EXHIBIT 4.a.1
PASS THROUGH TRUST AGREEMENT
Dated as of
February 1, 1993
Amended and Restated as of October 1, 1995
between
NATIONSBANK, NATIONAL ASSOCIATION (CAROLINAS),
as Pass Through Trustee,
and
FEDERAL EXPRESS CORPORATION
CROSS REFERENCE SHEET
Between
Provisions of the Trust Indenture Act of 1939, as amended,
and the Pass Through Trust Agreement:
Section of
Section of the Act the Agreement
310(a)(1) and (2)........................................................10.02
310(a)(3)................................................................10.05
310(a)(4)....................................................................*
(*)310(a)(5).................................................................*
310(b)(i)-(iii)...................................................10.01, 10.03
310(b)(remainder)............................................................*
310(c)............................................................Inapplicable
311(a).......................................................................*
311(b).......................................................................*
311(c)............................................................Inapplicable
312(a)..............................................................2.12, 4.01
312(b).......................................................................*
(*)* Intentionally deleted.
312(c)....................................................................4.02
313(a)....................................................................4.04
313(b)(1)....................................................................*
313(b)(2)....................................................................*
313(c)....................................................................4.04
313(d).......................................................................*
314(a)....................................................................4.03
314(b)............................................................Inapplicable
314(c)(1) and (2)........................................................13.07
314(c)(3).........................................................Inapplicable
314(d)(1)....................................................................*
314(d)(2)....................................................................*
314(d)(3)....................................................................*
314(e)...................................................................13.07
314(f)............................................................Inapplicable
315(a), (c) and (d)..........................................................*
315(b)....................................................................7.11
315(e).......................................................................*
316(a)(1)...........................................................7.09, 7.10
316(a)(2)....................................................................*
316(a)(last sentence).....................................................6.04
316(b)....................................................................7.08
316(c).................................................................6.01(b)
317(a)..............................................................7.03, 7.05
317(b)....................................................................3.04
318(a)...................................................................13.08
- --------------
*Intentionally deleted.
Page
TABLE OF CONTENTS
PARTIES.................................................................... 1
RECITALS................................................................... 1
ARTICLE I
DEFINITIONS
ARTICLE II
ISSUANCE OF PASS THROUGH CERTIFICATES;
ACQUISITION OF EQUIPMENT CERTIFICATES
SECTION 2.01. Amount Unlimited; Issuable in Series; Series Supplements. 11
SECTION 2.02. Acquisition of Equipment Certificates.................... 13
SECTION 2.03. Initial Certificateholders as Grantors................... 15
SECTION 2.04. Limitation of Powers..................................... 15
SECTION 2.05. Execution of Pass Through Certificates................... 16
SECTION 2.06. Certificate of Authentication............................ 16
SECTION 2.07. Form and Denomination of Pass Through Certificates....... 17
SECTION 2.08. Registration, Transfer and Exchange...................... 17
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Pass
Through Certificates................................... 18
SECTION 2.10. Cancellation of Pass Through Certificates; Destruction
Thereof................................................ 19
SECTION 2.11. Temporary Pass Through Certificates...................... 20
SECTION 2.12. Pass Through Certificates Issuable in the Form of a
Registered Global Certificate............................ 20
ARTICLE III
CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 3.01. Covenants of the Company................................. 22
SECTION 3.02. Offices for Payments; Registrar.......................... 23
SECTION 3.03. Representations and Warranties of the Pass Through
Trustee............................................... .24
SECTION 3.04. Paying Agents............................................ 25
SECTION 3.05. No Representations or Warranties as to Documents......... 25
SECTION 3.06. Payments from Trust Property Only........................ 26
SECTION 3.07. Limitation of the Company's Liability.................... 26
ARTICLE IV
CERTIFICATEHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE PASS THROUGH TRUSTEE
SECTION 4.01. Certificateholder Lists; Ownership of Pass Through
Certificates........................................... 26
SECTION 4.02. Disclosure of Certificateholder Lists.................... 27
SECTION 4.03. Reports by the Company................................... 27
SECTION 4.04. Reports by the Pass Through Trustee...................... 28
ARTICLE V
RECEIPT AND DISTRIBUTION OF INCOME
AND PROCEEDS FROM THE TRUST PROPERTY
SECTION 5.01. Certificate Account and Special Payments Account......... 28
SECTION 5.02. Distributions from Certificate Account and Special
Payments Account....................................... 29
SECTION 5.03. Statements to Certificateholders......................... 30
SECTION 5.04. Investment of Special Payment Moneys..................... 31
SECTION 5.05. Withholding Taxes........................................ 31
ARTICLE VI
CONCERNING THE CERTIFICATEHOLDERS
SECTION 6.01. Evidence of Action Taken by Certificateholders........... 32
SECTION 6.02. Proof of Execution of Instruments and of Holding of
Certificates........................................... 32
SECTION 6.03. Certificateholders to Be Treated as Owners............... 33
SECTION 6.04. Pass Through Certificates Owned by the Company and
Related Owner Trustees Deemed Not Outstanding.......... 33
SECTION 6.05. Right of Revocation of Action Taken...................... 34
SECTION 6.06. ERISA Plan Prohibition................................... 34
ARTICLE VII
REMEDIES OF PASS THROUGH TRUSTEE
AND CERTIFICATEHOLDERS
SECTION 7.01. Events of Default........................................ 35
SECTION 7.02. Incidents of Sale of Equipment Certificates.............. 36
SECTION 7.03. Pass Through Trustee May Prove Debt...................... 36
SECTION 7.04. Remedies Cumulative...................................... 37
SECTION 7.05. Suits for Enforcement.................................... 37
SECTION 7.06. Discontinuance of Proceedings............................ 38
SECTION 7.07. Limitations on Suits by Certificateholders............... 38
SECTION 7.08. Unconditional Right of Certificateholders to Receive
Principal, Interest and Premium, and to Institute
Certain Suits.......................................... 39
SECTION 7.09. Control by Certificateholders............................ 39
SECTION 7.10. Waiver of Past Events of Default......................... 40
SECTION 7.11. Notice of Pass Through Defaults.......................... 40
ARTICLE VIII
CONCERNING THE PASS THROUGH TRUSTEE
SECTION 8.01. Acceptance by Pass Through Trustee....................... 41
SECTION 8.02. Pass Through Trustee's Liens............................. 41
SECTION 8.03. Certain Rights of the Pass Through Trustee............... 41
SECTION 8.04. Pass Through Trustee Not Responsible for Recitals........ 43
SECTION 8.05. Pass Through Trustee and Agents May Hold Pass Through
Certificates; Collections.............................. 43
SECTION 8.06. Moneys Held by Pass Through Trustee...................... 43
SECTION 8.07. Right of Pass Through Trustee to Rely on Officer's
Certificate............................................ 43
SECTION 8.08. Compensation............................................. 44
ARTICLE IX
INDEMNIFICATION OF
PASS THROUGH TRUSTEE BY THE COMPANY
ARTICLE X
SUCCESSOR TRUSTEES
SECTION 10.01. Resignation and Removal of Pass Through Trustee;
Appointment of Successor.............................. 45
SECTION 10.02. Persons Eligible for Appointment as Pass Through
Trustee............................................... 47
SECTION 10.03. Acceptance of Appointment by Successor Trustee.......... 47
SECTION 10.04. Merger, Conversion, Consolidation or Succession to
Business of Pass Through Trustee...................... 49
SECTION 10.05. Appointment of Separate Pass Through Trustees........... 49
ARTICLE XI
SUPPLEMENTS AND AMENDMENTS TO THIS
PASS THROUGH AGREEMENT AND OTHER DOCUMENTS
SECTION 11.01. Supplemental Agreements Without Consent of
Certificateholders.................................... 51
SECTION 11.02. Supplemental Agreements With Consent of
Certificateholders.................................... 53
SECTION 11.03. Effect of Supplemental Agreements....................... 54
SECTION 11.04. Documents to Be Given to Trustee........................ 54
SECTION 11.05. Notation on Pass Through Certificates in Respect of
Supplemental Agreements............................... 55
SECTION 11.06. Trust Indenture Act..................................... 55
SECTION 11.07. Revocation and Effect of Consents....................... 55
SECTION 11.08. Amendments, Waivers, etc., of Related Indenture
Documents............................................. 55
ARTICLE XII
TERMINATION OF PASS THROUGH TRUSTS;
UNCLAIMED MONEYS
SECTION 12.01. Termination of Pass Through Trusts...................... 56
SECTION 12.02. Application by Pass Through Trustee of Funds Deposited
for Payment of Pass Through Certificates.............. 56
SECTION 12.03. Repayment of Moneys Held by Paying Agent................ 57
SECTION 12.04. Transfer of Moneys Held by Pass Through Trustee and
Paying Agent Unclaimed for Two Years and Eleven
Months................................................ 57
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Capacity in Which Acting................................ 57
SECTION 13.02. No Legal Title to Trust Property in Certificateholders.. 57
SECTION 13.03. Certificates Nonassessable and Fully Paid............... 58
SECTION 13.04. Pass Through Agreement for the Benefit of the Company,
the Pass Through Trustee and the Certificateholders... 58
SECTION 13.05. Limitation on Rights of Certificateholders.............. 58
SECTION 13.06. Notices................................................. 58
SECTION 13.07. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein.................... 59
SECTION 13.08. Conflict of Any Provision of Pass Through Agreement with
the Trust Indenture Act............................... 60
SECTION 13.09. Severability............................................ 61
SECTION 13.10. No Oral Modifications or Continuing Waivers............. 61
SECTION 13.11. Successors and Assigns.................................. 61
SECTION 13.12. Headings................................................ 61
SECTION 13.13. Normal Commercial Relations............................. 61
SECTION 13.14. Governing Law; Counterpart Form......................... 61
SECTION 13.15. Distributions Due on Days Other than Business Days...... 62
EXHIBIT A Form of Pass Through Certificate
PASS THROUGH TRUST AGREEMENT
PASS THROUGH TRUST AGREEMENT dated as of February 1, 1993, as amended
and restated as of October 1, 1995, between FEDERAL EXPRESS CORPORATION, a
Delaware corporation (the "Company"), and NATIONSBANK, NATIONAL ASSOCIATION
(CAROLINAS) (formerly known as NationsBank of South Carolina, National
Association), a national banking association organized under the laws of the
United States of America, as Pass Through Trustee (together with any successor
hereunder or under any Pass Through Trust as herein provided, the "Pass
Through Trustee").
RECITALS
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article I hereof;
WHEREAS, the Company and NationsBank, National Association (Carolinas)
are parties to a Pass Through Trust Agreement dated as of February 1, 1993;
WHEREAS, from time to time the Company will enter into a Series
Supplement with the Pass Through Trustee named therein in accordance with this
Pass Through Agreement pursuant to which the Pass Through Trustee will declare
the creation of a separate Pass Through Trust for the benefit of the
Certificateholders of the Series of Pass Through Certificates to be issued
pursuant to such Pass Through Trust, and the initial Certificateholders of
such Series, as the grantors of such Pass Through Trust, by their respective
acceptances of such Pass Through Certificates, will join in the creation of
such Pass Through Trust;
WHEREAS, the Pass Through Certificates of each Series will evidence
fractional undivided interests in the Pass Through Trust pursuant to which
they will be issued, and will have no rights, benefits or interest in respect
of any other separate Pass Through Trust or the Trust Property held in any
such other Pass Through Trust;
WHEREAS, for each Pass Through Trust, the Pass Through Trustee will
purchase one or more issues of Equipment Certificates of the same interest
rate as, and final maturity dates not later than the final scheduled Regular
Distribution Date of, the Series of Pass Through Certificates to be issued in
respect of such Pass Through Trust and will hold such Equipment Certificates
in trust as Trust Property for the benefit of the Certificateholders of such
Series;
WHEREAS, to facilitate the sale of Equipment Certificates to, and the
purchase of Equipment Certificates by, the Pass Through Trustee on behalf of
each such Pass Through Trust, the Company has duly authorized the execution
and delivery of this Pass Through Agreement and each Series Supplement as the
"issuer," as such term is defined in and solely for purposes of the Securities
Act, of the Pass Through Certificates to be issued in respect of each Pass
Through Trust and as the "obligor," as such term is defined in and solely for
purposes of the Trust Indenture Act, with respect to all such Pass Through
Certificates and is undertaking to perform certain administrative and
ministerial duties hereunder and is also undertaking to pay the fees and
expenses of the Pass Through Trustee;
WHEREAS, this Pass Through Agreement, as amended or supplemented from
time to time, is subject to the provisions of the Trust Indenture Act and
shall, to the extent applicable, be governed by such provisions;
WHEREAS, NationsBank, National Association (Carolinas), as Pass
Through Trustee, and the Company wish to effect certain corrections and
supplements, none of which is material or adversely affects the interests of
the Certificateholders of any Series, to this Pass Through Agreement as
originally executed and delivered;
IT IS HEREBY COVENANTED AND AGREED by and between the parties hereto
that the Pass Through Agreement as originally executed and delivered is hereby
amended and restated to read as follows:
ARTICLE I
DEFINITIONS
The following terms (except as otherwise expressly provided or unless
the context otherwise clearly requires) for all purposes of this Pass Through
Agreement as amended and restated hereby have the respective meanings
specified in this Section, as may be further amended or supplemented by the
provisions of the Series Supplement for a particular Series. All other terms
used in this Pass Through Agreement as so amended and restated that are
defined in the Trust Indenture Act (as defined below) or the definitions of
which in the Securities Act (as defined below) are referred to in the Trust
Indenture Act (except as herein otherwise expressly provided or unless the
context otherwise clearly requires), have the meanings assigned to such terms
in the Trust Indenture Act and in the Securities Act as in force at the date
of this Pass Through Agreement as amended and restated. All accounting terms
used and not expressly defined herein have the meanings given to them in
accordance with generally accepted accounting principles, and the term
"generally accepted accounting principles" means the accounting principles
that are generally accepted at the date or time of any computation or
otherwise at the date hereof. The words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Pass Through Agreement as
amended and restated as a whole and not to any particular Article, Section or
other subdivision. References to designated "Articles," "Sections,"
"subsections" and other subdivisions of this Pass Through Agreement are to the
designated Articles, Sections, subsections and other subdivisions of this Pass
Through Agreement as amended and restated. The terms defined in this Article
include the plural as well as the singular.
"Affiliate" has, for any Person, the meaning specified in Rule 0-2
under the Trust Indenture Act.
"Business Day" means, for any Series, any day other than Saturday,
Sunday or other day on which banking institutions in the States of New York or
Tennessee, or any other state in which the Pass Through Trustee or any Related
Indenture Trustee or Related Owner Trustee for the Pass Through Trust for such
Series maintains an office for the receipt or disbursement of funds for the
transactions contemplated herein or in any Indenture Documents for the
Equipment Certificates that constitute Trust Property of such Pass Through
Trust, are authorized or required by law to close.
"Certificate Account" means, for any Pass Through Trust, the account
or accounts created and maintained for such Pass Through Trust pursuant to
Section 5.01(a) hereof and the related Series Supplement.
"Certificateholder" means, for any Series, the Person who is the
registered holder of any Pass Through Certificate as evidenced on the Register
for such Series.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution and delivery of this Pass Through Agreement such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"Company" means Federal Express Corporation, a Delaware corporation,
and its permitted successors and assigns hereunder.
"Corporate Trust Office" means the corporate trust office of the Pass
Through Trustee in the city in which the Pass Through Trustee's corporate trust
business shall be administered and which the Pass Through Trustee shall have
specified by notice in writing to the Company and the Certificateholders of
each Series.
"Cut-off Date for Pass Through Trust" means, for any Pass Through
Trust, the date specified as such in the related Series Supplement, provided
that in no event shall such Cut-off Date for Pass Through Trust be later than
90 days after the creation of such Pass Through Trust.
"Delivery Date" means, for any Pass Through Trust, the date specified
in the related Series Supplement for the purchase of the related Equipment
Certificates, which date may be delayed for any such Equipment Certificates as
provided in Section 2.02 hereof.
"Delayed Delivery Notice" means, for any Pass Through Trust, a
certificate signed by a Responsible Officer of the Company (i) requesting that
the Pass Through Trustee temporarily delay purchase of any related Equipment
Certificates to a date later than the applicable Issuance Date, (ii) stating
the amount of the purchase price of each such Equipment Certificate and the
aggregate purchase price of all such Equipment Certificates, (iii) stating the
reasons for such delay and (iv) with respect to any Participation Agreement
for such delayed Equipment Certificates, either (1) setting or resetting the
Delivery Date (which shall be on or prior to the applicable Cut-off Date for
Pass Through Trust), or (2) indicating that such Delivery Date will be set by
subsequent written notice not less than one Business Day prior to such new
Delivery Date (which shall be on or prior to the applicable Cut-off Date for
Pass Through Trust).
"Delayed ECs" means, for any Pass Through Trust, any Equipment
Certificates that are the subject of a Delayed Delivery Notice.
"Deposit Trust" means a separate trust created pursuant to a Deposit
Trust Agreement.
"Deposit Trust Account" means, for any Deposit Trust, the deposit
account established and maintained for such Deposit Trust pursuant to the
related Deposit Trust Agreement.
"Deposit Trust Agreement" means an agreement in form and substance
reasonably satisfactory to the Company and the Pass Through Trustee for the
purposes described in Section 2.02 hereof, between the Company, as depositor,
the Pass Through Trustee and the Deposit Trustee.
"Deposit Trust Funds" means, for any Delayed ECs, an amount equal to
the purchase price of such Delayed ECs.
"Deposit Trustee" means, for any Deposit Trust, the Person,
acceptable to the Pass Through Trustee, defined as such in the related Deposit
Trust Agreement.
"Depository" means, for any Series, the depository of the Registered
Global Certificate, if any, representing the Pass Through Certificates of such
Series and any successor to such depository appointed by the Company pursuant
hereto. Such depository initially shall be The Depository Trust Company, a
New York corporation, or any successor thereto registered under the Exchange
Act or other applicable statute or regulation.
"Distribution Date" means, for any Series, any Regular Distribution
Date or Special Distribution Date or both for such Series.
"Dollars" and "$" mean lawful currency of the United States of
America.
"Equipment Certificate" means, for any Pass Through Trust, any of the
Equipment Trust Certificates or Equipment Purchase Certificates, issued
pursuant to an Indenture and described in, or on a schedule attached to, the
Series Supplement for such Pass Through Trust.
"Equipment Purchase Certificate" means, for any Pass Through Trust,
any "Equipment Purchase Certificate," as such term is defined in the related
Indenture, issued by the Company pursuant to an Indenture and described in, or
on a schedule attached to, the Series Supplement for such Pass Through Trust,
which is to be held by the Pass Through Trustee as part of the Trust Property
of such Pass Through Trust.
"Equipment Trust Certificate" means, for any Pass Through Trust, any
"Equipment Trust Certificate" or "Certificate," as the case may be, as such
term is defined in the related Indenture, issued by an Owner Trustee pursuant
to such Indenture and described in, or on a schedule attached to, the Series
Supplement for such Pass Through Trust, which is to be held by the Pass
Through Trustee as part of the Trust Property of such Pass Through Trust.
"Event of Default" has the meaning specified in Section 7.01 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fractional Undivided Interest" means, for any Pass Through
Certificate, the fractional undivided interest in the related Pass Through
Trust that is evidenced thereby.
"Government Obligations" means direct obligations of the United
States of America which are not callable, redeemable or payable prior to
maturity, in whole or in part, directly or indirectly, by any Person.
"Indenture" means (i) for any Equipment Trust Certificate, the trust
indenture and security agreement among the Indenture Trustee, the Owner
Trustee and, if applicable, the Company pursuant to which such Equipment Trust
Certificate is issued and (ii) for any Equipment Purchase Certificate, the
trust indenture and security agreement between the Indenture Trustee and the
Company pursuant to which such Equipment Purchase Certificate is issued, in
each case as such agreement may be modified, supplemented or amended from time
to time in accordance with the related Indenture Documents.
"Indenture Default" means, for any Indenture, any event or condition
defined as a "Default" under such Indenture.
"Indenture Documents" means (i) for any Equipment Trust Certificate,
the related Indenture, the related Trust Agreement and Lease, in each case as
defined in such Indenture, and the related Participation Agreement and (ii)
for any Equipment Purchase Certificate, the related Indenture, the related
Indenture Addendum, as defined in such Indenture, and the related
Participation Agreement.
"Indenture Event of Default" means, for any Indenture, any event or
condition defined as an "Indenture Event of Default" in such Indenture.
"Indenture Trustee" means, for any Equipment Certificate, the Person
defined as such in the related Indenture.
"Initial Regular Distribution Date" means, for any Pass Through
Trust, the first Regular Distribution Date on which a Scheduled Payment is to
be made following the Issuance Date for such Pass Through Trust.
"Issuance Date" means, for any Pass Through Trust, the date of the
issuance of the related Pass Through Certificates.
"Lease" means, for any Equipment Trust Certificate, the agreement
between the Company, as lessee, and an Owner Trustee, as lessor, that is
defined as the "Lease" in the related Indenture.
"Letter of Representations" means, for any Series, a letter from the
Company and the Pass Through Trustee to, and accepted by, the Depository in
form and substance satisfactory to the Company and the Pass Through Trustee
for the purposes of the related Series Supplement, as such letter may be
modified or supplemented, or any successor letter thereto.
"Lien" means any mortgage, pledge, lien, charge, disposition of title,
encumbrance, lease or security interest.
"Majority in Interest of Certificateholders" means, for any Series at
any time, Pass Through Certificates of such Series then Outstanding (or the
proxy therefor) representing in the aggregate not less than a majority of the
aggregate Fractional Undivided Interests of the Pass Through Certificates then
Outstanding under the related Pass Through Trust.
"Officer's Certificate" means a certificate signed by a Responsible
Officer of the Company, any Indenture Trustee or any Owner Trustee, as the
case may be, delivered to the Pass Through Trustee. Each such certificate
shall include the statements provided for in Section 13.07 hereof.
"Opinion of Counsel" means a written opinion of legal counsel, who in
the case of counsel (a) for the Company may be (i) an attorney employed by the
Company who is generally empowered to deliver such written opinions, (ii)
Davis Polk & Wardwell or a successor firm or (iii) other counsel designated by
the Company and reasonably satisfactory to the Pass Through Trustee and (b)
for any Owner Trustee or Indenture Trustee, an attorney selected by such
Person and reasonably satisfactory to the Pass Through Trustee.
"Outstanding" means, when used with respect to Pass Through
Certificates of any Series, as of the date of determination and subject to the
provisions of Section 6.04 hereof, all Pass Through Certificates theretofore
authenticated and delivered for such Series, with the exception of the
following:
(i) Pass Through Certificates theretofore cancelled by the Pass
Through Trustee or delivered to the Pass Through Trustee for cancellation
pursuant to Section 2.10 hereof;
(ii) All Pass Through Certificates of such Series if money in the
amount required to make the final distribution thereon in accordance with
Section 12.01 hereof has been theretofore deposited with the Pass Through
Trustee in trust for the Certificateholders of such Series pending such
final distribution; and
(iii) Pass Through Certificates in exchange for or in lieu of which
other Pass Through Certificates have been authenticated and delivered
pursuant to Article II hereof.
"Overdue Scheduled Payment" means, for any Pass Through Trust, any
Scheduled Payment that is not received within five Business Days after the
Regular Distribution Date applicable to such Scheduled Payment.
"Owner Participant" means, for any Equipment Trust Certificate, the
Person defined as such in the related Indenture.
"Owner Trustee" means, for any Equipment Trust Certificate, the
Person defined as such in the related Indenture.
"Participation Agreement" means (i) for any Equipment Trust
Certificate, the agreement among the Company, the Owner Participant, the Owner
Trustee, the Indenture Trustee, the Pass Through Trustee and, if applicable,
each Original Loan Participant (as defined in such Participation Agreement),
that is defined as the "Participation Agreement" in the related Indenture and
pursuant to which the Pass Through Trustee agrees to purchase such Equipment
Trust Certificate upon the issuance thereof by such Owner Trustee and (ii) for
any Equipment Purchase Certificate, the agreement among the Company, the
Indenture Trustee and the Pass Through Trustee that is defined as the
"Transfer Agreement" in the related Indenture and pursuant to which the Pass
Through Trustee agrees to purchase such Equipment Purchase Certificate from
the Banks (as defined in such Participation Agreement).
"Pass Through Agreement," "this Pass Through Agreement" and other like
words mean this Pass Through Trust Agreement as amended and restated hereby and
as the same may be further modified, supplemented or amended from time to time
in accordance with the provisions hereof, but does not include, unless
otherwise specified, any Series Supplement.
"Pass Through Certificate" means, for any Series, any of the
certificates executed, authenticated and delivered for such Series by the Pass
Through Trustee, in accordance with this Pass Through Agreement and pursuant
to the related Series Supplement.
"Pass Through Default" means, for any Pass Through Trust, an Event of
Default or an event or condition that, with the giving of notice or the lapse
of time or both, would become an Event of Default.
"Pass Through Trust" means a separate trust created in accordance
with this Pass Through Agreement by a Series Supplement incorporating the
provisions hereof, as such provisions may be amended or supplemented thereby,
the estate of which consists of the related Trust Property.
"Pass Through Trustee" means the institution executing this Pass
Through Agreement as Pass Through Trustee, or its successor in interest, and
any successor or other trustee appointed as provided herein; provided that if
the same institution is not acting as the Pass Through Trustee in respect of
all Series, the phrase "the Pass Through Trustee" shall, unless the context
otherwise requires, mean, as to any Series, the institution named in the
applicable Series Supplement as Pass Through Trustee in respect of such
Series, or its successor in interest and any successor or other trustee
appointed as provided herein.
"Paying Agent" has the meaning set forth in Section 3.04 hereof.
"Permitted Investments" means any Government Obligations.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, nonincorporated organization
or government or any agency or political subdivision thereof.
"Pool Balance" means, for any Pass Through Trust, as of any date of
determination the aggregate unpaid principal amount of the Equipment
Certificates that constitute Trust Property of such Pass Through Trust on such
date plus the amount of the principal payments on such Equipment Certificates
held by the Pass Through Trustee and not yet distributed plus the amount of
any moneys transferred to the Company and deposited in the related Deposit
Trust Account (other than earnings thereon and without giving effect to any
losses on investments thereof). The Pool Balance as of any Regular
Distribution Date or Special Distribution Date shall be computed after giving
effect to the payment of principal, if any, on such Equipment Certificates and
the distribution thereof being made on that date.
"Pool Factor" means, for any Pass Through Trust, as of any date of
determination the quotient (rounded to the seventh decimal place) computed by
dividing (i) the Pool Balance by (ii) the aggregate original amount of the
Pass Through Certificates of the related Series. The Pool Factor as of any
Regular Distribution Date or Special Distribution Date shall be computed after
giving effect to the payment of principal, if any, on such Equipment
Certificates and the distribution thereof being made on that date.
"Record Date," for any Series, means, (i) for any Regular
Distribution Date, the date specified in the related Series Supplement as the
Record Date for such Regular Distribution Date and (ii) for any Special
Distribution Date, the 15th day preceding such Special Distribution Date, in
any event, whether or not such date is a Business Day.
"Register" has the meaning set forth in Section 3.02 hereof.
"Registered Global Certificate" means, for any Series, each Pass
Through Certificate, if any, issued to the Depository in accordance with
Article II hereof and bearing the legend prescribed in Section 2.12(a) hereof.
"Registrar" has the meaning set forth in Section 3.02 hereof.
"Regular Distribution Date" means, for any Pass Through Trust, any
date specified in the related Series Supplement for the distribution of any
Scheduled Payment from such Pass Through Trust to the related
Certificateholders.
"Related Indenture Trustee" means, for any Pass Through Trust, any
Indenture Trustee under an Indenture relating to any Equipment Certificate that
constitutes Trust Property thereof, and "Related Indenture Trustees" means all
such Indenture Trustees for all such Equipment Certificates constituting Trust
Property thereof.
"Related Owner Participant" means, for any Pass Through Trust, any
Owner Participant under a Trust Agreement relating to any Equipment Trust
Certificate that constitutes Trust Property, and "Related Owner Participants"
means all such Owner Participants for all such Equipment Trust Certificates
constituting Trust Property thereof.
"Related Owner Trustee" means, for any Pass Through Trust, any Owner
Trustee under a Trust Agreement relating to any Equipment Trust Certificate
that constitutes Trust Property, and "Related Owner Trustees" means all such
Owner Trustees for all such Equipment Trust Certificates constituting Trust
Property thereof.
"Responsible Officer" means the president or any other officer with
authority of at least a vice president; or, in the case of the Pass Through
Trustee, an officer or assistant officer of the Pass Through Trustee in its
Corporate Trust Office.
"Scheduled Payment" means, for any Pass Through Trust, any scheduled
payment of principal of (whether by installment or redemption or otherwise) and
interest on any Equipment Certificate that constitutes Trust Property thereof
to be made in the amounts and on the date set forth for such payment in such
Equipment Certificate, but does not include any Overdue Scheduled Payment.
"Securities Act" means the Securities Act of 1933, as amended.
"Series" means a separate series of Pass Through Certificates issued
pursuant to this Pass Through Agreement and a Series Supplement.
"Series Supplement" means an agreement executed and delivered by the
Company and the Pass Through Trustee in accordance with this Pass Through
Agreement, incorporating the provisions hereof, as amended or supplemented
thereby, and creating a separate Pass Through Trust for the benefit of the
Certificateholders of the Series of Pass Through Certificates to be issued
under such Pass Through Trust.
"Special Distribution Date" means, for any Pass Through Trust, any
date specified in the related Series Supplement for the distribution of any
Special Payment from such Pass Through Trust to the related
Certificateholders.
"Special Payment" means, for any Pass Through Trust, any payment
(including any Overdue Scheduled Payment) other than a Scheduled Payment on any
Equipment Certificate that constitutes Trust Property thereof, any proceeds
from the sale of such Equipment Certificate pursuant to Article VII hereof or
any payment by the Company pursuant to the last two paragraphs of Section
2.02(b) hereof.
"Special Payments Account" means, for any Pass Through Trust, the
account or accounts created and maintained for such Pass Through Trust
pursuant to Section 5.01(b) hereof and the related Series Supplement.
"Specified Investments" has, for any Deposit Trust, the meaning set
forth for such term in the related Deposit Trust Agreement.
"Trust Agreement" means, for any Equipment Trust Certificate, the
agreement between an Owner Trustee and an Owner Participant that is defined as
the "Trust Agreement" in the related Indenture.
"Trust Indenture Act" means (except as otherwise provided in Sections
4.04, 11.01, 11.02 and 11.06) the Trust Indenture Act of 1939, as amended, as
in force at the date as of which this Pass Through Agreement was first
qualified under such Act.
"Trust Property" means, for any Pass Through Trust, all money,
instruments, including the related Equipment Certificates, and other property
held as the property of such Pass Through Trust, including all distributions
thereon and proceeds thereof.
ARTICLE II
ISSUANCE OF PASS THROUGH CERTIFICATES;
ACQUISITION OF EQUIPMENT CERTIFICATES
SECTION 2.01. Amount Unlimited; Issuable in Series; Series
Supplements. (a) The aggregate amount of Pass Through Certificates that may
be authenticated and delivered in accordance with this Pass Through Agreement
is unlimited. The Pass Through Certificates may be issued from time to time
in one or more Series, each Series relating to a separate Pass Through Trust,
and shall be designated generally as the "Pass Through Certificates," with
further designations added or incorporated in the title for the Pass Through
Certificates of any Series as specified in the related Series Supplement.
Each Pass Through Certificate shall bear upon its face the designation so
selected for the Series to which it belongs. All Pass Through Certificates of
the same Series shall be substantially identical except as to denomination and
as may otherwise be provided in the related Series Supplement. The Pass
Through Certificates of each Series will evidence fractional undivided
interests in the separate Pass Through Trust formed by the related Series
Supplement, and will have no rights, benefits or interest in respect of any
other separate Pass Through Trust or the Trust Property held in such other
Pass Through Trust. All Pass Through Certificates of the same Series shall be
in all respects equally and ratably entitled to the benefits of the related
Pass Through Trust without preference, priority, or distinction on account of
the actual time or times of authentication and delivery, all in accordance
with the terms and provisions of this Pass Through Agreement and the related
Series Supplement.
(b) The following matters shall be established for the Pass Through
Certificates of each Series in a Series Supplement executed and delivered by
the Company and the Pass Through Trustee:
(1) the formation of the Pass Through Trust in which the Pass Through
Certificates of such Series evidence fractional undivided interests and its
designation (which designation shall distinguish such Pass Through Trust
from each other Pass Through Trust);
(2) the specific title of the Pass Through Certificates of such
Series (which title shall distinguish the Pass Through Certificates of the
Series from each other Series);
(3) subject to Section 2.02(a) hereof, any limit upon the aggregate
amount of the Pass Through Certificates of such Series that may be
authenticated and delivered under this Pass Through Agreement;
(4) the related Cut-off Date for Pass Through Trust;
(5) the related Regular Distribution Dates;
(6) the related Special Distribution Dates;
(7) if other than as provided in Section 3.02 hereof, the Registrar
or the Paying Agent for such Series, including any Co-Registrar or
additional Paying Agent;
(8) if other than as provided in Section 2.07 hereof, the
denominations in which the Pass Through Certificates of such Series are
issuable;
(9) the specific form of the Pass Through Certificates of such
Series and whether or not the Pass Through Certificates of such Series are
to be issued as one or more Registered Global Certificates and if the Pass
Through Certificates are to be issued as one or more Registered Global
Certificates, the Depository for the Registered Global Certificates and the
Letter of Representations;
(10) a description of the Equipment Certificates to be acquired by
and held in the related Pass Through Trust and of the related Indenture
Documents;
(11) provisions with respect to the terms for which the definitions
set forth in Article I hereof permit or require further specification in
the related Series Supplement;
(12) whether the Pass Through Certificates are eligible for purchase
by ERISA Plans (as defined in Section 6.06 hereof) and, if applicable, any
restrictions on purchases of Pass Through Certificates by ERISA Plans;
(13) the acceptance of appointment by the institution named to act
as Pass Through Trustee with respect to such Series if different from the
institution executing this Pass Through Agreement or its successor; and
(14) any other terms of the Pass Through Certificates of such Series
(which terms shall not be inconsistent with the provisions of the Trust
Indenture Act or adversely affect the interest of the Certificateholders of
any Series outstanding at the time), including any terms that may be
required or advisable under United States laws or regulations or advisable
in connection with the marketing of the Series.
(c) At any time and from time to time after the execution and
delivery of this Pass Through Agreement, the Company and the Pass Through
Trustee may execute and deliver one or more Series Supplements, each forming a
separate Pass Through Trust and establishing the terms of the Pass Through
Certificates of the related Series, and pursuant to which the Pass Through
Certificates of such Series shall be executed, authenticated and delivered by
the Pass Through Trustee to the Person or Persons specified by the Company
upon request of the Company and upon satisfaction of any conditions precedent
set forth in the related Series Supplement on the Issuance Date for such
Series.
SECTION 2.02. Acquisition of Equipment Certificates. (a) Pass
Through Certificates of a Series executed, authenticated and delivered by the
Pass Through Trustee upon request of the Company in accordance with Section
2.01(c) hereof shall equal in the aggregate the aggregate principal amount of
the Equipment Certificates to be purchased by the Pass Through Trustee
pursuant to the related Participation Agreements, and evidence the entire
ownership of the related Pass Through Trust. The Pass Through Trustee shall
issue and sell such Pass Through Certificates, in authorized denominations and
in such Fractional Undivided Interests, so as to result in the receipt of
consideration in an amount equal to the aggregate principal amount of such
Equipment Certificates and, concurrently therewith, the Pass Through Trustee
shall purchase, pursuant to the terms and conditions of the Participation
Agreements, the Equipment Certificates (except Delayed ECs, if any) at a
purchase price equal to the amount of such consideration so received. Except
as provided in Sections 2.08 and 2.09 hereof, the Pass Through Trustee shall
not execute, authenticate or deliver Pass Through Certificates of such Series
in excess of the aggregate amount determined in accordance with this
subsection (a). The provisions of this subsection (a) are subject to the
provisions of subsection (b) below.
(b) If, on or prior to an Issuance Date, the Company delivers to the
Pass Through Trustee a Delayed Delivery Notice relating to one or more Delayed
ECs, the Pass Through Trustee shall postpone the purchase of the specified
Delayed ECs, the Company, the Pass Through Trustee and the Deposit Trustee
shall form a Deposit Trust, the Pass Through Trustee shall transfer to the
Company the Deposit Trust Funds relating to such Delayed ECs and the Company
shall deposit such Deposit Trust Funds into the Deposit Trust Account for such
Deposit Trust. The Deposit Trust Funds so deposited shall be invested
pursuant to the related Deposit Trust Agreement by the Deposit Trustee at the
direction and risk of, and for the benefit of, the Company in Specified
Investments. The Company agrees that withdrawals shall be made from any
Deposit Trust Account only as provided in the related Deposit Trust Agreement.
Upon notice from the Company on one or more occasions that any Delayed
ECs are available for purchase and upon the satisfaction of the closing
conditions specified in the applicable Participation Agreements and the
related Series Supplement on or prior to the related Cut-off Date for Pass
Through Trust, the Company shall cause the related Deposit Trust Funds to be
withdrawn from the related Deposit Trust Account and paid to the Pass Through
Trustee, free and clear of any Lien under the Deposit Trust Agreement, and the
Pass Through Trustee shall purchase the applicable Delayed ECs with such
Deposit Trust Funds. The purchase price for such Delayed ECs shall equal the
principal amount of such Delayed ECs.
On the Initial Regular Distribution Date for any Pass Through Trust
for which Delayed ECs are purchased pursuant to this subsection, the Company
shall pay, in immediately available funds, to the Pass Through Trustee an
amount equal to the interest that would have accrued on any Delayed ECs
purchased after the related Issuance Date as if such Delayed ECs had been
purchased on such Issuance Date, from such Issuance Date to, but not
including, the date of the purchase of such Delayed ECs for such Pass Through
Trust.
If the Company notifies the Pass Through Trustee prior to any Cut-off
Date for Pass Through Trust that any related Delayed ECs will not be issued on
or prior to such Cut-off Date for Pass Through Trust for any reason, on the
next Special Distribution Date for such Pass Through Trust occurring more than
20 days following the date of such notice (i) the Company shall (A) pay to the
Pass Through Trustee for deposit in the related Special Payments Account, in
immediately available funds, an amount equal to the interest that would have
accrued on the Delayed ECs designated in such notice at a rate equal to the
interest rate applicable to the related Series from the related Issuance Date
to, but not including, such Special Distribution Date and (B) cause an amount
equal to the amount of Deposit Trust Funds that would have been used to
purchase such Delayed ECs to be withdrawn from the related Deposit Trust
Account and paid to the Pass Through Trustee, free and clear of any Lien under
the Deposit Trust Agreement, and (ii) the Pass Through Trustee shall deposit
in the related Special Payments Account, upon receipt from the Deposit Trustee
pursuant to the related Deposit Trust Agreement, the amount received pursuant
to clause (i)(B) above, and the amount paid by the Company pursuant to clause
(i)(A) above, and such amounts shall be distributed as a Special Payment in
accordance with the provisions hereof.
If, on the Cut-off Date for Pass Through Trust for any Pass Through
Trust, an amount equal to less than all of the Deposit Trust Funds (other than
Deposit Trust Funds referred to in the immediately preceding paragraph) has
been used to purchase related Delayed ECs, on the next Special Distribution
Date for such Pass Through Trust occurring more than 20 days following such
Cut-off Date for Pass Through Trust (i) the Company shall (A) pay to the Pass
Through Trustee for deposit in the related Special Payments Account, in
immediately available funds, an amount equal to the interest that would have
accrued on such Delayed ECs contemplated to be purchased with such unused
Deposit Trust Funds (other than any Deposit Trust Funds referred to in the
immediately preceding paragraph) but not so purchased at a rate equal to the
interest rate applicable to the related Series from the related Issuance Date
to, but not including, such Special Distribution Date and (B) cause such
unused Deposit Trust Funds in the amount that would have been used to purchase
such Delayed ECs to be withdrawn from the related Deposit Trust Account and
paid to the Pass Through Trustee, free and clear of any Lien under the Deposit
Trust Agreement, and (ii) the Pass Through Trustee shall deposit in such
Special Payments Account, upon receipt from the Deposit Trustee pursuant to
the related Deposit Trust Agreement, such unused Deposit Trust Funds received
pursuant to clause (i)(B) above, and the amount paid by the Company pursuant
to clause (i)(A) above, and such amounts shall be distributed as a Special
Payment in accordance with the provisions hereof.
SECTION 2.03. Initial Certificateholders as Grantors. By its
acceptance of any Pass Through Certificate of any Series issued to it under
the related Pass Through Trust, each initial Certificateholder of such Series
as grantor of such Pass Through Trust shall join in the creation and
declaration of such Pass Through Trust.
SECTION 2.04. Limitation of Powers. Each Pass Through Trust shall be
constituted solely for the purpose of making the investment in the Equipment
Certificates provided for in the related Series Supplement, and, except as set
forth herein or in such Series Supplement, the Pass Through Trustee shall not
be authorized or empowered to acquire any other investments or engage in any
other activities and, in particular, the Pass Through Trustee shall not be
authorized or empowered to do anything that would cause such Pass Through
Trust to fail to qualify as a "grantor trust" for federal income tax purposes
(including as subject to this restriction, acquiring any Aircraft (as defined
in the respective related Indentures) by bidding such Equipment Certificates
or otherwise, or taking any action with respect to any such Aircraft once
acquired).
SECTION 2.05. Execution of Pass Through Certificates. The Pass
Through Certificates of each Series shall be signed on behalf of the Pass
Through Trustee by an authorized officer of the Pass Through Trustee. Such
signatures may be the manual or facsimile signatures of such officer and minor
errors or defects in any reproduction of any such signature shall not affect
the validity or enforceability of any Pass Through Certificate which has been
duly authenticated and delivered by the Pass Through Trustee.
If any officer of the Pass Through Trustee who signs any of the Pass
Through Certificates subsequently ceases to be such officer before the Pass
Through Certificate so signed is authenticated and delivered or disposed of by
the Pass Through Trustee, such Pass Through Certificate nevertheless may be
authenticated and delivered or disposed of as though the person who signed
such Pass Through Certificate had not ceased to be such officer of the Pass
Through Trustee; and any Pass Through Certificate may be signed on behalf of
the Pass Through Trustee by such person or persons as, at the actual date of
the execution of such Pass Through Certificate, are the proper officers of the
Pass Through Trustee, although at the date of the execution and delivery of
the related Series Supplement any such person was not such officer.
SECTION 2.06. Certificate of Authentication. The Pass Through
Trustee shall duly authenticate and deliver Pass Through Certificates for each
Series in authorized denominations equalling in the aggregate, the aggregate
principal amount of the Equipment Certificates to be purchased for the related
Pass Through Trust by the Pass Through Trustee pursuant to the related
Participation Agreements, and evidencing the entire ownership of the related
Pass Through Trust. Only such Pass Through Certificates of such Series as
shall bear thereon a certificate of authentication substantially in the form
set forth in Exhibit A, executed by the Pass Through Trustee by manual or
facsimile signature of one of its authorized officers, shall be entitled to
the benefits of the related Pass Through Trust or be valid or obligatory for
any purpose. Such certificate by the Pass Through Trustee upon any Pass
Through Certificate for such Series executed by the Pass Through Trustee shall
be conclusive evidence that the Pass Through Certificate so authenticated has
been duly authenticated and delivered hereunder and that the
Certificateholder, as evidenced on the Register for such Series, is entitled
to the benefits of the related Pass Through Trust.
SECTION 2.07. Form and Denomination of Pass Through Certificates.
The Pass Through Certificates of each Series shall be substantially in the
form set forth in Exhibit A hereto. The Pass Through Certificates shall be
issuable as registered securities without coupons and shall be numbered,
lettered, or otherwise distinguished in such manner or in accordance with such
plans as set forth in the related Series Supplement. The Pass Through
Certificates of each Series shall be issued in minimum denominations of $1,000
and integral multiples thereof and shall be dated the date of their
authentication.
The Pass Through Certificates of any Series may be issued with
appropriate insertions, omissions, substitutions and variations, and may have
imprinted or otherwise reproduced thereon such legend or legends, not
inconsistent with the provisions of this Pass Through Agreement or the related
Series Supplement, as may be required to comply with any law or with any rules
or regulations pursuant thereto, or with the rules of the Depository or any
securities market in which such Pass Through Certificates are admitted to
trading, or to conform to general usage.
SECTION 2.08. Registration, Transfer and Exchange. The Pass Through
Trustee will keep at each office or agency to be maintained for any Series for
the purpose as provided in Section 3.02 hereof a Register or Registers in
which, subject to such reasonable regulations as it may prescribe, it will
register, and will register the transfer of, Pass Through Certificates of the
related Series as provided in this Article II. Such Register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time.
Upon due presentation for registration of transfer of any Pass Through
Certificate of the related Series at any such office or agency, the Pass
Through Trustee shall execute, authenticate and deliver in the name of the
transferee or transferees a new Pass Through Certificate or Pass Through
Certificates of such Series in authorized denominations and for a like
aggregate Fractional Undivided Interest.
Subject to the provisions of Section 2.12 hereof, any Pass Through
Certificate or Pass Through Certificates may be exchanged for a Pass Through
Certificate or Pass Through Certificates of the same Series in other authorized
denominations and for a like aggregate Fractional Undivided Interest. Pass
Through Certificates to be exchanged shall be surrendered at any office or
agency to be maintained by the Pass Through Trustee for the related Series for
the purpose as provided in Section 3.02 hereof, and the Pass Through Trustee
shall execute, authenticate and deliver in exchange therefor the Pass Through
Certificate or Pass Through Certificates which the Certificateholder making
the exchange shall be entitled to receive, bearing numbers not
contemporaneously or previously outstanding.
All Pass Through Certificates presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Pass Through
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Pass Through Trustee duly
executed by, the Certificateholder or his attorney duly authorized in writing.
The Pass Through Trustee may require payment from the
Certificateholder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any exchange or registration of
transfer of Pass Through Certificates. No service charge to the
Certificateholder shall be made for any such transaction.
All Pass Through Certificates issued upon any transfer or exchange of
Pass Through Certificates shall evidence ownership in the same Pass Through
Trust and be entitled to the same benefits under this Pass Through Agreement
and the applicable Series Supplement, as the Pass Through Certificates
surrendered upon such transfer or exchange.
Resales or other transfers of Pass Through Certificates represented
by a Registered Global Certificate will be conducted in accordance with the
provisions of this Pass Through Agreement, including without limitation
Section 6.06 hereof, and the rules and procedures of the Depository applicable
to U.S. corporate pass through certificates and without notice to, or action
by the Pass Through Trustee.
Neither the Company nor the Pass Through Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Registered
Global Certificate or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Pass
Through Certificates. If any temporary or definitive Pass Through Certificate
becomes mutilated, defaced or is apparently destroyed, lost or stolen, the
Pass Through Trustee in its discretion may execute, authenticate and deliver,
a new Pass Through Certificate of like Fractional Undivided Interest in the
related Pass Through Trust, bearing a number not contemporaneously or
previously outstanding, in exchange and substitution for the mutilated or
defaced Pass Through Certificate, or in lieu of and in substitution for the
Pass Through Certificate so apparently destroyed, lost or stolen. In every
case the applicant for a substitute Pass Through Certificate shall furnish to
the Pass Through Trustee and any agent of the Pass Through Trustee such
security or indemnity as may be required by them to indemnify and defend and
to save each of them harmless from any such substitution and, in every case of
destruction, loss or theft, evidence to their satisfaction of the apparent
destruction, loss or theft of such Pass Through Certificate and of the
ownership thereof.
Upon the issuance of any substitute Pass Through Certificate, the Pass
Through Trustee may require payment from the Certificateholder of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including the
reasonable fees and expenses of the Pass Through Trustee) connected therewith.
If any Pass Through Certificate of a Pass Through Trust for which a notice of
termination has been or is about to be given pursuant to Section 12.01 hereof
becomes mutilated or defaced or is apparently destroyed, lost or stolen, the
Pass Through Trustee may, instead of issuing a substitute Pass Through
Certificate, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated or defaced Pass Through
Certificate), if the applicant for such payment furnishes to the Pass Through
Trustee and any agent of the Pass Through Trustee such security or indemnity
as any of them may require to save each of them harmless from all risks,
however remote, resulting from such payment and, in every case of apparent
destruction, loss or theft, the applicant shall also furnish to the Pass
Through Trustee and any agent of the Pass Through Trustee evidence to their
satisfaction of the apparent destruction, loss or theft of such Pass Through
Certificate and of the ownership thereof.
Every substitute Pass Through Certificate issued pursuant to the
provisions of this Section 2.09 by virtue of the fact that any Pass Through
Certificate is apparently destroyed, lost or stolen will constitute conclusive
evidence of the Fractional Undivided Interest in the applicable Pass Through
Trust evidenced by the Pass Through Certificate that it replaces, whether or
not the apparently destroyed, lost or stolen Pass Through Certificate may be
enforceable at any time by anyone and will be entitled to all the benefits of
(but will be subject to all the limitations of rights set forth in) the
applicable Pass Through Trust equally and proportionately with any and all
other Pass Through Certificates duly authenticated and delivered therefor.
All Pass Through Certificates will be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced, or
apparently destroyed, lost or stolen Pass Through Certificates and will
preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10. Cancellation of Pass Through Certificates; Destruction
Thereof. All Pass Through Certificates surrendered for payment, redemption,
registration of transfer or exchange, if surrendered to any agent of the Pass
Through Trustee, shall be delivered to the Pass Through Trustee for
cancellation or, if surrendered to the Pass Through Trustee, shall be
cancelled by it; and no Pass Through Certificates shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this Pass
Through Agreement or the applicable Series Supplement. The Pass Through
Trustee shall destroy cancelled Pass Through Certificates held by it.
SECTION 2.11. Temporary Pass Through Certificates. Pending the
preparation of definitive Pass Through Certificates of any Series, the Pass
Through Trustee may execute, authenticate and deliver temporary Pass Through
Certificates for such Series (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the executing officer of the
Pass Through Trustee, as evidenced by such officer's execution thereof). Such
temporary Pass Through Certificates shall be issuable as registered Pass
Through Certificates without coupons, of any authorized denomination, and
substantially in the form of the definitive Pass Through Certificates of such
Series but with such omissions, insertions and variations as may be
appropriate for temporary Pass Through Certificates, all as may be determined
by the executing officer of the Pass Through Trustee, as evidenced by such
officer's execution thereof. Temporary Pass Through Certificates may contain
such reference to any provisions of this Pass Through Agreement or the
applicable Series Supplement as may be appropriate. Every such temporary Pass
Through Certificate shall be executed and authenticated by the Pass Through
Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Pass Through Certificates of such Series.
Without unreasonable delay the Company shall furnish definitive Pass Through
Certificates for such Series and thereupon temporary Pass Through Certificates
shall be surrendered in exchange therefor without charge at any office or
agency to be maintained by the Pass Through Trustee for the purpose pursuant
to Section 3.02 hereof, and the Pass Through Trustee shall execute,
authenticate and deliver in exchange for such temporary Pass Through
Certificates such definitive Pass Through Certificates evidencing a like
aggregate Fractional Undivided Interest in the applicable Pass Through Trust
in authorized denominations. Until so exchanged, temporary Pass Through
Certificates shall be entitled to the same benefits under the applicable Pass
Through Trust and this Pass Through Agreement as definitive Pass Through
Certificates of the applicable Series.
SECTION 2.12. Pass Through Certificates Issuable in the Form of a
Registered Global Certificate. For any Series, at the sole option of the
Company as set forth in the related Series Supplement, this Section 2.12 shall
apply to such Series or may be amended with respect to any Series, and to the
extent that the provisions of this Section 2.12 conflict with any other
provisions of this Pass Through Agreement, the provisions of this Section 2.12
shall control.
(a) If the Company shall establish pursuant to Section 2.01 hereof
that the Pass Through Certificates of a particular Series are to be issued in
whole in the form of a Registered Global Certificate, then the Pass Through
Trustee shall, in accordance with this Article II, execute, authenticate and
deliver, one Registered Global Certificate which (i) shall represent, and
shall be denominated in an amount equal to, the aggregate Fractional Undivided
Interests of all of the Pass Through Certificates in the related Pass Through
Trust, (ii) shall be registered in the name of the Depository or its nominee,
(iii) shall be delivered by the Pass Through Trustee to the Depository or
pursuant to the Depository's instruction, and (iv) shall bear a legend
substantially to the following effect: "Unless this Registered Global
Certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Pass Through Trustee or
its agent for registration of transfer, exchange or payment, and any
Registered Global Certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein." No Person
acquiring a beneficial interest in a Pass Through Certificate will be entitled
to receive a definitive Pass Through Certificate representing such Person's
interest in the Pass Through Trust, except as provided in subsection (d) below.
(b) Notwithstanding any other provision of this Section 2.12 or of
Section 2.08 hereof, the Registered Global Certificate for any Series may be
transferred, in whole but not in part and in the manner provided in Section
2.08 hereof, by the Depository to a nominee of such Depository or by a nominee
of such Depository to such Depository or another nominee of such Depository or
by such Depository or any such nominee to a successor Depository selected or
approved by the Company upon notice to the Pass Through Trustee or to a
nominee of such successor Depository.
(c) The Depository shall be an organization registered as a clearing
agency under the Exchange Act and any other applicable statute or regulation.
(d) If at any time the Depository notifies the Company that it is
unwilling or unable to continue as Depository for such Series or if at any
time the Depository for such Series shall no longer be eligible under
subsection (c) above, and a successor Depository is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, as the case may be, this Section 2.12 shall no longer be
applicable to the Pass Through Certificates of such Series and the Pass
Through Trustee will execute, authenticate and deliver Pass Through
Certificates of such Series in definitive registered form without coupons, in
authorized denominations, and in an aggregate Fractional Undivided Interest in
the related Pass Through Trust equal to the Fractional Undivided Interest in
the related Pass Through Trust of the Registered Global Certificate then
outstanding in exchange for such Registered Global Certificate. In addition,
the Company may at any time and in its sole discretion determine that the Pass
Through Certificates of any Series shall no longer be represented by a
Registered Global Certificate and that the provisions of this Section 2.12
shall no longer apply to such Pass Through Certificates. In such event the
Pass Through Trustee, upon receipt of an Officer's Certificate evidencing such
determination by the Company, will notify the Depository of the availability
of such Pass Through Certificates in definitive form and will execute,
authenticate and deliver, Pass Through Certificates of such Series in
definitive registered form without coupons, in authorized denominations and in
an aggregate Fractional Undivided Interest in the related Pass Through Trust
equal to the Fractional Undivided Interest in the related Pass Through Trust
of the Registered Global Certificate then outstanding in exchange for such
Registered Global Certificate. Upon the exchange of the Registered Global
Certificate for such Pass Through Certificates in definitive registered form
without coupons, in authorized denominations, such Registered Global
Certificate shall be cancelled by the Pass Through Trustee. Such Pass Through
Certificates in definitive registered form issued in exchange for the
Registered Global Certificate pursuant to this subsection (d) shall be
registered in such names and in such authorized denominations as the
Depository shall instruct the Pass Through Trustee. The Pass Through Trustee
shall deliver such Pass Through Certificates to the Persons in whose names
such Pass Through Certificates are so registered. Upon the issuance of Pass
Through Certificates in definitive registered form without coupons, the Pass
Through Trustee shall recognize the Person in whose name such definitive Pass
Through Certificates are registered in the Register from time to time as
Certificateholders hereunder.
(e) As long as the Pass Through Certificates of a Series are
represented by a Registered Global Certificate, all distributions for such
Series shall be made to the holder of such Registered Global Certificate as
the Certificateholder of such Series, or to such Persons as such holder may
designate, by wire transfer of immediately available funds on the date such
distributions are due, and the Company shall or shall cause the Pass Through
Trustee to provide to the Depository any notices referred to in the related
Letter of Representations in accordance with such Letter of Representations.
ARTICLE III
CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 3.01. Covenants of the Company. (a) The Company will
preserve and maintain its corporate existence, except as permitted by
subsection (b) below. The Company will preserve and maintain all of its
rights, privileges and franchises necessary in the normal conduct of its
business; provided that the Company shall not be required to preserve any
right, privilege or franchise if the Company shall reasonably determine that
the loss thereof will not materially adversely affect the Company's ability to
perform its obligations hereunder or under any Series Supplement.
(b) The Company shall not (i) consolidate with or merge into any
other corporation under circumstances in which the Company is not the surviving
corporation or (ii) convey, transfer or lease all or substantially all of its
assets as an entirety to any Person, unless the corporation formed by such
consolidation or into which the Company is merged or the Person which acquired
by conveyance, transfer or lease substantially all of the assets of the
Company as an entirety shall be a corporation organized and existing under the
laws of the United States of America or any State or the District of Columbia,
and shall execute and deliver to the Pass Through Trustee an agreement
reasonably satisfactory in form and substance to the Pass Through Trustee
containing an effective assumption by such successor corporation of the due
and punctual performance and observance of each covenant and condition to be
performed or observed by the Company hereunder and under each Series
Supplement.
(c) Upon any consolidation or merger, or any conveyance, transfer or
lease of substantially all the assets of the Company as an entirety in
accordance with this Section 3.01, the successor corporation formed by such
consolidation or the Person into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company hereunder and
under each Series Supplement with the same effect as if such successor
corporation or such Person, as the case may be, had been named as the Company
herein and therein. No such conveyance, transfer or lease of substantially
all of the assets of the Company as an entirety shall have the effect of
releasing the Company or any successor corporation which shall theretofore have
become such in the manner prescribed in this Section 3.01 from its liability
hereunder or under any Series Supplement.
(d) The Pass Through Trustee shall receive an Officer's Certificate
and an Opinion of Counsel of the Company as conclusive evidence that any
consolidation, merger, sale, lease or conveyance, and any assumption complies
with the provisions of this Section 3.01 and the Pass Through Trustee shall be
entitled to rely upon the same for all purposes hereof.
SECTION 3.02. Offices for Payments; Registrar. So long as any Pass
Through Certificates of a Series remain outstanding, the Pass Through Trustee
will maintain the following for such Series: (a) an office or agency where
such Pass Through Certificates may be presented for payment and (b) a facility
or agency in New York, New York where such Pass Through Certificates may be
presented or surrendered for registration of transfer and for exchange and for
redemption as provided in this Pass Through Agreement (the "Registrar").
Written notice of the location of each such other office or agency and of any
change of location thereof shall be given by the Pass Through Trustee to the
Company, any Owner Trustees, the Indenture Trustees and the Certificateholders
of such Series. In the event that no such office or agency shall be
maintained or no such notice of location or of change of location shall be
given, presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Pass Through Trustee. The Registrar shall keep
a Register with respect to the Pass Through Certificates of each Series and
their transfer and exchange. The Pass Through Trustee may appoint one or more
co-registrars ("Co-Registrars") for any Series and may terminate any such
appointment at any time upon written notice. The term "Registrar" includes
any Co-Registrar.
Any Registrar shall be a bank or trust company organized and doing
business under the laws of the United States or any state, with a combined
capital and surplus of at least $100,000,000, or a direct or indirect
subsidiary of such an entity, or a member of a bank holding company group,
having a combined capital and surplus of at least $100,000,000 and such
subsidiary or member itself having a capital and surplus of at least
$10,000,000.
The Pass Through Trustee shall initially act as Registrar and shall
initially serve at an office where Pass Through Certificates can be presented
for payment.
SECTION 3.03. Representations and Warranties of the Pass Through
Trustee. (a) The Pass Through Trustee, in its individual capacity (except
with respect to clause (iv) below), represents, warrants and agrees that:
(i) it is a validly existing national banking association or a bank
or trust company organized or chartered under the law of a State of the
United States of America and duly organized under the laws of the United
States of America or such State, as the case may be, holding a valid
certificate to do business as a national banking association or a bank or
trust company under the State of the United States of America where it is
organized or chartered, as the case may be, with banking and trust powers
and has the corporate power and authority to enter into and perform its
obligations under this Pass Through Agreement;
(ii) this Pass Through Agreement has been duly authorized by all
necessary corporate action on its part, and neither the execution and
delivery hereof nor its performance of any of the terms and provisions
hereof will violate any Federal law or the law of the State of the United
States of America where it is located or regulation relating to its banking
or trust powers or any judgment or order applicable to or binding on the
Pass Through Trustee and will not contravene or result in any breach of, or
constitute any default under its charter or by-laws or the provisions of
any indenture, mortgage, contract or other agreement to which it is a party
or by which it or its properties may be bound or affected;
(iii) the execution, delivery and performance by the Pass Through
Trustee of this Pass Through Agreement will not require the authorization,
consent, or approval of, the giving of notice to, the filing or
registration with, or the taking of any other action in respect of, any
governmental authority or agency of the United States of America or the
State of the United States of America where it is located regulating the
banking and corporate trust activities of the Pass Through Trustee other
than (i) the registration of the Pass Through Certificates under the
Securities Act and under the securities laws of any state in which the Pass
Through Certificates may be offered for sale if the laws of such state
require such action and (ii) the qualification of the Pass Through
Agreement under the Trust Indenture Act pursuant to an order of the
Securities and Exchange Commission;
(iv) this Pass Through Agreement has been duly executed and delivered
by it and, assuming that this Pass Through Agreement is the legal, valid and
binding obligation of the Company, is the legal, valid and binding
obligation of the Pass Through Trustee, enforceable against the Pass
Through Trustee in accordance with its terms except as may be limited by
bankruptcy, insolvency, moratorium, reorganization, receivership,
fraudulent conveyance or similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights and
remedies generally from time to time in effect, regardless of whether such
enforceability is considered in a proceeding in equity or at law; and
(v) each Series Supplement executed by such Pass Through Trustee
will be, upon the date of execution and delivery of such Series Supplement,
executed and delivered by one of its officers duly authorized to execute
and deliver such Series Supplement on its behalf.
(b) The representations and warranties set forth in subsection (a)
above shall be deemed to be made by the applicable Pass Through Trustee on
each Issuance Date, except as otherwise provided in the applicable Series
Supplement.
SECTION 3.04. Paying Agents. Whenever the Pass Through Trustee in
its sole discretion shall appoint a paying agent (the "Paying Agent") for any
Pass Through Trust, it will cause the Paying Agent to execute and deliver an
instrument in which the Paying Agent shall agree with the Pass Through
Trustee, subject to the provisions of this Section 3.04,
(a) that it will hold all sums received by it as such agent for
distribution to the Certificateholders of the related Series (whether such
sums have been paid to it by the Pass Through Trustee or the Related Owner
Trustee or Indenture Trustee) in trust for the benefit of the
Certificateholders of the related Series or of the Pass Through Trustee, and
(b) that it will notify the Pass Through Trustee if the principal of
or interest or premium on the Equipment Certificates that constitute Trust
Property of such Pass Through Trust is not paid when the same is due and
payable.
Anything in this Section 3.04 to the contrary notwithstanding, the
agreements to hold sums in trust as provided in this Section 3.04 are subject
to the provisions of Sections 12.03 and 12.04 hereof.
SECTION 3.05. No Representations or Warranties as to Documents. The
Pass Through Trustee neither makes nor shall be deemed to have made any
representation or warranty as to the validity, legality or enforceability of
this Pass Through Agreement, any Series Supplement, any related Pass Through
Certificates or any related Indenture Documents or as to the correctness of
any statement contained in any thereof, except for the representations and
warranties of the Pass Through Trustee made in its individual capacity under
this Pass Through Agreement, in any Series Supplement or in any related
Participation Agreement.
SECTION 3.06. Payments from Trust Property Only. For any Pass
Through Trust, all payments or distributions to be made to Certificateholders
of any Series under the related Series Supplement by the Pass Through Trustee
under such Pass Through Trust shall be made only from the income and the
proceeds from the related Trust Property and only to the extent that the Pass
Through Trustee shall have sufficient income or proceeds from such Trust
Property to enable the Pass Through Trustee to make distributions of the
amounts due in respect of the Pass Through Certificates thereunder. Each
Certificateholder of such Series by its acceptance of a related Pass Through
Certificate agrees that it will look solely to the income and proceeds from
the related Trust Property to the extent available for distribution to it as
provided herein and in the related Series Supplement and that the Pass Through
Trustee is not personally liable to such Certificateholder for any amounts
payable under such Pass Through Trust except as expressly provided herein.
SECTION 3.07. Limitation of the Company's Liability. The Company is
a party to this Pass Through Agreement solely for purposes of meeting the
requirements of the Trust Indenture Act, and therefore shall not be liable
hereunder, except as otherwise expressly provided herein, or under the terms
of any Series Supplement or any Pass Through Certificates, except as otherwise
expressly provided therein.
ARTICLE IV
CERTIFICATEHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE PASS THROUGH TRUSTEE
SECTION 4.01. Certificateholder Lists; Ownership of Pass Through
Certificates. (a) For each Series, the Pass Through Trustee shall preserve in
as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of the Certificateholders of such Series. If
the Pass Through Trustee is not the Registrar for such Series, the Company
shall cause the Registrar to furnish to the Pass Through Trustee semi-annually
not more than 15 days after each Record Date, as of such Record Date, or at
such other times as the Pass Through Trustee may request in writing, a list,
in such form and as of such date as the Pass Through Trustee may reasonably
require, containing all the information in the possession or control of the
Registrar as to the names and addresses of the Certificateholders of such
Series and the amounts of the Pass Through Certificates held by such
Certificateholders.
(b) For each Series, ownership of the Pass Through Certificates
shall be proved by the Register for such Series kept by the Registrar.
SECTION 4.02. Disclosure of Certificateholder Lists. Each and every
Certificateholder, by receiving and holding such Pass Through Certificate,
agrees with the Company and the Pass Through Trustee that neither the Company,
the Pass Through Trustee, the Pass Through Trustee in its individual capacity
nor any agent of any of the foregoing shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of any
Certificateholders in accordance with the provisions of Section 312 of the
Trust Indenture Act, regardless of the source from which such information was
derived, and that the Pass Through Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 312(b)
of the Trust Indenture Act.
SECTION 4.03. Reports by the Company. The Company covenants:
(a) to file with the Pass Through Trustee, within 30 days after the
Company is required to file the same with the Commission, copies of the
annual reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act or, if the Company is not required to file information,
documents, or reports pursuant to either of such Sections of the Exchange
Act, then to file with the Pass Through Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents,
and reports that would be required pursuant to Section 13 of the Exchange
Act, or, in respect of a security listed and registered on a national
securities exchange, as may be prescribed from time to time in such rules
and regulations;
(b) to file with the Pass Through Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents, and reports with
respect to compliance by the Company with the conditions and covenants
provided for in this Pass Through Agreement as may be required from time to
time by such rules and regulations;
(c) to transmit to the Certificateholders of each Series in the
manner and to the extent required by Section 313(c) of the Trust Indenture
Act, within 30 days after the filing thereof with the Pass Through Trustee,
such summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this Section
4.03 as may be required by rules and regulations prescribed from time to
time by the Commission; and
(d) furnish to the Pass Through Trustee, on or before each March 15,
a brief certificate from the principal executive officer, principal
financial officer or principal accounting officer of the Company as to his
or her knowledge of such Company's compliance with all conditions and
covenants under this Pass Through Agreement and each Series Supplement.
For purposes of this subsection (d), such compliance shall be determined
without regard to any period of grace or requirement of notice provided
under this Pass Through Agreement or any Series Supplement.
SECTION 4.04. Reports by the Pass Through Trustee. For each Series,
on or before each May 15, the Pass Through Trustee in respect of such Series
shall transmit, in the manner and to the extent required by Section 313(c) of
the Trust Indenture Act, any report required by Section 313(a) of the Trust
Indenture Act to be transmitted by the Pass Through Trustee to the related
Certificateholders.
ARTICLE V
RECEIPT AND DISTRIBUTION OF INCOME
AND PROCEEDS FROM THE TRUST PROPERTY
SECTION 5.01. Certificate Account and Special Payments Account. (a)
The Pass Through Trustee shall establish and maintain for each Pass Through
Trust, on behalf of the related Certificateholders of each Series, a
Certificate Account as one or more non-interest bearing accounts. In each
case, the Pass Through Trustee shall hold such Certificate Account in trust
for the benefit of such Certificateholders, respectively, and shall make or
permit withdrawals therefrom only as provided in this Pass Through Agreement
or the related Series Supplement. Upon receipt of any Scheduled Payment, the
Pass Through Trustee shall immediately deposit such Scheduled Payment in the
applicable Certificate Account.
(b) The Pass Through Trustee shall establish and maintain, as and
when required, for each Pass Through Trust, on behalf of the related
Certificateholders of each Series, a Special Payments Account as one or more
accounts, which shall be non-interest bearing except as provided in Section
5.04 hereof. In each case, the Pass Through Trustee shall hold such Special
Payments Account in trust for the benefit of such Certificateholders,
respectively, and shall make or permit withdrawals therefrom only as provided
in this Pass Through Agreement or the related Series Supplement. Upon receipt
of any Special Payment, the Pass Through Trustee shall immediately deposit
such Special Payment in the applicable Special Payments Account.
(c) The Pass Through Trustee shall present any Equipment Certificate
to the applicable Related Indenture Trustee on the date of its stated final
maturity, or on such earlier date as such Equipment Certificate is to be
redeemed or purchased in whole pursuant to the relevant Indenture.
SECTION 5.02. Distributions from Certificate Account and Special
Payments Account. (a) For each Pass Through Trust, on each related Regular
Distribution Date, or as soon thereafter as the Pass Through Trustee has
confirmed receipt of any Scheduled Payment due on the related Equipment
Certificates on such Regular Distribution Date, the Pass Through Trustee shall
distribute out of the applicable Certificate Account the entire amount
deposited therein pursuant to Section 5.01(a) hereof by paying to each
Certificateholder of the related Series of record at the close of business on
the Record Date for such Regular Distribution Date (except as provided in
Section 12.01 hereof concerning the final distribution), at the address for
such Certificateholder appearing in the related Register, such
Certificateholder's pro rata share (based on the aggregate Fractional
Undivided Interest in the related Pass Through Trust held by such
Certificateholder) of the aggregate amount in the applicable Certificate
Account.
(b) For each Pass Through Trust, on each related Special
Distribution Date, or as soon thereafter as the Pass Through Trustee has
confirmed receipt of any Special Payment due on the related Equipment
Certificates or realized upon the sale of any such Equipment Certificates, the
Pass Through Trustee shall distribute out of the applicable Special Payments
Account the entire amount of such Special Payment deposited therein pursuant
to Section 5.01(b) hereof by paying to each Certificateholder of the related
Series of record at the close of business on the Record Date for such Special
Distribution Date (except as provided in Section 12.01 hereof concerning the
final distribution), at the address for such Certificateholder appearing in
the related Register, such Certificateholder's pro rata share (based on the
aggregate Fractional Undivided Interest in the related Pass Through Trust held
by such Certificateholder) of the aggregate amount in the applicable Special
Payments Account on account of such Special Payment.
(c) For each Pass Through Trust, the Pass Through Trustee shall at
the expense of the Company notify each Certificateholder of the related Series
by mail at its address as it appears in the related Register of each related
Special Payment for such Series. If the related Equipment Certificates are to
be redeemed or purchased in whole prior to their respective maturities, or if
a Special Payment is to be made pursuant to either of the last two paragraphs
of Section 2.02(b) hereof, such notice shall be mailed not less than 20 days
prior to the date any such Special Payment is scheduled to be distributed.
For any other Special Payment, such notice shall be mailed as soon as
practicable after the Pass Through Trustee has received funds for such Special
Payment. Such notices of Special Payments shall set forth:
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 12.01 hereof);
(ii) the amount of the Special Payment for each $1,000 face amount
Pass Through Certificate and the amount thereof constituting principal,
premium, if any, and interest on the related Equipment Certificates;
(iii) the reason for the Special Payment; and
(iv) if the Special Distribution Date is the same date as a Regular
Distribution Date for such Series, the total amount to be received on such
date for each $1,000 face amount Pass Through Certificate.
If the amount of premium, if any, payable upon the redemption or purchase in
whole of an Equipment Certificate has not been calculated at the time that the
Pass Through Trustee mails the notice of the related Special Payment, it shall
be sufficient if the notice sets forth the other amounts to be distributed and
states that any premium received will also be distributed.
If, for any Pass Through Trust, any cancellable redemption of the
related Equipment Certificates is cancelled, the Pass Through Trustee, as soon
as possible after learning thereof, shall notify by mail each
Certificateholder of the related Series at its address as it appears on the
related Register.
(d) For each Pass Through Trust, any Scheduled Payment or Special
Payment to be distributed pursuant to this Article V shall be payable at the
Corporate Trust Office of the Pass Through Trustee or at any office or agency
maintained for such purpose for the related Series pursuant to Section 3.02
hereof, provided that any Scheduled Payment or Special Payment may be payable
at the option of the Pass Through Trustee or its Paying Agent for the related
Series by mailing checks for such Scheduled Payment or Special Payment payable
to or upon the written order of the related Certificateholders entitled
thereto as they appear on the related Register.
SECTION 5.03. Statements to Certificateholders. (a) On each Regular
Distribution Date and Special Distribution Date, the Pass Through Trustee
shall mail to Certificateholders of the related Series a statement, giving
effect to such distribution to be made on such Regular Distribution Date or
Special Distribution Date, as the case may be, setting forth the following
information (as to (i) and (ii) below, for each $1,000 face amount Pass
Through Certificate):
(i) the amount of such distribution allocable to principal and the
amount allocable to premium, if any, on the related Equipment Certificates;
(ii) the amount of such distribution allocable to interest on the
related Equipment Certificates; and
(iii) the Pool Balance and the Pool Factor of the related Pass Through
Trust.
(b) For each Series, within a reasonable period of time after the
end of each calendar year but not later than the latest date permitted by law,
the Pass Through Trustee shall furnish to each Person who at any time during
such calendar year was a Certificateholder of such Series a statement
containing the sum of the amounts determined pursuant to clauses (a)(i) and
(a)(ii) of this Section 5.03 for the related Pass Through Trust for such
calendar year or, in the event such Person was a Certificateholder of such
Series during a portion of such calendar year, for the applicable portion of
such year.
SECTION 5.04. Investment of Special Payment Moneys. Any money
received by the Pass Through Trustee pursuant to Section 5.01(b) hereof
representing a Special Payment that is not to be promptly distributed shall,
to the extent practicable, be invested by the Pass Through Trustee in
Permitted Investments selected by the Company pending distribution of such
Special Payment pursuant to Section 5.02 hereof. Any investment made pursuant
to this Section 5.04 shall be in such Permitted Investments having maturities
not later than the date that such moneys are required to be used to make the
payment required under Section 5.02 hereof on the applicable Special
Distribution Date and the Pass Through Trustee shall hold any such Permitted
Investments until maturity. The proceeds upon maturity of any Permitted
Investment shall not be reinvested pending distribution. The Pass Through
Trustee shall have no liability with respect to any investment made pursuant
to this Section 5.04, other than by reason of the willful misconduct or gross
negligence of the Pass Through Trustee. All income and earnings from such
investments shall be distributed on such Special Distribution Date as part of
such Special Payment.
SECTION 5.05. Withholding Taxes. The Pass Through Trustee shall
withhold any taxes required to be withheld on payments to any
Certificateholder of any Series, except to the extent that such
Certificateholder has furnished evidence reasonably satisfactory to the Pass
Through Trustee of any exemption from withholding claimed by such
Certificateholder, and under no circumstances shall the failure of any such
Certificateholder to receive any amounts so withheld constitute an Event of
Default. The Pass Through Trustee agrees to act as such withholding agent
and, in connection therewith, whenever any taxes or similar charges are
required to be withheld with respect to any amounts payable in respect of the
Pass Through Certificates of such Series, to withhold such amounts and timely
pay the same to the appropriate authority in the name of and on behalf of the
Certificateholders of such Series, that it will file any necessary withholding
tax returns or statements when due, and that, as promptly as possible after
the payment thereof, it will deliver to each such Certificateholder
appropriate documentation showing the payment thereof, together with such
additional documentary evidence as any such Certificateholder of such Series
may reasonably request from time to time. The Pass Through Trustee agrees to
file any other information reports as it may be required to file under law.
Notwithstanding any provision to the contrary herein, if the Company is
required to pay any withholding tax or any interest or penalty thereon, or to
indemnify an Owner Participant or Owner Trustee pursuant to Section 8.01(c) of
any related Participation Agreement with respect to the Pass Through Trustee's
failure to withhold with respect to any Certificateholder, the Pass Through
Trustee shall be entitled to retain any payments otherwise distributable to
such Certificateholder that was subject to such withholding until such amounts
shall have been recovered in full by the Pass Through Trustee.
ARTICLE VI
CONCERNING THE CERTIFICATEHOLDERS
SECTION 6.01. Evidence of Action Taken by Certificateholders. (a)
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Pass Through Agreement to be given or taken by
Certificateholders of any Series may be embodied in and evidenced by one or
more substantially similar instruments signed by such Certificateholders in
person or by an agent duly appointed in writing, and, except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to the Pass Through Trustee. Proof of
execution of any instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Pass Through Agreement and (subject to
Sections 8.02 and 8.03 hereof) conclusive in favor of the Pass Through
Trustee, if made in the manner provided in this Article VI.
(b) For the purpose of determining the Certificateholders of any
Series entitled to vote or consent to any direction, waiver or other action of
such Certificateholders under Section 7.10 or 7.11 hereof, the Company may set
a record date for such vote or consent by specifying such record date in an
Officer's Certificate delivered to the Pass Through Trustee. Notwithstanding
Section 316(c) of the Trust Indenture Act, such record date shall be a date
not more than 15 days prior to the first solicitation of such vote or consent.
SECTION 6.02. Proof of Execution of Instruments and of Holding of
Certificates. Subject to Sections 8.02 and 8.03 hereof, the execution of any
instrument by a Certificateholder or his agent or proxy may be proved in
accordance with such reasonable rules and regulations as may be prescribed by
the Pass Through Trustee. The holding of Pass Through Certificates shall be
proved by the Register or by a certificate of the Registrar.
SECTION 6.03. Certificateholders to Be Treated as Owners. Prior to
due presentment for registration of transfer of any Pass Through Certificate,
each related Indenture Trustee, the Pass Through Trustee, any agent of any
such related Indenture Trustee or the Pass Through Trustee, the Paying Agent,
if any, the Registrar and the Company may deem and treat the Person in whose
name such Pass Through Certificate shall be registered upon the Register as
the absolute owner of such Pass Through Certificate (whether or not such Pass
Through Certificate shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment on
account of the principal payable with respect to and, subject to the
provisions of this Pass Through Agreement, interest payable with respect to
such Pass Through Certificate and for all other purposes; and neither any such
related Indenture Trustee nor the Pass Through Trustee (nor any agent of any
such related Indenture Trustee or the Pass Through Trustee) nor the Paying
Agent, if any, nor the Registrar nor the Company shall be affected by any
notice to the contrary. All such payments so made to any such person, or upon
his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Pass Through Certificate.
SECTION 6.04. Pass Through Certificates Owned by the Company and
Related Owner Trustees Deemed Not Outstanding. In determining whether the
Certificateholders of the requisite aggregate Fractional Undivided Interest of
Pass Through Certificates of any Series have concurred in any direction,
consent or waiver under this Pass Through Agreement, Pass Through Certificates
of such Series that are owned by the Company, any Related Owner Trustee or
Related Owner Participant or any obligor on such Pass Through Certificates or
by any Affiliate of the Company, any such Related Owner Trustee or Related
Owner Participant or any obligor on such Pass Through Certificates shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination; provided that for the purpose of determining whether the Pass
Through Trustee shall be protected in relying on any such direction, consent
or waiver, only if a Responsible Officer of the Pass Through Trustee has actual
knowledge that certain Pass Through Certificates are so owned shall such Pass
Through Certificates be so disregarded; and provided further that if all Pass
Through Certificates of such Series that would be deemed Outstanding in the
absence of the foregoing provision are owned by the Company, any Related Owner
Trustee or Related Owner Participant or any obligor on such Pass Through
Certificates or by any Affiliate of the Company, any such Related Owner
Trustee or Related Owner Participant or any obligor on such Pass Through
Certificates, then such Pass Through Certificates shall be deemed Outstanding
for the purpose of any such determination. Pass Through Certificates so owned
that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Pass Through Trustee the
pledgee's right so to act with respect to such Pass Through Certificates and
that the pledgee is not the Company, any Related Owner Trustee or Related Owner
Participant or any obligor upon the Pass Through Certificates or any Affiliate
of the Company, any Related Owner Trustee or Related Owner Participant or any
obligor on such Pass Through Certificates. In case of a dispute as to such
right, the advice of counsel shall be full protection in respect of any
decision made by the Pass Through Trustee in accordance with such advice. For
any Series, upon request of the Pass Through Trustee, the Company, the Related
Owner Trustees and the Related Owner Participants promptly shall furnish to
the Pass Through Trustee an Officer's Certificate listing and identifying all
Pass Through Certificates of such Series, if any, known by the Company or any
such Related Owner Trustee or Related Owner Participant to be owned or held by
or for the account of any of the above-described persons; and the Pass Through
Trustee shall be entitled to accept such Officers' Certificates as conclusive
evidence of the facts set forth therein and of the fact that all Pass Through
Certificates of such Series not listed therein are Outstanding for the purpose
of any such determination. For the purpose of determining whether Pass
Through Certificates of a Series are Outstanding as described in this Section
6.04, an "obligor" on such Pass Through Certificates shall include any obligor
or any Affiliate of any such obligor on any Equipment Certificates that
constitute Trust Property of the related Pass Through Trust.
SECTION 6.05. Right of Revocation of Action Taken. For any Series,
at any time prior to (but not after) the evidencing to the Pass Through
Trustee, as provided in Section 6.01 hereof, of any action taken by the
related Certificateholders of the percentage in aggregate of Fractional
Undivided Interests in the related Pass Through Trust specified in this Pass
Through Agreement in connection with such action, any Certificateholder of a
Pass Through Certificate of such Series, the serial number of which is shown
by the evidence to be included among the outstanding serial numbers of the
Pass Through Certificates of such Series, the Certificateholders of which have
consented to such action, may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this Article VI, revoke such
action so far as concerns such Pass Through Certificate. Except as aforesaid,
any such action taken shall be conclusive and binding upon such
Certificateholder for such Pass Through Certificate and upon all future
Certificateholders and owners of such Pass Through Certificate and of any Pass
Through Certificates issued in exchange or substitution therefor, irrespective
of whether or not any notation in regard thereto is made upon any such Pass
Through Certificate or otherwise. Any action taken by such Certificateholders
of the percentage in aggregate of Fractional Undivided Interests in the
related Pass Through Trust specified in this Pass Through Agreement in
connection with such action shall be conclusively binding upon the Pass
Through Trustee and all the Certificateholders of such Series.
SECTION 6.06. ERISA Plan Prohibition. Unless otherwise specified in
the applicable Series Supplement, no employee benefit plan subject to Title I
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
or individual retirement account or plan subject to Section 4975 of the Code
(hereinafter collectively referred to as an "ERISA Plan"), may acquire or hold
any of the Pass Through Certificates. If the Pass Through Certificates are
not described in the applicable Series Supplement as being eligible for
purchase by ERISA Plans, the purchase by any person of any Pass Through
Certificate constitutes a representation by such person to the Company, the
Related Owner Participants, the Related Owner Trustees, the Related Indenture
Trustees and the Pass Through Trustee that such person is not an ERISA Plan
and that such person is not acquiring, and has not acquired, such Pass Through
Certificate with assets of an ERISA Plan.
ARTICLE VII
REMEDIES OF PASS THROUGH TRUSTEE
AND CERTIFICATEHOLDERS
SECTION 7.01. Events of Default. If, for any Pass Through Trust, an
Indenture Event of Default under an Indenture relating to any Equipment
Certificate that constitutes Trust Property of such Pass Through Trust (an
"Event of Default") shall occur and be continuing, then, and in each and every
case, the Pass Through Trustee may vote all of the Equipment Certificates
under such Indenture held by such Pass Through Trust, and upon the direction
of the Majority In Interest of Certificateholders of the related Series, the
Pass Through Trustee shall vote a corresponding majority of such Equipment
Certificates in favor of directing the applicable Related Indenture Trustee to
declare the unpaid principal of such Equipment Certificates then outstanding,
together with interest accrued but unpaid thereon and all other amounts due
under such Equipment Certificates and the related Indenture, to be due and
payable under, and in accordance with the provisions of, such Indenture. In
addition, if such Event of Default shall have occurred and be continuing, the
Pass Through Trustee may in accordance with such related Indenture vote such
Equipment Certificates to direct the applicable Related Indenture Trustee
regarding the exercise of remedies provided in such Indenture.
If, for any Pass Through Trust, an Event of Default shall have
occurred and be continuing, the Pass Through Trustee may, and upon the
direction of the Majority In Interest of Certificateholders of the related
Series shall, by such officer or agent as it may appoint, sell, convey,
transfer and deliver any Equipment Certificates held in such Pass Through
Trust that are subject to the corresponding Indenture Event of Default,
without recourse to or warranty by the Pass Through Trustee or any
Certificateholder of such Series, to any Person. In any such case, the Pass
Through Trustee shall sell, assign, contract to sell or otherwise dispose of
and deliver any such Equipment Certificates in one or more parcels at public
or private sale or sales, at any location or locations at the option of the
Pass Through Trustee, all upon such terms and conditions as it may reasonably
deem advisable and at such prices as it may reasonably deem advisable, for
cash. If the Pass Through Trustee so decides or is required to sell or
otherwise dispose of any Equipment Certificates pursuant to this Section 7.01,
the Pass Through Trustee shall take such of the actions described above as it
may reasonably deem most effective to complete the sale or other disposition of
such Equipment Certificates, so as to provide for the payment in full of all
amounts due on such Equipment Certificates with respect to the related Series.
Notwithstanding the foregoing, any action taken by the Pass Through Trustee
under this Section 7.01 shall not, in the reasonable judgment of the Pass
Through Trustee, be adverse to the best interests of the Certificateholders of
such Series.
SECTION 7.02. Incidents of Sale of Equipment Certificates. Upon any
sale of all or any part of the Equipment Certificates held in any Pass Through
Trust made either under the power of sale given under this Pass Through
Agreement or the related Series Supplement or otherwise for the enforcement of
this Pass Through Agreement and the related Series Supplement, the following
shall be applicable:
(1) Any Certificateholder of the related Series, the Pass Through
Trustee in its individual or any other capacity or any other Person may bid
for and purchase any of such Equipment Certificates, and upon compliance
with the terms of sale, may hold, retain, possess and dispose of such
Equipment Certificates in its or their own absolute right without further
accountability.
(2) The receipt of the Pass Through Trustee or of the officer making
such sale shall be a sufficient discharge to any purchaser for his purchase
money, and, after paying such purchase money and receiving such receipt,
such purchaser or its personal representative or assigns shall not be
obliged to see to the application of such purchase money, or be in any way
answerable for any loss, misapplication or non-application thereof.
(3) Any moneys collected by the Pass Through Trustee upon any sale
made either under the power of sale given by this Pass Through Agreement or
the related Series Supplement or otherwise for the enforcement of the
related Pass Through Trust, shall be deposited and distributed as a Special
Payment as provided in Article V hereof.
SECTION 7.03. Pass Through Trustee May Prove Debt. If any amount
payable under any Equipment Certificate held by any Pass Through Trust is not
paid when due and payable, the Pass Through Trustee, in its own name and as
trustee of an express trust, as holder of such Equipment Certificate shall be,
to the extent permitted by and in accordance with the terms of the related
Indenture Documents, entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the
applicable Owner Trustee, in the case of an Equipment Trust Certificate, or
the Company, in the case of an Equipment Purchase Certificate, or other
obligor upon such Equipment Certificate and collect in the manner provided by
law out of the property of such Owner Trustee, or the Company or such other
obligor upon such Equipment Certificate, as the case may be, wherever
situated, the moneys adjudged or decreed to be payable.
All rights of action and of asserting claims under this Pass Through
Agreement, or under any of the Pass Through Certificates, may be prosecuted and
enforced by the Pass Through Trustee without the possession of any of such Pass
Through Certificates or the production thereof in any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Pass Through Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Pass Through Trustee, each
predecessor Pass Through Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Certificateholders of the related
Series.
In any proceedings brought by the Pass Through Trustee (and also any
proceedings involving the interpretation of any provision of this Pass Through
Agreement or any Series Supplement to which the Pass Through Trustee shall be a
party) the Pass Through Trustee shall be held to represent all the
Certificateholders of the related Series, and it shall not be necessary to
make any such Certificateholders parties to any such proceedings.
SECTION 7.04. Remedies Cumulative. Each and every right, power and
remedy given to the Pass Through Trustee or to any of the Certificateholders
of any Series specifically or otherwise under any Pass Through Trust shall be
cumulative and shall be in addition to every other right, power and remedy
specifically given thereunder or now or hereafter existing at law, in equity
or by statute, and each and every right, power and remedy whether specifically
given thereunder or otherwise existing may be exercised from time to time and
as often and in such order as may be deemed expedient by the Pass Through
Trustee or the Certificateholders of the related Series, and the exercise or
the beginning of the exercise of any power or remedy shall not be construed to
be a waiver of the right to exercise at the same time or thereafter any other
right, power or remedy. No delay or omission by the Pass Through Trustee or
of any such Certificateholder in the exercise of any right, remedy or power or
in the pursuance of any remedy shall impair any such right, power or remedy or
be construed to be a waiver of any default on the part of the applicable Owner
Trustee, if any, or the Company, as the case may be, or to be an acquiescence
therein.
SECTION 7.05. Suits for Enforcement. If an Indenture Event of
Default has occurred, has not been waived and is continuing, the Pass Through
Trustee may in its discretion and subject to its rights of appropriate
indemnification under Sections 7.07 and 8.03 and Article IX hereof, to the
extent permitted by and in accordance with the Indenture Documents, proceed to
protect and enforce its rights and rights of the Certificateholders of the
related Series by such appropriate judicial proceedings as the Pass Through
Trustee shall deem most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement under the related Pass
Through Trust or in aid of the exercise of any power granted thereunder or to
enforce any other legal or equitable right vested in the Pass Through Trustee
or the Certificateholders under such Pass Through Trust or by law; provided
that any sale of any portion of the related Trust Property shall be done in
accordance with Section 7.02 hereof.
SECTION 7.06. Discontinuance of Proceedings. If the Pass Through
Trustee or any Certificateholder of any Series institutes any proceeding to
enforce any right, power or remedy under the related Pass Through Trust, and
such proceeding is discontinued or abandoned for any reason or is determined
adversely to the Pass Through Trustee or such Certificateholder, then and in
every such case the applicable Owner Trustee, if any, and the applicable
Indenture Trustee, the Pass Through Trustee, the Certificateholders of such
Series and the Company shall, subject to any determination in such proceeding,
be restored to their former positions and rights under such Pass Through Trust
with respect to the Trust Property and all rights, remedies and powers of the
Pass Through Trustee and such Certificateholders shall continue as if no such
proceeding had been instituted.
SECTION 7.07. Limitations on Suits by Certificateholders. No
Certificateholder of any Series shall have any right by virtue or by availing
of any provision of the related Pass Through Trust to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to such Pass Through Trust, or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for any other
remedy thereunder, unless such Certificateholder previously has notified the
Pass Through Trustee in writing of an Event of Default under such Pass Through
Trust and of the continuance thereof, as provided herein, and the
Certificateholders of the related Pass Through Certificates then Outstanding
(or the proxy therefor) representing in the aggregate not less than 25% of the
Fractional Undivided Interests of Pass Through Certificates then Outstanding
under such Pass Through Trust have requested in writing that the Pass Through
Trustee institute such action or proceedings in its own name as trustee under
such Pass Through Trust and have offered to the Pass Through Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Pass Through Trustee
for 60 days after its receipt of such notice, request and offer of indemnity
has failed to institute any such action or proceedings and no direction
inconsistent with such written request has been given to the Pass Through
Trustee pursuant to Section 7.10 hereof; it being understood and intended, and
being expressly covenanted by such Certificateholder with every other
Certificateholder of such Series and the Pass Through Trustee, that no one or
more Certificateholders of such Series shall have any right in any manner
whatever to affect, disturb or prejudice the rights of any other
Certificateholder of such Series or to obtain or seek to obtain priority over
or preference to any other Certificateholder of such Series or to enforce any
right under the related Pass Through Trust, except in the manner provided
therein and for the equal, ratable and common benefit of all
Certificateholders of such Series. For the protection and enforcement of the
provisions of this Section 7.07, each and every Certificateholder of the
related Series and the Pass Through Trustee shall be entitled to such relief
as can be given either at law or in equity.
SECTION 7.08. Unconditional Right of Certificateholders to Receive
Principal, Interest and Premium, and to Institute Certain Suits.
Notwithstanding any other provision in this Pass Through Agreement, any Series
Supplement or any Pass Through Certificate issued pursuant to such Series
Supplement, the right of any Certificateholder of the related Series to
receive distributions on such Pass Through Certificate of Scheduled Payments
or Special Payments pursuant to Article V hereof on or after the respective
due dates set forth in such Series Supplement, or, subject to Section 7.07
hereof, to institute suit for the enforcement of any such distribution on or
after such respective dates as provided herein or therein, shall not be
impaired or affected without the consent of such Certificateholder. The
purchase by any Certificateholder of any Pass Through Certificate constitutes
the consent of such Certificateholder to the retention by the Pass Through
Trustee of certain amounts otherwise distributable to such Certificateholder
in accordance with Section 5.05 hereof.
SECTION 7.09. Control by Certificateholders. A Majority In Interest
of Certificateholders of any Series has the right with respect to the related
Pass Through Trust to direct the Pass Through Trustee as to the time, method,
and place of conducting any proceeding for any remedy available to the Pass
Through Trustee, or exercising any trust or power conferred on the Pass
Through Trustee under such Pass Through Trust; provided that such direction is
not otherwise than in accordance with law and the provisions of such Pass
Through Trust and the Pass Through Trustee has received, to the extent
provided in Sections 7.07 and 8.03 and Article IX hereof, such reasonable
indemnification as it may require against the costs, expenses and liabilities
to be incurred by the Pass Through Trustee; and provided further that the Pass
Through Trustee has the right to decline to follow any such direction if the
Pass Through Trustee, being advised by counsel, determines that the action or
proceeding so directed may not lawfully be taken or if the Pass Through
Trustee in good faith by its board of directors, the executive committee, or a
trust committee of directors or Responsible Officers of the Pass Through
Trustee determines that the action or proceedings so directed would involve
the Pass Through Trustee in personal liability or if the Pass Through Trustee
in good faith so determines that the actions or forebearances specified in or
pursuant to such direction would be unduly prejudicial to the interests of the
Certificateholders of such Series not joining in the giving of said direction,
it being understood that the Pass Through Trustee shall have no duty to
ascertain whether or not such actions or forebearances are unduly prejudicial
to such Certificateholders.
Nothing in this Pass Through Agreement or any Series Supplement shall
impair the right of the Pass Through Trustee in its discretion to take any
action deemed proper by the Pass Through Trustee with respect to the related
Pass Through Trust and which is not inconsistent with such direction by
Certificateholders of the related Series.
SECTION 7.10. Waiver of Past Events of Default. Upon written
instructions from a Majority in Interest of Certificateholders of any Series,
the Pass Through Trustee shall waive any past Event of Default under the
related Pass Through Trust or the related Series Supplement and its
consequences and upon such waiver such Event of Default will cease to exist
and any Event of Default arising therefrom will be deemed to have been cured
for every purpose of such Pass Through Trust, but no such waiver will extend
to any subsequent or other Event of Default thereunder or impair any right
consequent thereon; provided that any such waiver will be effective to waive
any such past Event of Default and its consequences as described above if, but
only if, the correlative Indenture Event of Default has been waived under the
related Indenture by the requisite holders of the Equipment Certificates
outstanding thereunder; and provided further that in the absence of written
instructions from all Certificateholders of any Series (or the proxy
therefor), the Pass Through Trustee shall not waive any Event of Default (i)
consisting of the failure to pay any principal of, or premium (if any), or
interest on, or other amounts due under, any Equipment Certificate held by the
related Pass Through Trust and the consequent failure to distribute any related
Scheduled Payment or Special Payment pursuant to Article V hereof on or after
the respective due date therefor set forth in the related Series Supplement or
(ii) in respect of a covenant or provision under any Pass Through Trust that,
under Article XI hereof or the related Series Supplement, cannot be modified
or amended without the consent of each Certificateholder of the related Series
(or the proxy therefor).
SECTION 7.11. Notice of Pass Through Defaults. The Pass Through
Trustee shall, in the manner and to the extent required by Section 313(c) of
the Trust Indenture Act, notify the Certificateholders of any Series of all
Pass Through Defaults under the related Pass Through Trust actually known to a
Responsible Officer of the Pass Through Trustee, unless such Pass Through
Defaults have been cured before the giving of such notice; provided that under
no circumstances shall the Pass Through Trustee give such notice until the
earlier of the time at which such Pass Through Default becomes an Event of
Default or the expiration of a period of 60 days from the occurrence of such
Pass Through Default; and provided further that, except in the case of the
failure to pay any principal of or interest on or any other amount due under
any of the Equipment Certificates held by any Pass Through Trust and the
consequent failure to distribute any related Scheduled Payment or Special
Payment pursuant to Article V hereof on or after the respective due date
therefor set forth in the related Series Supplement, the Pass Through Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors or
trustees or Responsible Officers of the Pass Through Trustee in good faith
determines that the withholding of such notice is in the interests of the
Certificateholders of the related Series.
ARTICLE VIII
CONCERNING THE PASS THROUGH TRUSTEE
SECTION 8.01. Acceptance by Pass Through Trustee. The Pass Through
Trustee, upon the execution and delivery of a Series Supplement creating a Pass
Through Trust and providing for the issuance of a Series of Pass Through
Certificates, shall acknowledge its acceptance of all right, title and
interest in and to the Equipment Certificates to be acquired as Trust Property
of such Pass Through Trust pursuant to the applicable Participation Agreements
and Section 2.02 hereof, and shall declare that the Pass Through Trustee holds
and will hold such right, title, and interest, together with all other
property constituting the Trust Property of such Pass Through Trust, for the
benefit of all then present and future Certificateholders of such Series, upon
the trusts set forth in such Pass Through Trust.
SECTION 8.02. Pass Through Trustee's Liens. The Pass Through Trustee
agrees that it will, in its individual capacity and at its own cost and
expense (but without any right of indemnity in respect of any such cost or
expense under Article IX hereof) promptly take such action as may be necessary
to duly discharge all Liens on any part of the Trust Property of any Pass
Through Trust that result from claims (i) against it in its individual
capacity not related to the administration of such Trust Property or any other
transaction pursuant to this Pass Through Agreement or the related Series
Supplement, or (ii) against it as Pass Through Trustee hereunder or in its
individual capacity which arise out of the negligence or willful misconduct of
the Pass Through Trustee as such negligence or willful misconduct shall be
determined by a final decision of a court of competent jurisdiction.
SECTION 8.03. Certain Rights of the Pass Through Trustee. Subject to
Section 315 of the Trust Indenture Act:
(a) the Pass Through Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, Officers' Certificate
or any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon, security or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request of any Related Indenture Trustee or Related Owner
Trustee in connection with any Pass Through Trust shall be sufficiently
evidenced by an Officers' Certificate (unless other evidence in respect
thereof is specifically prescribed herein) upon which the Pass Through
Trustee may rely to prove or establish a matter set forth therein;
(c) the Pass Through Trustee may consult with counsel and any advice
or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken
by it hereunder in good faith and in accordance with such advice or Opinion
of Counsel;
(d) the Pass Through Trustee shall not be obligated to exercise any
of the trusts or powers vested in it under any Pass Through Trust at the
request, order or direction of the Certificateholders of the related Series
in accordance with the provisions thereof, unless such Certificateholders
have offered to the Pass Through Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred therein
or thereby;
(e) the Pass Through Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it under any Pass
Through Trust;
(f) prior to the occurrence of an Event of Default under any Pass
Through Trust and after the curing or waiving of all Events of Default
thereunder, the Pass Through Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing to do so
by the Majority in Interest of Certificateholders of the related Series;
provided that if the payment within a reasonable time to the Pass Through
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Pass Through
Trustee, not reasonably assured to the Pass Through Trustee by the security
afforded to it by the terms of such Pass Through Trust, the Pass Through
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such examination shall be paid by the Company or, if paid by the Pass
Through Trustee or any predecessor trustee, shall be repaid by the Company
upon demand;
(g) the Pass Through Trustee may execute any of the trusts or powers
under any Pass Through Trust or perform any duties hereunder or thereunder
either directly or by or through agents or attorneys not regularly in its
employ and the Pass Through Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or attorney
appointed by it with due care; and
(h) the Pass Through Trustee shall not be required to expend or risk
its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers under any Pass Through Trust, if the Pass Through Trustee has
determined in good faith that the repayment of such funds or adequate
indemnity against such liability is not reasonably assured to it.
SECTION 8.04. Pass Through Trustee Not Responsible for Recitals. The
Pass Through Trustee assumes no responsibility for the correctness of the
recitals contained herein or in any Pass Through Certificates, except for the
execution and authentication of such Pass Through Certificates by the Pass
Through Trustee in accordance with Sections 2.05 and 2.06 hereof,
respectively.
SECTION 8.05. Pass Through Trustee and Agents May Hold Pass Through
Certificates; Collections. The Pass Through Trustee and any agent of the Pass
Through Trustee, in its individual or any other capacity, may become the owner
or pledgee of Pass Through Certificates with the same rights it would have if
it were not the Pass Through Trustee or such agent and, subject to the
applicable provisions of the Trust Indenture Act, may otherwise deal with the
Company, any Related Indenture Trustee or Related Owner Trustee and receive,
collect, hold and retain collections therefrom with the same rights it would
have if it were not the Pass Through Trustee or such agent.
SECTION 8.06. Moneys Held by Pass Through Trustee. Subject to
Sections 5.04 and 12.04 hereof, all moneys received by the Pass Through
Trustee shall, until used or applied as provided herein, be held in trust for
the purposes for which they were received, but need not be segregated from
other funds except to the extent required by mandatory provisions of law.
Subject to Section 5.04 hereof, neither the Pass Through Trustee nor any agent
thereof shall be under any liability for interest on any moneys received by it
hereunder.
SECTION 8.07. Right of Pass Through Trustee to Rely on Officer's
Certificate. Subject to Section 8.03 hereof, whenever in the administration
of any Pass Through Trust the Pass Through Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering
or omitting any action thereunder, such matter (unless other evidence in
respect thereof is specifically prescribed herein) may, in the absence of bad
faith on the part of the Pass Through Trustee, be deemed to be conclusively
proved and established by an Officer's Certificate delivered to the Pass
Through Trustee by the Company, any Related Indenture Trustee or any Related
Owner Trustee, as the case may be, and such certificate, in the absence of bad
faith on the part of the Pass Through Trustee, shall be full warrant to the
Pass Through Trustee for any action taken, suffered or omitted by it under the
provisions of this Pass Through Agreement upon the faith thereof.
SECTION 8.08. Compensation. The Company covenants and agrees to pay,
and the Pass Through Trustee shall be entitled to receive, reasonable
compensation and payment or reimbursement for its reasonable advances,
expenses and disbursements (including the reasonable compensation and expenses
and disbursements of its counsel, agents and other persons not regularly in
its employ) incurred in connection with its services rendered hereunder or in
any way relating to or arising out of the administration of any Pass Through
Trust or the related Trust Property, except any such advance, expense or
disbursement attributable to the Pass Through Trustee's negligence, willful
misconduct or bad faith or incurred as a result of the breach of its
representation, warranty or covenant set forth in Sections 3.03(iv) and 8.02
hereof, and shall have a priority claim on such Trust Property for the payment
of such compensation, advances, expenses and disbursements to the extent that
such compensation, advances, expenses and disbursements shall not be paid by
the Company.
In addition, the Pass Through Trustee shall be entitled to
reimbursement from, and shall have a priority claim on, all property and funds
held or collected by the Pass Through Trustee with respect to any Series or
the related Pass Through Trust in its capacity as Pass Through Trustee for any
tax incurred without negligence, bad faith or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of such
Pass Through Trust (other than any tax attributable to the Pass Through
Trustee's compensation for serving as such), including any costs and expenses
incurred in contesting the imposition of any such tax. If the Pass Through
Trustee reimburses itself from the Trust Property of such Pass Through Trust
for any such tax it shall within 30 days mail a brief report setting forth the
circumstances thereof to all Certificateholders of the related Series as their
names and addresses appear in the related Register.
ARTICLE IX
INDEMNIFICATION OF
PASS THROUGH TRUSTEE BY THE COMPANY
The Company hereby agrees, whether or not any of the transactions
contemplated hereby shall be consummated, to assume liability for, and does
hereby indemnify, protect, save and keep harmless the Pass Through Trustee, in
its individual capacity, and its successors, assigns, agents and servants,
with respect to the claims of the Pass Through Trustee for payment or
reimbursement under Section 8.08 hereof and from and against any and all
liabilities, obligations, losses, damages, penalties, taxes (excluding any
taxes payable by the Pass Through Trustee on or measured by any compensation
received by the Pass Through Trustee for its services under this Pass Through
Agreement), claims, actions, suits, costs, expenses or disbursements
(including legal fees and expenses) of any kind and nature whatsoever which
may be imposed on, incurred by or asserted against the Pass Through Trustee in
its individual capacity (whether or not also agreed to be indemnified against
by any other Person under any other document) in any way relating to or
arising out of this Pass Through Agreement, or any Series Supplement or the
enforcement of any of the terms of any thereof, or in any way relating to or
arising out of the administration of any Pass Through Trust or the related
Trust Property or the action or inaction of the Pass Through Trustee
hereunder, except only (i) in the case of negligence, willful misconduct or
bad faith of the Pass Through Trustee in the performance of its duties
hereunder or under any Series Supplement, (ii) as may result from the
inaccuracy of any representation or warranty of the Pass Through Trustee
herein or in any Participation Agreement or (iii) as otherwise provided in
Section 8.02 hereof. The Pass Through Trustee in its individual capacity
shall be entitled to indemnification, from the related Trust Property, for any
liability, obligation, loss, damage, penalty, claim, action, suit, cost,
expense or disbursement indemnified against pursuant to this Article IX to the
extent not reimbursed by the Company or others, but without releasing any of
them from their respective agreements of reimbursement; and to secure the same
the Pass Through Trustee shall have a prior Lien on such Trust Property. The
indemnities contained in this Article IX shall survive the termination of this
Pass Through Agreement or any Pass Through Trust and the resignation or
removal of the Pass Through Trustee hereunder or thereunder.
ARTICLE X
SUCCESSOR TRUSTEES
SECTION 10.01. Resignation and Removal of Pass Through Trustee;
Appointment of Successor. (a) The Pass Through Trustee may resign at any
time as trustee of any Pass Through Trust without cause by giving at least 30
days prior written notice to the Company, the Related Indenture Trustees and
the Related Owner Trustees, if any, such resignation to be effective upon the
acceptance of the trusteeship by a successor Pass Through Trustee. In
addition, a Majority in Interest of Certificateholders of any Series may at
any time remove the related Pass Through Trustee without cause by an
instrument in writing delivered to the Company, the Related Owner Trustees, if
any, the Related Indenture Trustees and the Pass Through Trustee, and the Pass
Through Trustee shall promptly notify each Certificateholder of such Series of
such removal in writing, such removal to be effective upon the acceptance of
the trusteeship by a successor Pass Through Trustee. In the case of the
resignation or removal of the Pass Through Trustee, a Majority in Interest of
Certificateholders of the related Series may appoint a successor Pass Through
Trustee by an instrument signed by such Certificateholders. If a successor
Pass Through Trustee shall not have been appointed within 90 days after such
notice of resignation or removal, the Pass Through Trustee, the Company or any
Certificateholder of the related Series may apply to any court of competent
jurisdiction to appoint a successor Pass Through Trustee to act until such
time, if any, as a successor shall have been appointed as provided above. The
successor Pass Through Trustee so appointed by such court shall immediately
and without further act be superseded by any successor Pass Through Trustee
appointed by a Majority in Interest of Certificateholders as provided above
within one year from the date of the appointment by such court.
(b) If at any time any of the following occurs with respect to any
Pass Through Trust:
(i) the Pass Through Trustee fails to comply with the requirements
of Section 310 of the Trust Indenture Act after written request for such
compliance by any Certificateholder of the related Series who has been a
bona fide Certificateholder of such Series for at least six months; or
(ii) the Pass Through Trustee ceases to be eligible in accordance
with the provisions of Section 10.02 hereof to act as trustee for such Pass
Through Trust and fails to resign after written request for such
resignation by the Company or by any such bona fide Certificateholder; or
(iii) the Pass Through Trustee becomes incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Pass Through Trustee or of its property shall be appointed, or any public
officer takes charge or control of the Pass Through Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then the Company may remove the Pass Through Trustee and appoint a successor
trustee by written instrument, in duplicate, executed by a Responsible Officer
of the Company, one copy of which instrument shall be delivered to the Pass
Through Trustee so removed and one copy to the successor trustee, or, subject
to the provisions of Section 315(e) of the Trust Indenture Act, any
Certificateholder of the related Series who has been a bona fide
Certificateholder of such Series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Pass Through Trustee and the appointment
of a successor trustee. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, remove the Pass Through Trustee and
appoint a successor trustee, which removal and appointment shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 10.03 hereof. The successor Pass Through Trustee so appointed by
such court shall immediately and without further act be superseded by any
successor Pass Through Trustee appointed by the Certificateholders of the
related Series as provided in subsection (a) above within one year from the
date of appointment by such court.
SECTION 10.02. Persons Eligible for Appointment as Pass Through
Trustee. Each Pass Through Trust shall at all times have a Pass Through
Trustee which shall be a Person eligible to act as trustee under Section
310(a) of the Trust Indenture Act and shall be a corporation organized and
doing business under the laws of the United States of America or of any State
or the District of Columbia having a combined capital and surplus of at least
$100,000,000, or a direct or indirect subsidiary of such a corporation, or a
member of a bank holding company group, having a combined capital and surplus
of at least $100,000,000 and such subsidiary or member itself having a capital
and surplus of at least $10,000,000, which corporate trustee shall be a citizen
of the United States of America as defined in Section 101(16) of the Federal
Aviation Act of 1958, as amended, and which is authorized under such laws to
exercise corporate trust powers and is subject to supervision of examination
by Federal, State or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 10.02, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Pass Through Trustee ceases to be eligible in accordance with the provisions
of this Section 10.02 to act as trustee for any Pass Through Trust, the Pass
Through Trustee shall resign immediately as Pass Through Trustee for such Pass
Through Trust in the manner and with the effect specified in Section 10.01
hereof.
SECTION 10.03. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 10.01 hereof for any Pass
Through Trust shall execute and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment with respect to such Pass
Through Trust, and thereupon the resignation or removal of the predecessor
trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all rights, powers, duties
and obligations of its predecessor with respect to such Pass Through Trust, as
if such successor trustee was originally named as trustee of such Pass Through
Trust. Notwithstanding the foregoing, on the written request of the Company
or the successor trustee, the trustee ceasing to act shall, upon payment of
its charges then unpaid and subject to Section 12.04 hereof, pay over to the
successor trustee all moneys at the time held by it with respect to such Pass
Through Trust and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a prior claim upon all property or funds held
or collected by such trustee with respect to such Pass Through Trust to secure
any amounts then due it pursuant to the provisions of Article IX hereof.
If a successor trustee is appointed with respect to one or more (but
not all) of the Pass Through Trusts created pursuant to this Pass Through
Agreement, the predecessor trustee and each successor trustee with respect to
such Pass Through Trusts shall execute and deliver a supplemental agreement
hereto which shall be sufficient with respect to each such Pass Through Trust
to effect the removal of any predecessor trustee retiring and to vest the
successor trustee with all rights, powers, duties and obligations of its
predecessor under each such Pass Through Trust as to which the predecessor
Pass Through Trustee is retiring, as if such successor trustee was originally
named as Pass Through Trustee hereunder or under the applicable Series
Supplement, and shall add to or change any of the provisions of this Pass
Through Agreement and the applicable Series Supplement as shall be necessary
to provide for or facilitate the administration of such Pass Through Trust
hereunder by more than one Pass Through Trustee.
An institution satisfying the criteria specified in Section 10.02
hereof may be appointed, including pursuant to the relevant Series Supplement,
as the Pass Through Trustee in respect of any Series issued or proposed to be
issued if such institution shall execute and deliver to the Company with
respect to the relevant Pass Through Trust an instrument (which may be the
relevant Series Supplement) accepting such appointment and shall thereupon
become vested with all the rights, powers, trusts and duties of the Pass
Through Trustee in respect of such Pass Through Trust.
It is understood that except as provided in Section 10.05 hereof
nothing herein or in any supplemental agreement or Series Supplement shall
constitute any Pass Through Trustee a co-trustee of any Pass Through Trustee
and that each Pass Through Trustee may be the Pass Through Trustee of one or
more separate Pass Through Trusts.
No institution shall accept appointment as a Pass Through Trustee as
provided in this Section 10.03 unless at the time of such acceptance such
institution shall be eligible under the provisions of Article X hereof to act
as trustee of the relevant Pass Through Trust.
Upon acceptance of appointment by a successor trustee as provided in
this Section 10.03, the successor trustee shall notify the Certificateholders
of the related Series of such appointment by first-class mail at their last
addresses as they shall appear in the Register, and shall mail a copy of such
notice to the Company, the Related Indenture Trustees and the Related Owner
Trustees, if any. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 10.01
hereof.
SECTION 10.04. Merger, Conversion, Consolidation or Succession to
Business of Pass Through Trustee. Any corporation into which the Pass Through
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
the Pass Through Trustee is a party, or any corporation succeeding to the
corporate trust business of the Pass Through Trustee, shall be the successor
to the Pass Through Trustee hereunder, provided that, anything herein to the
contrary notwithstanding, such corporation shall be eligible under the
provisions of Section 10.02 hereof to act as trustee hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
If, with respect to any Pass Through Trusts at the time of such
succession to the Pass Through Trustee, any of the Pass Through Certificates
of the related Series have been authenticated but not delivered, such
successor may adopt the certificate of authentication of any such predecessor
Pass Through Trustee and deliver such Pass Through Certificates so
authenticated; and, if at that time any of such Pass Through Certificates have
not been authenticated, such successor may authenticate such Pass Through
Certificates either in the name of any of its predecessor or in its own name as
the successor Pass Through Trustee; and in all such cases such certificate of
authentication shall have the full force of the certificate of authentication
of the Pass Through Trustee set forth in Section 2.01 hereof; provided that
the right to adopt the certificate of authentication of any predecessor Pass
Through Trustee or to authenticate Pass Through Certificates in the name of
any predecessor Pass Through Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
SECTION 10.05. Appointment of Separate Pass Through Trustees. (a)
At any time or times, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust Property of any Pass Through Trust
may at the time be located or in which any action of the Pass Through Trustee
may be required to be performed or taken, the Pass Through Trustee, by an
instrument in writing signed by it, may appoint one or more individuals or
corporations to act as separate trustee or separate trustees or co-trustee,
acting jointly with the Pass Through Trustee, of all or any part of such Trust
Property, to the full extent that local law makes it necessary for such
separate trustee or separate trustees or co-trustee, acting jointly with the
Pass Through Trustee, to act.
(b) The Pass Through Trustee and, at the request of the Pass Through
Trustee, the Company, shall execute, acknowledge and deliver all such
instruments as may be required by the legal requirements of any jurisdiction
or by any such separate trustee or separate trustees or co-trustee for the
purpose of more fully confirming such title, rights or duties to such separate
trustee or separate trustees or co-trustee. Upon the acceptance in writing of
such appointment by any such separate trustee or separate trustees or
co-trustee, it, he, she or they shall be vested with such title to such Trust
Property or any part thereof, and with such rights, powers, duties and
obligations, as shall be specified in the instrument of appointment, and such
rights, powers, duties and obligations shall be conferred or imposed upon and
exercised or performed by the Pass Through Trustee, or the Pass Through
Trustee and such separate trustee or separate trustees or co-trustee jointly
with the Pass Through Trustee subject to all the terms of this Pass Through
Agreement, except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed the Pass Through Trustee
shall be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations shall be exercised and
performed by such separate trustee or separate trustees or co-trustee, as the
case may be. Any separate trustee or separate trustees or co-trustee may, at
any time by an instrument in writing, constitute the Pass Through Trustee its,
her or his attorney-in-fact and agent with full power and authority to do all
acts and things and to exercise all discretion on its, her or his behalf and
in its, her or his name. In case any such separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, the title to any
Trust Property and all assets, property, rights, powers, duties and
obligations and duties of such separate trustee or co-trustee shall, so far as
permitted by law, vest in and be exercised by the Pass Through Trustee,
without the appointment of a successor to such separate trustee or co-trustee
unless and until a successor is appointed.
(c) All provisions of this Pass Through Agreement which are for the
benefit of the Pass Through Trustee (including without limitation Article IX
hereof) shall extend to and apply to each separate trustee or co-trustee
appointed pursuant to the foregoing provisions of this Section 10.06.
(d) For any Pass Through Trust, every additional trustee and separate
trustee hereunder shall, to the extent permitted by law, be appointed and act
and the Pass Through Trustee shall act, subject to the following provisions
and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Pass Through Trustee in respect of the receipt, custody, investment and
payment of moneys shall be exercised solely by the Pass Through Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Pass Through Trustee shall be conferred or imposed and
exercised or performed by the Pass Through Trustee and such additional
trustee or trustees and separate trustee or trustees jointly except to the
extent that under any law of any jurisdiction in which any particular act
or acts are to be performed, the Pass Through Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
Property in any such jurisdiction) shall be exercised and performed by such
additional trustee or trustees or separate trustee or trustees;
(iii) no power hereby given to, or exercisable by, any such additional
trustee or separate trustee shall be exercised hereunder by such additional
trustee or separate trustee except jointly with, or with the consent of,
the Pass Through Trustee; and
(iv) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder.
If at any time the Pass Through Trustee shall deem it no longer necessary or
prudent in order to conform to any such law, the Pass Through Trustee shall
execute and deliver all instruments and agreements necessary or proper to
remove any additional trustee or separate trustee.
(e) Any request, approval or consent in writing by the Pass Through
Trustee to any additional trustee or separate trustee shall be sufficient
warrant to such additional trustee or separate trustee, as the case may be, to
take such action as may be so requested, approved or consented to.
(f) Notwithstanding any other provision of this Section 10.06, the
powers of any additional trustee or separate trustee shall not exceed those of
the Pass Through Trustee hereunder.
ARTICLE XI
SUPPLEMENTS AND AMENDMENTS TO THIS
PASS THROUGH AGREEMENT AND OTHER DOCUMENTS
SECTION 11.01. Supplemental Agreements Without Consent of
Certificateholders. The Company and the Pass Through Trustee may enter into an
agreement or agreements supplemental hereto for one or more of the following
purposes:
(a) to provide for the formation of any Pass Through Trust, the
issuance of the related Series and the other matters contemplated by
Section 2.01(b) hereof;
(b) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
herein and in each Series Supplement;
(c) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions as the Pass Through Trustee shall
consider to be for the protection of the Certificateholders of any Series;
(d) to surrender any right or power conferred upon the Company
herein or in any Series Supplement;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any Series Supplement that may be defective or
inconsistent with any other provision contained herein or in such Series
Supplement; or to modify any other provision in regard to matters or
questions arising under this Pass Through Agreement or under any Series
Supplement as the Company may deem necessary or desirable and that will not
adversely affect the interests of the related Certificateholders;
(f) to correct or amplify the description of any property at any
time that constitutes Trust Property or better to assure, convey and
confirm unto the Pass Through Trustee any such property to be included in
any such Trust Property;
(g) to evidence and provide for the acceptance and appointment under
this Pass Through Agreement by the Pass Through Trustee or a successor
trustee with respect to one or more Pass Through Trusts and to add to or
change any of the provisions hereof as may be necessary to provide for or
facilitate the administration of one or more Pass Through Trusts by more
than one trustee, pursuant to the requirements of Section 10.03 hereof;
(h) to modify, eliminate or add to the provisions of this Pass
Through Agreement or any Series Supplement to the extent necessary to
continue the qualification of this Pass Through Agreement or such Series
Supplement (including any supplemental agreement) under the Trust Indenture
Act, or under any similar Federal statute enacted after the date hereof,
and to add to this Pass Through Agreement or any Series Supplement such
other provisions as may be expressly permitted by the Trust Indenture Act,
excluding, however, the provisions referred to in Section 316(a)(2) of the
Trust Indenture Act as in effect on the date hereof or any corresponding
provision in any similar Federal statute enacted after the date hereof;
(i) to make any other amendments or modifications to this Pass
Through Agreement, provided such amendments or modifications shall only
apply to one or more Series to be issued after the date of such amendment
or modification; or
(j) to add, eliminate or change any provision hereunder so long as
such action shall not adversely affect the interests of the
Certificateholders of any Series;
provided that no such supplemental agreement shall cause any Pass Through
Trust to become taxable as an association within the meaning of Treasury
Regulation Section 301.7701-4.
The Pass Through Trustee is hereby authorized to join in the
execution of any such supplemental agreement, to make any further appropriate
agreements and stipulations that may be contained therein and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Pass Through Trustee shall not be obligated to enter into
any such supplemental agreement that adversely affects the Pass Through
Trustee's own rights, duties or immunities under this Pass Through Agreement,
any Series Supplement or otherwise, whether in its official or individual
capacity.
Any supplemental agreement contemplated by this Section 11.01 may be
executed without the consent of the Certificateholders of the Outstanding Pass
Through Certificates of any Series, notwithstanding any of the provisions of
Section 11.02 hereof.
SECTION 11.02. Supplemental Agreements With Consent of
Certificate-holders. With the consent (evidenced as provided in Article VI)
of the Majority in Interest of Certificateholders of any Series, the Company
and the Pass Through Trustee may, from time to time and at any time, enter
into an agreement or agreements supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Pass Through Agreement or of the related Series Supplement
or of modifying in any manner the rights of the related Certificateholders;
provided, that no such supplemental agreement shall cause any Pass Through
Trust to become taxable as an association within the meaning of Treasury
Regulation Section 301.7701-4; and provided further that, without the consent
of each Certificateholder of such Series (or the proxy therefor), no such
amendment of or supplement to this Pass Through Agreement or such related
Series Supplement, or modification of the terms of, or consent under, any
thereof, shall (aa) modify any of the provisions of Section 7.10 or this
Section 11.02, (bb) reduce the amount or extend the time of payment of any
amount owing or payable on the related Equipment Certificates or distributions
to be made on any related Pass Through Certificate pursuant to Article V, or
alter the currency in which any amount payable under any such Pass Through
Certificate is to be paid, or impair the right of any related Pass Through
Certificateholder to commence legal proceedings to enforce a right to receive
payment hereunder, (cc) reduce, modify or amend any indemnities in favor of
any Certificateholder (except as consented to by each such Certificateholder
adversely affected thereby (or the proxy therefor)), or (dd) create or permit
the creation of any Lien on the related Trust Property or any part thereof, or
deprive any related Certificateholder of the benefit of the related Pass
Through Trust with respect to the related Trust Property, whether by
disposition of such Trust Property or otherwise, except as provided in Section
7.02 or in connection with the exercise of remedies under Article VII.
Upon the request of the Company and upon the filing with the Pass
Through Trustee of evidence of the consent of the applicable
Certificateholders required under this Section 11.02 and other documents, if
any, required by Section 6.01, the Pass Through Trustee shall join with the
Company in the execution of such supplemental agreement unless such
supplemental agreement affects the Pass Through Trustee's own rights, duties
or immunities under this Pass Through Agreement or the related Series
Supplement or otherwise, in which case the Pass Through Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
agreement.
It shall not be necessary for the consent of the Certificateholders
of any Series under this Section 11.02 to approve the particular form of any
proposed supplemental agreement, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Company and the Pass Through
Trustee of any supplemental agreement relating to any Pass Through Trust
pursuant to the provisions of this Section 11.02, the Pass Through Trustee
shall mail a notice thereof by first-class mail to the related
Certificateholders at their addresses as they shall appear on the related
Register, setting forth in general terms the substance of such supplemental
agreement. Any failure of the Pass Through Trustee to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental agreement.
SECTION 11.03. Effect of Supplemental Agreements. Upon the execution
of any supplemental agreement pursuant to the provisions hereof and of any
applicable Series Supplement, this Pass Through Agreement and such Series
Supplement shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities hereunder and under the related Pass Through Trust of
the Pass Through Trustee, the Company and the related Certificateholders shall
thereafter be determined, exercised and enforced hereunder and thereunder
subject in all respects to such modifications and amendments, and all the
terms and conditions of any such supplemental agreement shall be and be deemed
to be part of the terms and conditions of this Pass Through Agreement and such
Pass Through Trust for any and all purposes.
SECTION 11.04. Documents to Be Given to Trustee. The Pass Through
Trustee, subject to the provisions of Sections 8.02 and 8.03 hereof, may
receive an Officer's Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental agreement complies with the applicable
provisions of this Pass Through Agreement and any applicable Series
Supplement.
SECTION 11.05. Notation on Pass Through Certificates in Respect of
Supplemental Agreements. Pass Through Certificates of any Series
authenticated and delivered after the execution of any supplemental agreement
relating to such Series pursuant to the provisions of this Article XI may bear
a notation in form approved by the Pass Through Trustee as to any matter
provided for by such supplemental agreement. If the Company or the Pass
Through Trustee shall so determine, new Pass Through Certificates for such
Series so modified as to conform, in the opinion of the Company and the Pass
Through Trustee, to any modification of this Pass Through Agreement contained
in any such supplemental agreement may be provided by the Company, executed
and authenticated by the Pass Through Trustee and delivered in exchange for
the Outstanding Pass Through Certificates of such Series.
SECTION 11.06. Trust Indenture Act. Any supplemental agreement
executed pursuant to the terms of this Article XI shall on the date of the
execution thereof conform to the provisions of the Trust Indenture Act as in
force on such date.
SECTION 11.07. Revocation and Effect of Consents. Until an amendment
or waiver becomes effective, a consent to it by a Certificateholder is a
continuing consent by such Certificateholder and every subsequent
Certificateholder of the related Pass Through Certificate, even if notation of
the consent is not made on such Pass Through Certificate. However, any such
Certificateholder or subsequent Certificateholder may revoke the consent as to
his Pass Through Certificate if the Pass Through Trustee receives the notice
of revocation before the date the amendment or waiver becomes effective.
After an amendment or waiver becomes effective, it shall bind every
Certificateholder affected by such amendment or waiver.
SECTION 11.08. Amendments, Waivers, etc., of Related Indenture
Documents. If the Pass Through Trustee, as holder of any Equipment
Certificate in trust for the benefit of the Certificateholders of any Series,
receives a request for a consent to any modification, amendment or supplement
to any related Indenture or other related Indenture Document or to give any
consent, waiver, authorization or approval under such related Indenture or
such other related Indenture Documents, the Pass Through Trustee shall
forthwith notify each Certificateholder of such Series, as shown on the
related Register as of such date, of such request. Such notice shall request
instructions from such Certificateholders with respect to such request.
Subject to Section 7.10 hereof, the Pass Through Trustee shall, as the holder
of such Equipment Certificate, consent or vote with respect thereto in the
same proportion as so instructed by the respective Certificateholders of the
related Pass Through Certificates. Notwithstanding the foregoing, but subject
to Section 7.09 hereof, if an Event of Default shall have occurred and be
continuing, the Pass Through Trustee may, in its own discretion and at its own
direction, consent and notify the Related Indenture Trustee of such consent to
any modification, amendment, supplement or waiver under any related Indenture
Document.
ARTICLE XII
TERMINATION OF PASS THROUGH TRUSTS;
UNCLAIMED MONEYS
SECTION 12.01. Termination of Pass Through Trusts. For any Pass
Through Trust created by this Pass Through Agreement as supplemented by a
related Series Supplement, such Pass Through Trust and the respective
obligations and responsibilities of the Company and the Pass Through Trustee
under such Pass Through Trust shall terminate upon the distribution to all
Certificateholders of the related Series and the Pass Through Trustee of all
amounts required to be distributed to them pursuant to this Pass Through
Agreement and the related Series Supplement and the disposition of all
property held as part of the Trust Property of such Pass Through Trust;
provided that in no event shall such Pass Through Trust continue beyond the
final expiration date determined as provided in such Series Supplement.
Notice of termination of any Pass Through Trust, specifying the
applicable Distribution Date upon which the Certificateholders of the related
Series may surrender their Pass Through Certificates to the Pass Through
Trustee for payment of the final distribution and cancellation thereof, shall
be mailed promptly by the Pass Through Trustee to such Certificateholders not
earlier than the 60th day and not later than the 20th day next preceding such
final distribution specifying (i) the Distribution Date upon which such final
distribution will be made and that such distribution will be made only upon
presentation and surrender of the related Pass Through Certificates at the
office or agency of the Pass Through Trustee specified therein, (ii) the
amount of any such final distribution, and (iii) that the Record Date
otherwise applicable to such Distribution Date is not applicable. The Pass
Through Trustee shall notify the related Registrar at the time such
Certificateholders are notified of such final distribution. Upon presentation
and surrender of the Pass Through Certificates of such Series, the Pass
Through Trustee shall distribute all amounts distributable on such Pass Through
Certificates on such Distribution Date pursuant to Section 5.02 hereof.
SECTION 12.02. Application by Pass Through Trustee of Funds Deposited
for Payment of Pass Through Certificates. Subject to Section 12.04 hereof, all
moneys deposited with the Pass Through Trustee for payment pursuant to Section
12.01 hereof shall be held in trust and applied by it to the prompt payment,
either directly or through any Paying Agent, to the Certificateholders of the
particular Pass Through Certificates for the payment or redemption of which
such moneys have been deposited with the Pass Through Trustee, of all sums due
and to become due thereon; but such money need not be segregated from other
funds except to the extent required by law.
In the event that all of the Certificateholders of such Series shall
not surrender their Certificates for cancellation within six months after the
date specified in the above-mentioned written notice, the Pass Through Trustee
shall give a second written notice to the remaining Certificateholders of such
Series to surrender their Certificates for cancellation and to receive the
final distribution with respect thereto.
SECTION 12.03. Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of any Pass Through Trust, all
moneys then held by any Paying Agent for such Pass Through Trust shall, upon
demand of the Pass Through Trustee, be repaid to it and thereupon such Paying
Agent shall be released from all further liability with respect to such
moneys.
SECTION 12.04. Transfer of Moneys Held by Pass Through Trustee and
Paying Agent Unclaimed for Two Years and Eleven Months. Any moneys deposited
with or paid to the Pass Through Trustee or any Paying Agent to be distributed
on any Pass Through Certificate and not applied but remaining unclaimed for
two years and eleven months after the date upon which such amount has become
due and payable, shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be paid to the
applicable Related Indenture Trustees by the Pass Through Trustee or such
Paying Agent and the applicable Certificateholder shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to such Related Indenture
Trustees for any payment which such Certificateholder may be entitled to
collect, and all liability of the Pass Through Trustee, or any Paying Agent
with respect to such moneys shall thereupon cease.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Capacity in Which Acting. The Pass Through Trustee
acts hereunder and under any Pass Through Trust not in its individual capacity
but solely as trustee except as expressly provided herein or in the related
Series Supplement.
SECTION 13.02. No Legal Title to Trust Property in
Certificateholders. No Certificateholder of any Series shall have legal title
to any part of the Trust Property of the related Pass Through Trust. No
transfer, by operation of law or otherwise, of any Pass Through Certificate or
other right, title and interest of any Certificateholder in and to such Trust
Property or under the related Pass Through Trust shall operate to terminate
such Pass Through Trust or entitle such Certificateholder or any successor or
transferee of such Certificateholder to an accounting or to the transfer to it
of legal title to any part of such Trust Property.
SECTION 13.03. Certificates Nonassessable and Fully Paid. No
Certificateholder of any Series shall be personally liable for obligations of
the related Pass Through Trust, the Fractional Undivided Interests represented
by the Pass Through Certificates of such Series shall be nonassessable for any
losses or expenses of such Pass Through Trust or for any reason whatsoever,
and upon authentication of such Pass Through Certificates by the Pass Through
Trustee pursuant to Section 3.02 hereof, such Pass Through Certificates will
be and shall be deemed fully paid. No Certificateholder of such Series shall
have any right (except as expressly provided herein) to vote or in any manner
otherwise control the operation and management of the related Trust Property,
the related Pass Through Trust, or the obligations of the parties hereto, nor
shall anything set forth herein, in the related Series Supplement or in the
related Pass Through Certificates be construed so as to constitute the
Certificateholders of such Series from time to time as partners or members of
an association.
SECTION 13.04. Pass Through Agreement for the Benefit of the Company,
the Pass Through Trustee and the Certificateholders. Nothing in this Pass
Through Agreement, in any Series Supplement or in any Pass Through
Certificate, whether express or implied, shall be construed to give to any
person other than the Company, the Pass Through Trustee, as trustee and in its
individual capacity, and the Certificateholders of the respective related
Series any legal or equitable right, remedy or claim under or in respect of
this Pass Through Agreement, any Pass Through Trust or any such Pass Through
Certificate.
SECTION 13.05. Limitation on Rights of Certificateholders. The
death or incapacity of any Certificateholder of any Series shall not operate
to terminate this Pass Through Agreement or the related Pass Through Trust,
nor entitle such Certificateholder's legal representatives or heirs to claim
an accounting or to take any action or commence any proceeding in any court
for a partition or winding up of such Pass Through Trust, nor otherwise affect
the rights, obligations, and liabilities of the parties hereto or any of them.
No Certificateholder of any Series shall be entitled to revoke the related
Pass Through Trust.
SECTION 13.06. Notices. Unless otherwise expressly specified or
permitted by the terms hereof or the applicable Series Supplement with respect
to any Pass Through Trust, all notices, requests, demands, authorizations,
directions, consents, waivers or documents provided or permitted by this Pass
Through Agreement or such Series Supplement to be made, given, furnished or
filed with respect to such Pass Through Trust shall be in writing, mailed by
certified mail, postage prepaid, or by confirmed telex or telecopy, and (i) if
to NationsBank, National Association (Carolinas) (formerly known as
NationsBank of South Carolina, National Association), as Pass Through Trustee,
at its office at 1301 Gervis Street, 4th Floor, Columbia, South Carolina 29201
(telecopier (803) 929-5922), Attention: Corporate Trust Administration (with a
copy to NationsBank of Georgia, National Association, at 600 Peachtree Street,
N.E., Suite 900, Atlanta, Georgia 30308 (telecopier (404) 607-6534),
Attention: Corporate Trust Administration); or (ii) if to the Company,
addressed to it at its office at 2007 Corporate Avenue, Memphis, Tennessee
38132 (telecopier (901) 395-4758), Attention: Vice President and Treasurer,
with a copy to Senior Vice President and General Counsel at 1980 Nonconnah
Drive, Memphis, Tennessee 38132 (telecopier (901) 395-4758), and as to any
Series, as otherwise specified in the Series Supplement related thereto. The
Company or the Pass Through Trustee as to any Series, by notice to the other,
may designate additional or different addresses for subsequent notices or
communications. Any party hereto may change the address to which notices to
such party will be sent by giving notice of such change to the other party to
this Pass Through Agreement.
Where this Pass Through Agreement or any Series Supplement provides
for notice to Certificateholders of any Series, such notice shall be
sufficiently given (unless otherwise expressly provided herein) if in writing
and mailed, first-class postage prepaid, to each such Certificateholder
entitled thereto, at his last address as it appears in the related Register.
In any case where notice to Certificateholders of any Series is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Certificateholder shall affect the sufficiency of
such notice with respect to other Certificateholders of such Series. Where
this Pass Through Agreement or any Series Supplement provides for notice in
any manner, such notice may be waived in writing by the person entitled to
receive such notice, either before or after the event, and such waiver shall
be the equivalent of such notice. Waivers of notice by Certificateholders
shall be filed with the Pass Through Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to any
Certificateholders when such notice is required to be given pursuant to any
provision of this Pass Through Agreement or any related Series Supplement,
then any manner of giving such notice as shall be satisfactory to the Pass
Through Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 13.07. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Company to the Pass Through Trustee to take any action, the Company shall
furnish to the Pass Through Trustee (i) an Officer's Certificate stating that
all conditions precedent, if any, provided for in this Pass Through Agreement
and the applicable Series Supplement relating to the proposed action have been
complied with and that the proposed action is in conformity with the
requirements of this Pass Through Agreement and such Series Supplement, and
(ii) an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except that in the
case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Pass Through
Agreement or such Series Supplement relating to such particular application or
demand, no additional certificate or opinion need be furnished.
Each certificate or opinion required by this Pass Through Agreement
or any Series Supplement and delivered to the Pass Through Trustee with
respect to compliance with a condition or covenant provided for in this Pass
Through Agreement or such Series Supplement, except for the certificate
required by Section 4.03(d) hereof shall include (a) a statement that the
person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based, (c) a statement that, in the opinion of such
person, he 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 (d) a statement as to whether or not,
in the opinion of such person, such condition or covenant has been complied
with.
Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters information with respect to which is
in the possession of the Company, upon the certificate, statement or opinion
of or representations by an officer or officers of the Company unless such
counsel knows that the certificate, statement or opinion or representations
with respect to the matters upon which his certificate, statement or opinion
may be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel thereto may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm
of accountants employed by the Company unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Pass Through Trustee shall contain a statement that
such firm is independent.
SECTION 13.08. Conflict of Any Provision of Pass Through Agreement
with the Trust Indenture Act. If and to the extent that any provision of this
Pass Through Agreement limits, qualifies or conflicts with another provision
included in this Pass Through Agreement by operation of Sections 310 to 317,
inclusive, of the Trust Indenture Act (an "incorporated provision"), such
incorporated provision shall control.
SECTION 13.09. Severability. Any provision of this Pass Through
Agreement or any Series Supplement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or thereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
SECTION 13.10. No Oral Modifications or Continuing Waivers. No
terms or provisions of this Pass Through Agreement, any Series Supplement, or
any Pass Through Certificates may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party or other
person against whom enforcement of the change, waiver, discharge or
termination is sought; and any waiver of the terms hereof or thereof shall be
effective only in the specific instance and for the specific purpose given.
SECTION 13.11. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of
the parties hereto and the successors and permitted assigns of each, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Certificateholder shall bind the successors and
assigns of such Certificateholder.
SECTION 13.12. Headings. The headings of the various Articles and
Sections herein and in the table of contents hereto are for the convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
SECTION 13.13. Normal Commercial Relations. Anything contained in
this Pass Through Agreement to the contrary notwithstanding, the Pass Through
Trustee and any Certificateholder, or any bank or other affiliate of any such
party, may conduct any banking or other financial transactions, and have
banking or other commercial relationships, with the Company fully to the same
extent as if this Pass Through Agreement were not in effect, including without
limitation the making of loans or other extensions of credit to the Company
for any purpose whatsoever, whether related to any of the transactions
contemplated hereby or otherwise.
SECTION 13.14. Governing Law; Counterpart Form. THIS PASS THROUGH
AGREEMENT, EACH SERIES SUPPLEMENT AND EACH PASS THROUGH CERTIFICATE SHALL IN
ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE. This Pass Through Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
SECTION 13.15. Distributions Due on Days Other than Business Days.
If, for any Pass Through Trust, any Distribution Date is not a Business Day,
then such distribution need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on the
applicable Distribution Date, and no interest shall accrue for the intervening
period.
IN WITNESS WHEREOF, the parties hereto have caused this Pass Through
Agreement to be duly executed this ____ day of October, 1995 by their
respective officers thereunto duly authorized, and acknowledge that this Pass
Through Agreement has been made and delivered in the City of New York, and
this Pass Through Agreement shall be effective only upon such execution and
delivery.
NATIONSBANK, NATIONAL ASSOCIATION
(CAROLINAS),
not in its individual capacity,
except as otherwise expressly
provided herein, but solely
as Pass Through Trustee
By: _________________________________
Name:
Title:
FEDERAL EXPRESS CORPORATION
By: _________________________________
Name: Robert D. Henning
Title: Assistant Treasurer and Managing
Director - Structured Finance
Exhibit A
to
Pass Through Agreement
FORM OF PASS THROUGH CERTIFICATE
[THIS IS A REGISTERED GLOBAL CERTIFICATE REFERRED TO IN
SECTION 2.12 OF THE WITHIN-MENTIONED AGREEMENT.
Unless this pass through certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Pass Through Trustee or its agent for registration or
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE THEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.](1)
- ----------
(1) This paragraph is required only if the Pass Through Certificates are to
be represented by the Registered Global Certificates.
FEDERAL EXPRESS CORPORATION PASS THROUGH TRUST, 199__ - __
199_ Pass Through Certificate, Series ___
CUSIP ______
Final Regular Distribution Date: _______
evidencing a fractional undivided interest in a pass through trust,
the property of which includes certain Equipment Certificates.
Certificate No. _______
$___________ Fractional Undivided Interest representing. _______ of the Pass
Through Trust per $1,000 face amount.
THIS CERTIFIES THAT ______________, for value received, is the
registered owner of a $_________ (_____________ dollars) Fractional Undivided
Interest in the Federal Express Corporation Pass Through Trust, 199_-_ (the
"Pass Through Trust") created and declared by _________, as pass through
trustee (the "Pass Through Trustee"), pursuant to the Pass Through Trust
Agreement dated as of February 1, 1993, as amended and restated as of October
1, 1995 (the "Pass Through Agreement"), as supplemented by Series Supplement
__ thereto dated ____________, 199_ (the "Series Supplement") between the Pass
Through Trustee and Federal Express Corporation, a corporation incorporated
under Delaware law (the "Company"), a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them
in the Pass Through Agreement and the related Series Supplement.
This Pass Through Certificate is one of the duly authorized Pass
Through Certificates designated as "Federal Express Corporation 199_ Pass
Through Certificates, Series _______." This Pass Through Certificate is issued
under and is subject to the terms, provisions, and conditions of the Pass
Through Agreement and related Series Supplement, to which the
Certificateholder of this Pass Through Certificate by virtue of the acceptance
hereof assents and by which such Certificateholder is bound. The property of
the Pass Through Trust (the "Trust Property") includes certain Equipment
Certificates (the "Equipment Certificates"). Each series of Equipment
(1)This paragraph is required only if the Pass Through Certificates are to be
represented by the Registered Global Certificate.
Certificates is secured by a security interest in (A) an aircraft leased to or
owned by the Company and, in the case of a leased aircraft, an assignment of
the rights of the Related Owner Trustee with respect to such aircraft,
including the right to receive rent and other amounts payable under the
related Lease or Indenture with respect to such aircraft or (B) a collateral
account holding securities purchased with the proceeds of the sale of such
series of Equipment Certificates. The Certificateholders have no rights,
benefits or interests in respect of any other separate trust established
pursuant to the terms of the Pass Through Agreement for any other series of
Pass Through Certificates issued pursuant thereto.
The Pass Through Certificates represent fractional undivided
interests in the Pass Through Trust and the Trust Property, and have no
rights, benefits or interest in respect of any other separate trust
established pursuant to the terms of the Pass Through Agreement for any other
Series of Pass Through Certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Pass Through
Agreement and related Series Supplement, from funds then available to the Pass
Through Trustee, there will be distributed on each ______ and _____ (a
"Regular Distribution Date"), commencing on _______, __, to the Person in
whose name this Pass Through Certificate is registered at the close of
business on the 15th day preceding the applicable Regular Distribution Date,
an amount in respect of the Scheduled Payments on the Equipment Certificates
due on such Regular Distribution Date, the receipt of which has been confirmed
by the Pass Through Trustee, equal to the product of the percentage interest
in the Pass Through Trust evidenced by this Pass Through Certificate and an
amount equal to the sum of such Scheduled Payments. Subject to and in
accordance with the terms of the Pass Through Agreement and the related Series
Supplement, if Special Payments on the Equipment Certificates are received by
the Pass Through Trustee, from funds then available to the Pass Through
Trustee, there shall be distributed on the applicable Special Distribution
Date, to the Person in whose name this Pass Through Certificate is registered
at the close of business on the 15th day preceding such Special Distribution
Date, an amount in respect of such Special Payments on the Equipment
Certificates, the receipt of which has been confirmed by the Pass Through
Trustee, equal to the product of the percentage interest in the Pass Through
Trust evidenced by this Pass Through Certificate and an amount equal to the
sum of such Special Payments so received. If a Distribution Date is not a
Business Day, distribution shall be made on the immediately following Business
Day with the same force and effect as if made on such Distribution Date and no
interest shall accrue during the intervening period. The Special Distribution
Date shall be the ______ day of the month determined as provided in the Pass
Through Agreement and related Series Supplement. The Pass Through Trustee
shall mail notice of each Special Payment and the Special Distribution Date
therefor to the Certificateholder of this Pass Through Certificate.
Distributions on this Pass Through Certificate will be made by the
Pass Through Trustee to the Person entitled thereto, without the presentation
or surrender of this Pass Through Certificate or the making of any notation
hereon. Except as otherwise provided in the Pass Through Agreement and
notwithstanding the above, the final distribution on this Pass Through
Certificate will be made after notice mailed by the Pass Through Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Pass Through Certificate at the office or agency of the Pass Through
Trustee specified in such notice.
[NO EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR INDIVIDUAL
RETIREMENT ACCOUNT OR PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (HEREINAFTER COLLECTIVELY REFERRED TO AS AN "ERISA"
PLAN), MAY ACQUIRE OR HOLD ANY OF THE PASS THROUGH CERTIFICATES. THE PURCHASE
BY ANY PERSON OF ANY PASS THROUGH CERTIFICATE CONSTITUTES A REPRESENTATION BY
SUCH PERSON TO FEDERAL EXPRESS CORPORATION, THE RELATED OWNER PARTICIPANTS, THE
RELATED OWNER TRUSTEES, THE RELATED INDENTURE TRUSTEES AND THE PASS THROUGH
TRUSTEE OR THEIR RESPECTIVE SUCCESSORS, AS THE CASE MAY BE, THAT SUCH PERSON
IS NOT AN ERISA PLAN AND THAT SUCH PERSON IS NOT ACQUIRING, AND HAS NOT
ACQUIRED, SUCH PASS THROUGH CERTIFICATE WITH ASSETS OF AN ERISA PLAN.](*)
This Pass Through Certificate shall be governed by and construed in
accordance with the laws of the State of New York.
Reference is hereby made to the further provisions of this Pass
Through Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Pass Through Trustee, by manual signature, this Pass Through Certificate
shall not be entitled to any benefit under the related Pass Through Trust or
be valid for any purpose.
IN WITNESS WHEREOF, the Pass Through Trustee has caused this Pass Through
Certificate to be duly executed.
FEDERAL EXPRESS CORPORATION
PASS THROUGH TRUST, SERIES 199__-__
By: ______________________,
as Pass Through Trustee
By: _______________________
Authorized Signatory
[FORM OF THE PASS THROUGH TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
This is one of the Pass Through Certificates referred to in the
within-mentioned Pass Through Agreement and related Series Supplement.
______________________,
as Pass Through Trustee
By: ______________________
Authorized Signatory
(*) Subject to revision as set forth in Section 6.06 hereof.
[Reverse of Pass Through Certificate]
The Pass Through Certificates do not represent a direct obligation
of, or an obligation guaranteed by, or an interest in, the Company or the Pass
Through Trustee or any affiliate thereof. The Pass Through Certificates are
limited in right of payment, all as more specifically set forth on the face
hereof and in the Pass Through Agreement and related Series Supplement. All
payments or distributions made to Certificateholders under the Pass Through
Agreement shall be made only from the Trust Property and only to the extent
that the Pass Through Trustee shall have sufficient income or proceeds from
the Trust Property to make such payments in accordance with the terms of the
Pass Through Agreement and related Series Supplement. Each Certificateholder
of this Pass Through Certificate, by its acceptance hereof, agrees that it
will look solely to the income and proceeds from the Trust Property to the
extent available for distribution to such Certificateholder as provided in the
Pass Through Agreement and related Series Supplement. In connection with
withholding taxes, under certain circumstances the Pass Through Trustee may
retain certain amounts otherwise distributable to a Certificateholder. The
purchase by any Certificateholder of any Pass Through Certificate constitutes
the consent of such Certificateholder to such retention in accordance with the
terms of the Pass Through Agreement. This Pass Through Certificate does not
purport to summarize the Pass Through Agreement and related Series Supplement
and reference is made to the Pass Through Agreement and related Series
Supplement for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Pass
Through Agreement may be examined during normal business hours at the
principal office of the Pass Through Trustee, and at such other places, if any,
designated by the Pass Through Trustee, by any Certificateholder upon request.
As of the date of issuance of this Pass Through Certificate, and
assuming that all proceeds are used to purchase the Equipment Certificates on
or before ___________, 199_ and that no prepayment or default
in respect of the Equipment Certificates shall occur, the aggregate scheduled
repayments of principal on the Equipment Certificates for the Pass Through
Trust and the resulting Pool Factors for the Pass Through Trust after taking
into account each such repayment are set forth below:
Pass Through Trust, 199__-___
Scheduled Principal
Regular Payments on
Distribution Date Equipment Certificates Pool Factor
- ----------------------- ------------------------ -------------
$ 0.0000000
The Pass Through Agreement and related Series Supplement permits, with
certain exceptions provided therein, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of
the Certificateholders under the Pass Through Trust at any time by the Company
and the Pass Through Trustee with the consent of the Majority In Interest of
Certificateholders in the Pass Through Trust. Any such consent by the
Certificateholder of this Pass Through Certificate shall be conclusive and
binding on such Certificateholder and upon all future Certificateholders of
this Pass Through Certificate and of any Pass Through Certificate issued upon
the transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent is made upon this Pass Through Certificate. The Pass
Through Agreement and related Series Supplement also permits the amendment
thereof, in certain limited circumstances, without the consent of the
Certificateholders of any of the Pass Through Certificates.
As provided in the Pass Through Agreement and the related Series
Supplement and subject to certain limitations set forth therein, the transfer
of this Pass Through Certificate is registrable in the Register upon surrender
of this Pass Through Certificate for registration of transfer at the
facilities or agencies maintained by the Pass Through Trustee in its capacity
as Registrar, or by any successor Registrar, duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Pass Through
Trustee and the Registrar duly executed by the Certificateholder hereof or
such Certificateholder's attorney duly authorized in writing, and thereupon
one or more new Pass Through Certificates of authorized denominations
evidencing the same aggregate Fractional Undivided Interest in the Pass
Through Trust will be issued to the designated transferee or transferees.
The Pass Through Certificates are issuable only as registered Pass
Through Certificates without coupons in minimum denominations of $1,000
Fractional Undivided Interest and integral multiples thereof. As provided in
the Pass Through Agreement and related Series Supplement and subject to
certain limitations set forth therein, Pass Through Certificates are
exchangeable for new Pass Through Certificates of authorized denominations
evidencing the same aggregate Fractional Undivided Interest in the Pass
Through Trust, as requested by the Certificateholder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Pass Through Trustee may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Pass Through Trustee, the Registrar, and any agent of the Pass
Through Trustee or the Registrar may treat the person in whose name this Pass
Through Certificate is registered as the owner hereof for all purposes, and
neither the Pass Through Trustee, the Registrar, nor any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Pass Through
Agreement and related Series Supplement and the Pass Through Trust created
thereby shall terminate upon the distribution to Certificateholders of all
amounts required to be distributed to them pursuant to the Pass Through
Agreement and related Series Supplement and the disposition of all property
held as part of the Trust Property.