authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Pass Through Trustee shall cease to be
eligible in accordance with the provisions of clause (a) of this Section 7.8 at
-----------
a time when it is required to be so qualified, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article VII.
PASS THROUGH TRUST AGREEMENT A
------------------------------
44
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 VII
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 Lessors, the
Owner Participants and the Lease Indenture Trustees. If an instrument of
acceptance by a successor Pass Through Trustee shall not have been delivered to
the Company, the Owner Lessors, the Owner Participants and the Lease Indenture
Trustees 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
Required Holders delivered to the Pass Through Trustee and to the Company, the
Owner Lessors and the Lease Indenture Trustees.
(d) If at any time:
(1) the Pass Through Trustee fails to, at any time that the
Certificates shall be subject to the Trust Indenture Act, comply with the
requirements of Section 310 of the Trust Indenture Act after written
request for such compliance by a Certificateholder that has been a bona
fide Certificateholder for at least six months; or
(2) 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, following the occurrence of a Lease Event of Default, the
applicable Owner Lessor) or by any such Certificateholder; or
(3) the Pass Through Trustee shall become incapable of acting or
shall be adjudged 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 Through Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any case, (i) the Company (or, following the occurrence of a Lease
Event of Default, the applicable Owner Lessor) may remove the Pass Through
Trustee or (ii) subject to Section 6.6, any Certificateholder who has been a
-----------
bona fide Holder of a Certificate for at least six months may, on behalf of
himself and all others similarly
PASS THROUGH TRUST AGREEMENT A
------------------------------
45
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 Lessor 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 Lessors 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) Holders of the Certificates or (z)
the Pass Through Trustee for which the Pass Through Trustee is entitled to seek
reimbursement from the Trust Property, and (ii) that 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 Lessors 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 (or, following the occurrence of a
Lease Event of Default, the applicable Owner Lessor) shall promptly appoint a
successor Pass Through Trustee. If within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Pass
Through Trustee shall be appointed by Act of the Required Holders, delivered to
the Company, the Owner Lessors, the Owner Participants, the Lease Indenture
Trustees 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 successor Pass
Through Trustee appointed as provided above. If no successor Pass Through
Trustee shall have been so appointed as provided above and accepted such
appointment in the manner hereinafter provided, any Certificateholder who has
been a bona fide Holder of a Certificate 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 Holders of Certificates as their names and
addresses appear in the Register. Each notice shall include the name of such
successor trustee and the address of its Corporate Trust Office.
PASS THROUGH TRUST AGREEMENT A
------------------------------
46
Section 7.10 Acceptance of Appointment by Successor.
--------------------------------------
Every successor Pass Through Trustee appointed hereunder shall
execute, acknowledge and deliver to the Company, the Owner Lessors and to 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, following the occurrence of a Lease Event of Default, the applicable Owner
Lessor) to 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 Owner Lessors, 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 VII, 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.
-----------------------
PASS THROUGH TRUST AGREEMENT A
------------------------------
47
(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 at State Street Bank
and Trust Company, N.A., 61 Broadway Avenue, 15/th/ Floor, New York, New York
10006. 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 Lessors, the Owner Participants, the Lease Indenture
Trustees 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 or any state, with a combined capital and surplus of at least
$100,000,000, 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 7.12,
------------
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
Lessors, the Owner Participants and the Lease Indenture Trustees. The Company
(or, following the occurrence of a Lease Event of Default, the applicable Owner
Lessor) 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 7.12 (when,
------------
in either case, no other Authorized Agent performing the functions of
PASS THROUGH TRUST AGREEMENT A
------------------------------
48
such Authorized Agent shall have been appointed), the Company (or, following the
occurrence of a Lease Event of Default, the applicable Owner Lessor) 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 7.12. The Company (or,
------------
following the occurrence of a Lease Event of Default, the applicable Owner
Lessor) shall give written notice of any such appointment made by to the Pass
Through Trustee, the Company, the Owner Lessors and the Lease Indenture
Trustees; and in each case the Pass Through Trustee shall mail notice of such
appointment to all Holders as their names and addresses appear on the Register.
(e) The Company agrees to pay, or cause to be paid, from time to time
to each Authorized Agent the compensation as set forth in the schedule agreed to
by each Authorized Agent and the Company for its services and to reimburse it
for its reasonable expenses.
Section 7.13 Money for Certificate Payments to Be Held in 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 Holders of the Certificates entitled to such payment, subject to the
provisions of this Section 7.13. Moneys so deposited held in trust shall
------------
constitute a separate trust fund for the benefit of the Holders of the
Certificates 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 7.13, that such Paying Agent will
------------
(1) 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;
(2) give the Pass Through Trustee notice in writing of any default
by any obligor upon the Certificates in the making of any such payment; and
(3) 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
PASS THROUGH TRUST AGREEMENT A
------------------------------
49
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 Lessor Notes in Pass Through Trustee's
------------------------------------------------------
Name.
- ----
The Pass Through Trustee agrees that all Lessor Notes, Specified
Investments and Permitted Government 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 Lessor Notes, Specified Investments or Permitted
Government Investments, as the case may be, in the register of the issuer of
such Lessor Notes, Specified Investments or Permitted Government Investments
under the applicable provisions of the Uniform Commercial Code in effect where
the Pass Through Trustee holds such Lessor Notes or Permitted Government
Investments, or other applicable law then in effect.
Section 7.15 Withholding Taxes; Information Reporting.
----------------------------------------
The Pass Through Trustee, as trustee of a grantor trust, shall exclude
and withhold from each distribution of principal, premium, 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 (i) 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 Holders of the
Certificates, (ii) to file any necessary withholding tax returns or statements
when due, and (iii) as promptly as possible after the payment thereof, to
deliver to each Holder of a Certificate appropriate documentation showing the
payment thereof, together with such additional documentary evidence as such
Holders 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. Any amounts withheld and paid to a relevant taxing authority
pursuant to this Section 7.15 shall be deemed to have been paid to the related
------------
Certificateholders for all purposes under the Operative Documents.
Section 7.16 Pass Through Trustee's Liens.
----------------------------
The Pass Through Trustee, in its individual capacity, agrees that it
will at its own cost and expense promptly take any action as may be necessary to
duly discharge and satisfy in full any mortgage, pledge, lien, charge,
encumbrance, security interest or claim on or with respect to the Trust Property
which is either (i) attributable to the Pass
PASS THROUGH TRUST AGREEMENT A
------------------------------
50
Through Trustee in its individual capacity and which is unrelated to the
transactions contemplated by this Pass Through Trust Agreement or any other
applicable Operative Document, or (ii) which is attributable to the Pass Through
Trustee as trustee hereunder or in its individual capacity and which arise out
of acts or omissions which are prohibited by this Pass Through Trust Agreement.
Section 7.17 Preferential Collection of Claims.
---------------------------------
The Pass Through Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship listed in Section 311(b) of
the Trust Indenture Act. If the Pass Through Trustee shall resign or be removed
as Pass Through Trustee, it shall be subject to Section 311(a) of the Trust
Indenture Act to the extent provided therein.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS
Section 8.1 The 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, 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, 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(b).
- -------
Section 8.2 Preservation of Information.
---------------------------
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 list furnished to the Pass Through Trustee as provided in
Section 7.12(b) 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 list
furnished to it as provided in Section 7.12(b) or Section 8.1, as the case may
--------------- -----------
be, upon receipt of a new list so furnished.
Section 8.3 Records by the Company.
----------------------
PASS THROUGH TRUST AGREEMENT A
------------------------------
51
The Company shall, at any time that the Certificates shall be subject
to the Trust Indenture Act, comply with Section 314 of the Trust Indenture Act
and shall file, furnish and deliver the reports, information, documents,
certificates and opinions required thereunder, and, at any time that the
Certificates shall be subject to the Trust Indenture Act, acknowledges and
agrees that, for purposes of Section 314 of the Trust Indenture Act, the Company
shall be considered to be the "obligor" upon the Certificates. Regardless of
whether or not the Certificates shall be subject to the Trust Indenture Act, the
Company shall deliver to the Pass Through Trustee the annual certificate
required under clause (4) of Section 314(a) of the Trust Indenture Act within
120 days following the end of each fiscal year of the Company ending after the
date hereof. The provisions of this Section 8.3 shall not be construed to
-----------
impose any obligation or liability on the Company to pay any of the principal,
premium, if any, or interest in respect of the Lessor Notes or the Certificates.
Section 8.4 Reports by the Pass Through Trustee.
-----------------------------------
On or before each May 15, the Pass Through Trustee shall, at any time
that the Certificates shall be subject to the Trust Indenture Act, transmit, in
the manner and to the extent required by Section 313(c) of the Trust Indenture
Act, any report required by Section 313(a) of the Trust Indenture Act to be
transmitted by the Pass Through Trustee to the Certificateholders.
ARTICLE IX
SUPPLEMENTAL TRUST AGREEMENTS
Section 9.1 Supplemental Trust Agreement Without Consent of
-----------------------------------------------
Certificateholder.
- -----------------
Without the consent of the Holder of any Certificates, the Company
may, and the Pass Through Trustee, at the Company's direction (subject to
Section 9.3) shall, at any time and from time to time enter into one or more
- -----------
agreements supplemental hereto or, if applicable, to the Registration Rights
Agreement in form satisfactory to the Pass Through Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the obligations of the Company
herein contained or of the Company's obligations under the Registration
Rights Agreement;
(2) to add to the covenants of the Company, for the protection of
the Holders of the Certificates in this Agreement or the Registration
Rights Agreement;
PASS THROUGH TRUST AGREEMENT A
------------------------------
52
(3) to surrender any right or power herein conferred upon the
Company in this Agreement or the Registration Rights Agreement;
(4) to cure any ambiguity, to correct or supplement any provision
in this Agreement or in the Registration Rights Agreement 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 as may be necessary or desirable; provided
--------
that any such action will not adversely affect the interests of the Holders
of the Certificates;
(5) to correct or amplify the description of property that
constitutes Trust Property or the conveyance of such property to the Pass
Through Trustee;
(6) to evidence and provide for a successor Pass Through Trustee;
(7) at any time that the Certificates shall be subject to the Trust
Indenture Act, to modify, eliminate or add to the provisions of this Pass
Through Trust Agreement to the extent as shall be necessary to qualify this
Pass Through Trust Agreement (including any supplemental agreement) under
the Trust Indenture Act or under any similar Federal statute hereafter
enacted, or 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;
(8) to modify, amend or supplement any provision herein to reflect
changes relating to the assumption and substitution of any Lessor Note
pursuant to Section 2.12 of a Lease Indenture;
------------
(9) to add, eliminate, or change any provision under this Pass
Through Trust Agreement that will not adversely affect the interests of the
Certificateholders;
(10) to comply with any requirement of the Commission, any
applicable law, rules or regulations of any exchange or quotation system on
which the Certificates are listed, any regulatory body or the Registration
Rights Agreement to effectuate the Exchange Offer; or
(11) to modify or eliminate provisions relating to the transfer or
exchange of Exchange Certificates or the Initial Certificates upon
consummation of the Exchange Offer or effectiveness of the Shelf
Registration Statement or the Exchange Offer Registration Statement;
PASS THROUGH TRUST AGREEMENT A
------------------------------
53
provided that in each case such supplemental agreement does not cause the Pass
- --------
Through Trust to become taxable as an "association" within the meaning of
Treasury Regulation Section 301.7701-2 or to be taxable as other than a "fixed
income trust" within the meaning of Treasury Regulation 301.7701.
Section 9.2 Supplemental Trust Agreements with Consent of
---------------------------------------------
Certificateholders.
- ------------------
With the consent of the Required Holders, by Act of said Holders
delivered to the Company and the Pass Through Trustee, the Company may (with the
consent of the Owner Lessors, 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 to this Agreement or the Registration Rights
Agreement 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 the
Registration Rights Agreement or of modifying in any manner the rights and
obligations of the Holders of the Certificates under this Pass Through Trust
Agreement or the Registration Rights Agreement; provided, however, that no such
-------- -------
supplemental agreement shall, without the consent of the Holder of each
Outstanding Certificate affected thereby:
(1) reduce in any manner the amount of, or delay the timing of, any
receipt by the Pass Through Trustee of payments on the Lessor Notes held in
the Pass Through Trust, or distributions that are required to be made
herein on any Certificate of such Pass Through Trust, or change any date of
payment on any such Certificate, or change the place of payment where, or
the coin or currency in which, any such Certificates payable, or impair the
right of any Holder of any such Certificate to institute suit for the
enforcement of any such payment or distribution error after the
Distribution Date or Special Distribution Date applicable thereto; or
(2) except as provided in this Pass Through Trust Agreement, permit
the disposition of any Lessor Note in the Trust Property, or permit the
creation of any lien on the Trust Property, or otherwise deprive any
Certificateholder of the benefit of the ownership of the Lessor Notes held
in the Pass Through Trust or the lien of the related Lease Indenture; or
(3) reduce the percentage of the aggregate Fractional Undivided
Interests which is required to approve any such supplemental agreement, or
reduce such percentage required for any waiver provided for in this Pass
Through Trust Agreement; or
(4) cause the Pass Through Trust to become taxable as an
"association", within the meaning of Treasury Regulation Section 301.7701-2
or to be taxable as
PASS THROUGH TRUST AGREEMENT A
------------------------------
54
other than a "fixed investment trust" within the meaning of Treasury Regulation
301.7701.
It shall not be necessary for any Act of Certificateholders under this
Section 9.2 to approve the particular form of any proposed supplemental
- -----------
agreement, but shall be sufficient if such Act shall approve the substance
thereof.
Section 9.3 Documents Affecting Immunity or Indemnity.
-----------------------------------------
If in the reasonable belief 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, 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 Supplemental Trust Agreements.
------------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental agreement permitted by this Article IX or the modifications thereby
of the trusts created by this Pass Through Trust Agreement, the Pass Through
Trustee shall be entitled to receive, and (subject to Section 7.1) 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 Supplemental Trust Agreements.
---------------------------------------
Upon the execution of any supplemental agreement under this Article
IX, 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 Holder of Certificates theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.6 Reference in Certificates to Supplemental 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, suitable notation may be made upon
Outstanding Certificates after proper presentation and demand.
PASS THROUGH TRUST AGREEMENT A
------------------------------
55
ARTICLE X
AMENDMENTS TO LEASE INDENTURES AND
OTHER LEASE FINANCING DOCUMENTS
Section 10.1 Amendment and Supplements to Lease Indenture and Other
------------------------------------------------------
Operative Documents.
- -------------------
In the event that the Pass Through Trustee, as holder of any Lessor
Note in trust for the benefit of the Certificateholders, receives a request for
a consent to any amendment, modification, waiver or supplement under any Lease
Indenture or other Operative Document that requires the consent of the holder of
such Lessor Note, 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. Any such notice shall describe the
proposed amendment, modification, waiver or supplement (or attach a copy
thereof). The Pass Through Trustee shall request from the Certificateholders
Directions as to (i) whether or not to direct the applicable Lease Indenture
Trustee to take or refrain from taking any action which a holder of such Lessor
Note has the option to direct, (ii) whether or not to give or execute any
waivers, consents, amendments, modifications or supplements as a holder of such
Lessor Note and (iii) how to vote any Lessor Note if a vote has been called for
with respect thereto. Any such request shall specify a date by which
Certificateholders are requested to respond. 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 Lessor Note, the
Pass Through Trustee shall vote or consent with respect to such Lessor Note in
the same proportion as the Certificates were actually voted by Acts of Holders
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 Lease Indenture Trustees of such consent to any amendment,
modification, waiver or supplement under the applicable Lease Indenture or other
Operative Document.
With respect to consents, approvals, waivers and authorizations which
under the terms of Section 6 of a Lease Indenture may be given by the applicable
---------
Lease Indenture Trustee without the necessity of the consent of any of the
holders of Lessor Notes, no consent, approval, waiver or authorization shall be
required hereunder on the part of the Pass Through Trustee or the
Certificateholders.
PASS THROUGH TRUST AGREEMENT A
------------------------------
56
ARTICLE XI
TERMINATION OF PASS THROUGH 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 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 if and the extent that any of the options, rights and
- --------- -------
privileges granted under this Pass Through Trust Agreement, would, in the
absence of the limitation imposed by this sentence, be invalid or unenforceable
as being in violation of the rule against perpetuities or any other rule or law
relating to the vesting of interest in property or the suspension of the power
of alienation of property, then it is agreed that notwithstanding any other
provision of this Pass Through Trust Agreement, such options, rights and
privileges, subject to the respective conditions hereof governing the exercise
of such options, rights and privileges, will be exercisable only during (a) the
longer of (i) a period which will end twenty-one (21) years after the death of
the last survivor of the descendants living on the date of the execution of this
Pass Through Trust Agreement of the following Presidents of the United States:
Franklin D. Roosevelt, Harry S. Truman, Dwight D. Eisenhower, John F. Kennedy,
Lyndon B. Johnson, Richard L. Nixon, Gerald R. Ford, James E. Carter, Ronald W.
Reagan, George H. W. Bush and William J. Clinton or (ii) the period provided
under the Uniform Statutory Rule Against Perpetuities or (b) the specific
applicable period of time expressed in this Pass Through Trust Agreement,
whichever of (a) or (b) is shorter.
Notice of any termination, specifying the 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 (at maturity, redemption or otherwise),
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 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 final payment, and (C) that the Record Date otherwise applicable to
such 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
PASS THROUGH TRUST AGREEMENT A
------------------------------
57
surrender of the Certificates, the Pass Through Trustee shall cause to be
distributed to Certificateholders amounts distributable on such 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 (or such lesser time as the Pass Through Trustee shall be satisfied, after
sixty (60) days' notice from the Company, is one month prior to the escheat
period provided under applicable law) after the final distribution date with
respect thereto, the Pass Through Trustee shall pay to the Lease Indenture
Trustees the appropriate amount of money relating to such Lease Indenture
Trustees and shall give written notice thereof to the Owner Lessors, the Owner
Participants 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 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 the 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.
PASS THROUGH TRUST AGREEMENT A
------------------------------
58
Section 12.3 Notice.
------
Unless otherwise expressly specified or permitted by the terms hereof,
all communications and notices provided for herein shall be in writing or by a
telecommunications device capable of creating a written record, and any such
notice shall become effective (a) upon personal delivery thereof, including,
without limitation, by overnight mail or courier service, (b) in the case of
notice by United States mail, certified or registered, postage prepaid, return
receipt requested, upon receipt thereof, or (c) in the case of notice by such a
telecommunications device, upon transmission thereof, provided such transmission
is promptly confirmed by either of the methods set forth in clauses (a) or (b)
above, in each case addressed to each party at the address for such party
provided in Section 16.5 of the related Participation Agreement or at such other
------------
address as such party may from time to time designate by written notice to each
of the other parties hereto. A copy of all notices provided for herein shall be
sent by the party giving such notice to each of the other parties hereto.
Section 12.4 Governing Law.
-------------
THIS PASS THROUGH TRUST AGREEMENT, THE CERTIFICATES AND THE RIGHTS AND
DUTIES OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Section 12.5 Severability of Provisions.
--------------------------
If any one or more of the covenants, agreements, provisions or terms
of this Pass Through Trust Agreement shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Pass Through Trust Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Pass Through Trust Agreement or
the Pass Through Trust, or of the Certificates or the rights of the Holders
thereof.
Section 12.6 Trust Indenture Act Controls.
----------------------------
Upon the declaration by the Commission of the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration Statement, this
Agreement shall become subject to the provisions of the Trust Indenture Act and
shall, to the extent applicable, be governed by such provisions. From and after
the declaration by the Commission of the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, if any provision of
this Agreement limits, qualifies or conflicts with another provision which is
required to be included in this Agreement by the Trust Indenture Act, the
required provision shall control.
PASS THROUGH TRUST AGREEMENT A
------------------------------
59
Section 12.7 Effect of Heading and Table of Contents.
---------------------------------------
The Article, Section and subsection headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 12.8 Successors and Assigns.
----------------------
All covenants, agreements, representations and warranties in this Pass
Through Trust Agreement by the Pass Through Trustee and 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 12.9 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 Company, the Pass
Through Trustee, the Owner Lessors, the Owner Participants and the Lease
Indenture Trustees, and their respective successors, and the Holders of
Certificates, any benefit or any legal or equitable right, remedy or claim under
this Pass Through Trust Agreement.
Section 12.10 Legal Holidays.
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In any case where any 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 Distribution Date or Special
Distribution Date and (provided that such payment is made on such next
succeeding Business Day) no interest shall accrue during the intervening period.
Section 12.11 Counterparts.
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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 and by the separate
parties hereto on separate 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.
PASS THROUGH TRUST AGREEMENT A
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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 and their respective seals, duly attested, to be hereunto affixed, all
as of the day and year first above written.
SOUTHERN ENERGY MID-ATLANTIC, LLC
By: /s/ Raymond Haley
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Name: Raymond Haley
Title: Vice President
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
As Pass Through Trustee
By: /s/ Nicole Poole
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Name: Nicole Poole
Title: Assistant Secretary
PASS THROUGH TRUST AGREEMENT A
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