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Exhibit 4(a)(2)
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PASS THROUGH TRUST AGREEMENT 1996-A2
Dated May __, 1996
among
UNION TANK CAR COMPANY,
PROCOR LIMITED
and
_______________________________________,
as Pass Through Trustee
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$__________
Union Tank Car Company
1996-A2 Pass Through Trust
Pass Through Certificates,
Series 1996-A2
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TABLE OF CONTENTS TO PASS THROUGH TRUST AGREEMENT 1996-A2
Section Page
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.2. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.3. Form of Documents Delivered to
Pass Through Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.4. Acts of Certificateholders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE II
ACQUISITION OF EQUIPMENT NOTES AND ETCs;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.1. Issuance of Certificates; Acquisition of
Equipment Notes and ETCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.2. Declaration of Trust; Acceptance By Pass Through Trustee . . . . . . . . . . . . . . . . . 18
SECTION 2.3. Limitation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.4. Sale of Equipment Notes Under Certain Circumstances . . . . . . . . . . . . . . . . . . . 19
ARTICLE III
THE CERTIFICATES
SECTION 3.1. Form, Denomination and Execution of Certificates . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.2. Authentication of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.3. Temporary Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.4. Registration of Transfer and Exchange
of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.6. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.7. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.8. Limitation of Liability for Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.9. Book-Entry and Registered Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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Section Page
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ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
SECTION 4.1. Certificate Account and Special Payments Account . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.2. Distribution from Certificate Account and
Special Payments Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 4.3. Statements to Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.4. Investment of Special Payment Money . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE V
THE COMPANIES
SECTION 5.1. Maintenance of Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.2. Consolidation, Merger or Sale of Assets Permitted . . . . . . . . . . . . . . . . . . . . 28
ARTICLE VI
DEFAULT
SECTION 6.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.2. Incidents of Sale of Equipment Notes and ETCs . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.3. Judicial Proceedings Instituted by Pass Through Trustee . . . . . . . . . . . . . . . . . 31
SECTION 6.4. Control by Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.5. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.6. Undertaking to Pay Court Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.7. Right of Certificateholders to Receive Payments Not
to Be Impaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.8. Certificateholders May Not Bring Suit Except
Under Certain Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.9. Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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Section Page
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ARTICLE VII
THE PASS THROUGH TRUSTEE
SECTION 7.1. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 7.2. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 7.3. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 7.4. Not Responsible for Recitals or Issuance of Certificates . . . . . . . . . . . . . . . . . 37
SECTION 7.5. May Hold Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 7.6. Money Held in Pass Through Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.7. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.8. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.9. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.10. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.11. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.12. Maintenance of Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.13. Money for Certificate Payments to Be Held in
Pass Through Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.14. Registration of Equipment Notes and ETCs in
Pass Through Trustee's Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.15. Representations and Warranties of Pass Through Trustee . . . . . . . . . . . . . . . . . . 45
SECTION 7.16. Withholding Taxes; Information Reporting . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.17. Trustee's Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.18. Preferential Collection of Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY PASS THROUGH TRUSTEE
SECTION 8.1. The Companies to Furnish Pass Through Trustee
with Names and Addresses of Certificateholders . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.2. Preservation of Information; Communications
to Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.3. Reports by Pass Through Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.4. Reports by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
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Section Page
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ARTICLE IX
SUPPLEMENTS TO PASS THROUGH TRUST AGREEMENT
SECTION 9.1. Supplements to Pass Through Trust Agreement
Without Consent of Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.2. Supplements to Pass Through Trust Agreement
with Consent of Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 9.3. Documents Affecting Immunity or Indemnity . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 9.4. Execution of Supplements to Pass Through
Trust Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 9.5. Effect of Supplements to Pass Through
Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 9.6. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 9.7. Reference in Certificates to Supplements to Pas0
Through Trust Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE X
AMENDMENTS TO INDENTURE, NOTE DOCUMENTS,
EQUIPMENT TRUST AGREEMENTS AND ETC DOCUMENTS
ARTICLE XI
TERMINATION OF PASS THROUGH TRUST
ARTICLE XII
GUARANTEE OF UNION
SECTION 12.1. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 12.2. Execution and Delivery of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 12.3. Limitation of Union's Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 12.4. Guarantee Unconditional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
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Section Page
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1. Limitation on Rights of Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 13.2. Certificates Nonassessable and Fully Paid . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 13.3. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 13.4. Communication by Certificateholder with
Other Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 13.5. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 13.6. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.7. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.8. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.9. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.10. Benefits of Pass Through Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.11. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.12. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Exhibit A - Form of Certificate
Exhibit B - Guarantee
Exhibit C - Form of DTC Letter of Representations
Schedule I - Description of Equipment Notes to be Issued under the Indenture
Schedule II - Description of ETCs to be Issued under Equipment Trust Agreements
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This PASS THROUGH TRUST AGREEMENT 1996-A2, dated May __, 1996, is made
with respect to the formation of the Union Tank Car Company 1996-A2 Pass
Through Trust, among UNION TANK CAR COMPANY, a Delaware corporation ("Union"),
PROCOR LIMITED, a Canadian corporation and an indirect wholly-owned subsidiary
of Union ("Procor" and together with Union, the "Companies") and
_______________________________________, solely as Pass Through Trustee and not
in its individual capacity.
WITNESSETH:
WHEREAS, an initial $__________ aggregate principal amount Equipment
Trust Certificate, Series 26 and a subsequent $_________ aggregate principal
amount Equipment Trust Certificate, Series 26 (together with the guarantee of
Union to be endorsed thereon, the "Union ETCs"), will be issued pursuant to an
Equipment Trust Agreement, dated May __, 1996 as may be amended or supplemented
from time to time (the "Union Equipment Trust Agreement"), between Union and
_______________________________________, as trustee (the "Union Equipment Trust
Trustee");
WHEREAS, a $__________ aggregate principal amount Equipment Trust
Certificate, Series 26-Can (together with the guarantee of Procor endorsed
thereon, the "Procor ETC" and, together with the Union ETCs, the "ETCs"), will
be issued pursuant to an Equipment Trust Agreement, dated May __, 1996, as may
be amended or supplemented from time to time (the "Procor Equipment Trust
Agreement") between Procor and _______________________________________, as
trustee (the "Procor Equipment Trust Trustee");
WHEREAS, the Union Equipment Trust Trustee will issue the Union ETCs
in connection with the financing of railway tank cars and other rail cars of
the type used in Union's business (the "Union Trust Equipment") and the Procor
Equipment Trust Trustee will issue the Procor ETC in connection with the
financing of railway tank cars and other rail cars of the type used in Procor's
business (the "Procor Trust Equipment");
WHEREAS, pursuant to the terms of this Pass Through Trust Agreement,
the Union Equipment Trust Agreement and the Procor Equipment Trust Agreement,
the Union ETCs and the Procor ETC are to be sold upon their issuance to the
Pass Through Trustee, and the Pass Through Trustee shall purchase the ETCs upon
their issuance and shall hold such ETCs in trust for the benefit of the
Certificateholders;
WHEREAS, a certain Owner Trustee, on behalf of a certain Owner
Participant, will purchase certain Equipment (as defined) from Union;
WHEREAS, the Owner Trustee will lease the Equipment to Union pursuant
to the Lease;
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WHEREAS, such Owner Trustee will issue on a nonrecourse basis
Equipment Notes, under the Indenture, in order to finance not more than 80% of
the purchase price to be paid to Union for the Equipment subject to the Lease;
WHEREAS, pursuant to the terms and conditions of this Pass Through
Trust Agreement and the Participation Agreement, such agreements to be entered
into by the Pass Through Trustee contemporaneously with the execution and
delivery of this Pass Through Trust Agreement, certain Equipment Notes are to
be sold, from time to time, to the Pass Through Trustee, and the Pass Through
Trustee shall purchase, from time to time, such Equipment Notes and shall hold
such Equipment Notes in trust for the benefit of the Certificateholders;
WHEREAS, the Pass Through Trustee, upon execution and delivery of this
Pass Through Trust Agreement, hereby declares the creation of this Pass Through
Trust for the benefit of the Certificateholders, and the initial
Certificateholders as the grantors of the Pass Through Trust, by their
respective acceptances of the Certificates, join in the creation of this Pass
Through Trust with the Pass Through Trustee;
WHEREAS, to facilitate the sale of the ETCs and certain Equipment
Notes to the Pass Through Trustee and the purchase of such ETCs and Equipment
Notes by the Pass Through Trustee, each of Union and Procor has duly authorized
the execution and delivery of this Pass Through Trust Agreement as an "issuer",
as such term is defined in and solely for purposes of the Securities Act of
1933, as amended, of the Certificates being issued hereunder and as an
"obligor", as such term is defined in and solely for purposes of the Trust
Indenture Act of 1939, as amended, with respect to the Certificates and is
undertaking to perform certain administrative and ministerial duties hereunder
and is also undertaking to pay the fees and expenses of the Pass Through
Trustee; and
WHEREAS, this Pass Through Trust Agreement is subject to the
provisions of the Trust Indenture Act of 1939, as amended, and shall, to the
extent applicable, be governed by such provisions;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
(a) For all purposes of this Pass Through Trust Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
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(i) the terms used herein that are defined in this Article
have the meanings assigned to them in this Article, and include the
plural as well as the singular;
(ii) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(iii) all references in this Pass Through Trust Agreement to
designated "Articles", "Sections" and other subdivisions are to the
designated Articles, Sections and other subdivisions of this Pass
Through Trust Agreement; and
(iv) the words "herein", "hereof " and "hereunder" and other
words of similar import refer to this Pass Through Trust Agreement as
a whole and not to any particular Article, Section or other
subdivision.
(b) For all purposes of this Pass Through Trust Agreement, the
following capitalized terms have the following respective meanings:
"Act," with respect to any Certificateholder, has the meaning
specified in Section 1.4.
"Affiliate" of any Person shall mean any other Person which directly
or indirectly controls, or is controlled by, or is under a common control with,
such Person. The term "control", as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Authorized Agent" means any Paying Agent or Registrar.
"Avoidable Tax" has the meaning specified in Section 7.9(e).
"Book-Entry Certificates" means a beneficial interest in the
Certificates, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 3.9.
"Business Day" means any day other than a Saturday or a Sunday or a
day on which commercial banking institutions or trust companies are authorized
or required by law, regulation or executive order to be closed in New York, New
York, Chicago, Illinois, or, solely with respect to payments under the Procor
Equipment Trust Agreement, Toronto, Ontario, Canada, or, so long as any
Certificate is outstanding, a city and state in which the respective Corporate
Trust Office of the Owner Trustee, the Pass Through Trustee, the Indenture
Trustee, any Equipment Trust Trustee or Paying Agent is located.
"Certificate" means any one of the certificates executed and
authenticated by the Pass Through Trustee, substantially in the form of Exhibit
A hereto.
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"Certificate Account" means the account or accounts created and
maintained pursuant to Section 4.1(a).
"Certificateholder" means the Person in whose name a Certificate is
registered in the Register.
"Certificate Owner" means, when used in Section 3.9, the Person who
owns a Book Entry Certificate.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects, directly or indirectly, book-entry transfers and pledges of
securities deposited with the Clearing Agency.
"Closing Date" means May __, 1996.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Companies" means Union Tank Car Company, a Delaware corporation, and
Procor Limited, a Canadian corporation, or their respective successors in
interest pursuant to Section 5.2, or any other obligor with respect to the
Certificates (within the meaning of the Trust Indenture Act).
"Corporate Trust Office" means, with respect to the Pass Through
Trustee, any Equipment Trustee and the Indenture Trustee, the office of such
trustee in the city at which at any particular time its corporate trust
business shall be principally administered.
"De Minimis Certificate" has the meaning specified in Section 3.1.
"Direction" has the meaning specified in Section 1.4(c).
"Equipment" means, with respect to the Union ETCs, all of the Union
Trust Equipment, with respect to the Procor ETC, all of the Procor Trust
Equipment, and with respect to the Equipment Notes, all of the Units covered by
the Lease; or as the context may require, all of the Equipment covered by the
ETCs and the Equipment Notes.
"Equipment Note" means any one of the Equipment Notes (as defined in
the Indenture) described on Schedule I attached hereto, including any Equipment
Note (as so defined) issued under the Indenture as a replacement or
substitution therefor, held by the Pass Through Trustee.
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"Equipment Trust Agreement" means either of the Union Equipment Trust
Agreement or the Procor Equipment Trust Agreement, each dated May __, 1996, as
each such Equipment Trust Agreement may be amended or supplemented from time to
time in accordance with its respective terms; and "Equipment Trust Agreements"
means both of such agreements.
"Equipment Trust Default" means, with respect to either Equipment
Trust Agreement, any Event of Default (as such term is defined in such
Equipment Trust Agreement).
"Equipment Trust Trustee" means the Union Equipment Trust Trustee and
the Procor Equipment Trust Trustee.
"ETC" means any one of the Equipment Trust Certificates described in
Schedule II attached hereto, including any ETC (as so defined) issued under the
applicable Equipment Trust Agreement as a replacement or substitution therefor,
held by the Pass Through Trustee.
"ETC Documents", with respect to an ETC, means the applicable
Equipment Trust Agreement.
"Guarantee" means the guarantee of Union set forth in Article XII
hereof and on each of the Certificates.
"Escrow Account" has the meaning specified in Section 2.1(b).
"Escrowed Funds" has the meaning specified in Section 2.1(b).
"Event of Default" means an event described in Section 6.1.
"Fractional Undivided Interest" means the undivided interest in the
Pass Through Trust that is evidenced by an Outstanding Certificate expressed as
a fraction of the total undivided interests in the Pass Through Trust
represented by all Outstanding Certificates.
"Indenture" means the Trust Indenture and Security Agreement (UTC
Trust No. 1996-A) (L-___), dated May __, 1996, between the Owner Trustee and
the Indenture Trustee, as the Indenture may be amended or supplemented from
time to time in accordance with its terms. The term "Indenture" includes each
Indenture Supplement entered into pursuant to the terms of the Indenture.
"Indenture Default" means, with respect to the Indenture, any
Indenture Event of Default (as such term is defined in the Indenture).
"Indenture Trustee" means _______________________________________, in
its capacity as indenture trustee under the Indenture, and any other Person
which may from time to time be acting as Indenture Trustee in accordance with
the provisions of the Indenture.
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"Initial Cut-off Date" means May __, 1996.
"Issuance Date" means the date of the issuance of the Certificates.
"Lease" means the Equipment Lease Agreement (UTC Trust No. 1996-A)
(L-14_) with respect to the Equipment between the Owner Trustee, as the lessor,
and Union, as the lessee, as the Lease may be amended or supplemented from time
to time in accordance with its terms. Such term shall include each Lease
Supplement entered into pursuant to the terms of the Lease.
"Lease Event of Default" means, with respect to the Lease, an Event of
Default under the Lease as specified in Section 14 thereof.
"Lease Supplement" has the meaning assigned to that term in the Lease.
"Letter of Representations" means the agreement among the Companies,
the Pass Through Trustee and the initial Clearing Agency substantially in the
form attached hereto as Exhibit C.
"Make-Whole Amount" has the meaning assigned to that term in the
Indenture.
"Note Documents," with respect to any Equipment Note, means the
Indenture, the Lease and the Participation Agreement.
"Officer's Certificate" means a certificate signed, (a) in the case of
either of the Companies, by (i) the Treasurer, any Assistant Treasurer, the
Controller or any Assistant Controller of such Company, signing alone, or (ii)
any Vice President signing together with the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of such Company, or (b) in
the case of the Owner Trustee, an Equipment Trust Trustee or the Indenture
Trustee, a Responsible Officer of such Owner Trustee, Equipment Trust Trustee
or Indenture Trustee.
"Opinion of Counsel" means a written opinion of legal counsel, who (i)
in the case of counsel for either of the Companies may be (A) a lawyer employed
by such Company, (B) ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, or (C) such other counsel
designated by such Company and reasonably acceptable to the Pass Through
Trustee and (ii) in the case of the Owner Trustee, any Equipment Trust Trustee
or the Indenture Trustee, such counsel as may be designated by any of them
whether or not such counsel is an employee of any of them, and who shall be
acceptable to the Pass Through Trustee.
"Outstanding," with respect to Certificates, means, as of the date of
determination, all Certificates theretofore authenticated and delivered under
this Pass Through Trust Agreement, except:
(i) Certificates theretofore canceled by the Registrar or
delivered to the Pass Through Trustee or the Registrar for
cancellation;
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(ii) Certificates for which money in the full amount required
to make the final distribution payment to be made pursuant to Section
11.1 hereof has been theretofore deposited with the Pass Through
Trustee in trust for the Certificateholders as provided in Section 4.1
pending distribution of such money to the Certificateholders pursuant
to such final distribution payment; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this
Pass Through Trust Agreement.
"Owner Participant" means the "Owner Participant" referred to in the
Participation Agreement and any permitted successor or assign of any such Owner
Participant.
"Owner Trustee," with respect to any Equipment Note or the Indenture
or the Lease, means State Street Bank and Trust Company, not in its individual
capacity but solely as owner trustee of an owner trust for the benefit of the
Owner Participant, and each other Person which may from time to time be acting
as Owner Trustee in accordance with the provisions of the Note Documents.
"Participation Agreement" means the Participation Agreement (UTC Trust
No. 1996-A) (L-14_), dated May __, 1996, and to which the Pass Through Trustee,
the Owner Trustee, the Indenture Trustee, the Owner Participant, and Union are
parties, as the Participation Agreement may be amended or supplemented from
time to time in accordance with its respective terms.
"Pass Through Trust" means the trust created by this Pass Through
Trust Agreement, the estate of which consists of the Trust Property.
"Pass Through Trust Agreement" means this Pass Through Trust
Agreement, as it may be amended from time to time in accordance with the terms
hereof.
"Pass Through Trustee" means the institution executing this Pass
Through Trust Agreement as Pass Through Trustee, or its successor in interest,
and any successor trustee appointed as provided herein.
"Paying Agent" means the paying agent maintained and appointed
pursuant to Section 7.12.
"Permitted Investments" means each of (i) direct obligations of the
United States of America and agencies thereof; (ii) obligations fully
guaranteed by the United States of America; (iii) certificates of deposit
issued by, or bankers' acceptances of, or time deposits with, any bank, trust
company or national banking association incorporated or doing business under
the laws of the United States of America or one of the states thereof having
combined capital and surplus and retained earnings of at least $100,000,000,
having general obligations rated at least A1 by ▇▇▇▇▇'▇ Investors Service, Inc.
or A+ by Standard & Poor's Corporation (but excluding any new investment as to
which there is a public announcement by the rating agency providing
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a rating thereon that such rating is under consideration for a possible
downgrade below A1 or A+, as the case may be), including the Owner Trustee in
its individual capacity or the Indenture Trustee in its individual capacity if
such conditions are met; (iv) commercial paper of any holding company of a
bank, trust company or national banking association described in clause (iii);
(v) bearer note deposits with, or certificates of deposit issued by, or
promissory notes of, any subsidiary incorporated under the laws of Canada (or
any province thereof) of any bank, trust company or national banking
association described in clause (iii); (vi) commercial paper of companies
having a rating of A-l/P-l or better assigned to such commercial paper by
Standard & Poor's Corporation or ▇▇▇▇▇'▇ Investors Service, Inc. (or, if
neither such organization shall rate such commercial paper at any time, by any
nationally recognized rating organization in the United States of America);
(vii) U.S. dollar-denominated certificates of deposit issued by, or time
deposits with, the European subsidiaries of any bank, trust company or national
banking association described in clause (iii); (viii) Canadian Treasury Bills
fully hedged to U.S. dollars; (ix) bonds, notes or other obligations of any
state of the United States of America, or any political subdivision of any such
state, or any agencies or other instrumentalities of any such state, including,
but not limited to, industrial development bonds, pollution control revenue
bonds, public power bonds, housing bonds, other revenue bonds or any general
obligation bonds; provided that, at the time of their purchase, such
obligations are rated in the highest rating category by Standard & Poor's
Corporation or ▇▇▇▇▇'▇ Investors Service, Inc. (or, if neither such
organization shall rate such obligations at such time, by any nationally
recognized rating organization in the United States of America); or (x) bonds
or other debt instruments of any company, if such bonds or other debt
instruments, at the time of their purchase, are rated in the highest rating
category by Standard & Poor's Corporation or ▇▇▇▇▇'▇ Investors Service, Inc.
(or, if neither such organization shall rate such obligations at such time, by
any nationally recognized rating organization in the United States of America);
provided that no investment shall be eligible as and included within the
definition of the term "Permitted Investment" unless either (x) the final
maturity or date of return of such investment is equal to one year or less from
the date of purchase thereof, or (y) in the case of any investment referred to
in the foregoing clause (i) or (ii) only, such investment has a final maturity
or date of return greater than one year from the date of purchase thereof and
closing prices on a national securities exchange or bid and asked prices,
closing prices or yields to maturity for such investment are reported in The
Wall Street Journal (or if The Wall Street Journal is not at the time published
or ceases to report such prices, such prices are reported by any other
publication of nationally recognized standing of general circulation in New
York City).
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
or government or any agency or political subdivision thereof.
"Pool Balance" means, as of any date, the aggregate unpaid principal
amount of the ETCs and the Equipment Notes held in the Pass Through Trust on
such date plus the amount of the principal payments on the ETCs and the
Equipment Notes held by the Pass Through Trustee and not yet distributed plus
the amount of any moneys held in the Escrow Account (other than earnings
thereon). The Pool Balance as of any Regular Distribution Date or Special
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Distribution Date shall be computed after giving effect to the payment of
principal, if any, on the Equipment Notes held in the Pass Through Trust and
distribution thereof to be made on that date.
"Pool Factor" means, as of any date, the quotient (rounded to the
seventh decimal place) computed by dividing (i) the Pool Balance by (ii) the
aggregate original principal amount of the Certificates issued under the Pass
Through Trust. The Pool Factor as of any Regular Distribution Date or Special
Distribution Date shall be computed after giving effect to the payment of
principal, if any, on the ETCs and the Equipment Notes held in the Pass Through
Trust and distribution thereof to be made on that date.
"Postponed Notes" means the Equipment Notes or ETCs as to which a
Postponement Notice shall have been delivered pursuant to Section 2.1(b).
"Postponement Notice" means a certificate of Union signed by an
officer of Union (i) requesting that the Pass Through Trustee execute and
deliver the Participation Agreement but temporarily postpone payment of the
purchase price of the Equipment Notes or ETCs to a date later than the Issuance
Date, (ii) identifying the amount of the purchase price of each Equipment Note
or ETC and the aggregate purchase price of all such Equipment Notes or ETCs,
(iii) setting forth the reasons for such postponement and (iv) with respect to
the Participation Agreement referred to in clause (i), either (A) setting or
resetting a new Closing Date (which shall be on or prior to the Initial Cut-off
Date) for payment by the Pass Through Trustee of such purchase price and
issuance of the Equipment Note or ETC, or (B) indicating that such new Closing
Date (which shall be on or prior to the Initial Cut-Off Date) will be set by
subsequent written notice not less than one Business Day prior to such new
Closing Date.
"Procor Equipment Trust Trustee" means
_______________________________________, in its capacity as the trustee under
the Procor Equipment Trust Agreement, and any other Person which from time to
time will be acting as Equipment Trust Trustee in accordance with the
provisions of the Procor Equipment Trust Agreement.
"Record Date" means the Business Day preceding a Regular Distribution
Date or a Special Distribution Date, as applicable.
"Register" has the meaning specified in Section 3.4.
"Registered Certificates" has the meaning specified in Section 3.1.
"Registrar" has the meaning specified in Section 3.4.
"Regular Distribution Date" means, with respect to distributions of
Scheduled Payments, _________ and _________ of each year, commencing on
_________, 1996, until payment of all the Scheduled Payments to be made under
the Equipment Notes and the ETCs has been made.
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"Request" means a request by Union, on behalf of the Companies,
setting forth the subject matter of the request accompanied by an Officer's
Certificate and an Opinion of Counsel as provided in Section 1.2 of this Pass
Through Trust Agreement.
"Responsible Officer" means (i) with respect to the initial Pass
Through Trustee, any initial Equipment Trust Trustee or the initial Indenture
Trustee, any officer in the Corporate Trust Office or any other office at which
the Pass Through Trustee, any Equipment Trust Trustee or the Indenture Trustee
conducts corporate trust business; and (ii) with respect to any successor Pass
Through Trustee, successor Equipment Trust Trustee, successor Indenture Trustee
or the Owner Trustee, the chairman or vice-chairman of the board of directors
or trustees, the chairman or vice-chairman of the executive or standing
committee of the board of directors or trustees, the president, the chairman of
the committee on trust matters, any vice-president, any second vice-president,
the secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, the comptroller and any assistant comptroller. Responsible Officer
also means, with respect to the Pass Through Trustee, any Equipment Trust
Trustee, the Indenture Trustee and the Owner Trustee, any other officer of the
Pass Through Trustee, the Owner Trustee, such Equipment Trust Trustee or the
Indenture Trustee customarily performing functions similar to those performed
by the persons who at the time shall be any of the above designated officers,
and with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Scheduled Payment" means, with respect to a Regular Distribution
Date, any payment (other than a Special Payment) of interest on or principal of
and interest on: (i) an Equipment Note due from the Owner Trustee which issued
such Equipment Note, which payment represents the installment of principal at
the stated maturity of such installment of principal on such Equipment Note, or
the payment of regularly scheduled interest accrued on the unpaid principal
amount of such Equipment Note, or both, to be made on such Regular Distribution
Date pursuant to the terms of such Equipment Note; or (ii) an ETC, to be made
on such Regular Distribution Date pursuant to the terms of such ETC.
"Special Distribution Date" means (i) in the case of prepayments with
respect to a voluntary termination of the Lease, the purchase of any Units by
Union pursuant to Section 22.1 of the Lease or an ordinary Event of Loss under
the Lease, on a Regular Distribution Date, (ii) in the case of prepayments with
respect to a Multiple Loss under the Lease, a refunding or refinancing of the
Equipment Notes or a purchase of the Equipment by Union from an Owner Trustee
of a competitor Owner Participant, on any Business Day following 15 days notice
from the Pass Through Trustee to The Depository Trust Company and (iii) in the
case of payments received following a default in respect of any Equipment Note,
on the second day of any month, and (iv) with respect to an ETC, the earliest
day of a month for which it is practicable for the Pass Through Trustee to give
notice pursuant to Section 4.2(c) 20 days prior thereto.
"Special Payment" means (i) with respect to an Equipment Note (or
portion thereof), any payment of principal of, Make-Whole Amount, if any, and
interest on such Equipment Note (or
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portion thereof) resulting from the prepayment of such Equipment Note (or
portion thereof) pursuant to Section 2.10 of the applicable Indenture, (ii)
with respect to an Equipment Note, any payment of principal of and interest
(including any interest accruing upon default) on, or any other amount in
respect of, such Equipment Note upon an Indenture Default in respect thereof,
including payments received on account of the purchase by the Owner Trustee of
such Equipment Notes, (iii) the amounts required to be distributed pursuant to
the fifth paragraph of Section 2.1(b), (iv) any proceeds from the sale of any
Equipment Note by the Pass Through Trustee pursuant to Article VI hereof; (v)
with respect to an ETC, any payment of principal of and interest (including any
interest accruing upon default) on, or any other amount in respect of, such ETC
upon an Equipment Trust Default in respect thereof or upon an acceleration
under the Equipment Trust Agreement relating to such ETC, or (vi) any proceeds
from the sale of an ETC by the Pass Through Trustee pursuant to Article VI
hereof; and "Special Payments" means all of such Special Payments.
"Special Payments Account" means the account or accounts created and
maintained pursuant to Section 4.1(b).
"Specified Investments" means (i) direct obligations of the United
States of America and agencies thereof for which the full faith and credit of
the United States of America is pledged, (ii) obligations fully guaranteed by
the United States of America, (iii) certificates of deposit issued by, or
bankers' acceptances of, or time deposits (including overnight deposits) with,
any bank, trust company or national banking association incorporated or doing
business under the laws of the United States of America or one of the States
thereof having combined capital and surplus and retained earnings of at least
$500,000,000 (including the Indenture Trustee or Owner Trustee, in their
respective individual capacities, if such conditions are met), (iv) commercial
paper of companies, banks, trust companies or national banking associations
incorporated or doing business under the laws of the United States of America
or one of the States thereof and in each case having a rating of A-l/P-l or
better assigned to such commercial paper by Standard & Poor's Corporation or
▇▇▇▇▇'▇ Investors Service, Inc. (or, if neither such organization shall rate
such commercial paper at any time, by any nationally recognized rating
organization in the United States of America) and (v) repurchase agreements
with any financial institution described in clause (iii) above having a
combined capital and surplus of at least $750,000,000 fully collateralized by
obligations of the type described in clauses (i) through (iv) above; provided,
however, that if all of the above investments are unavailable, the entire
amount to be invested may be used to purchase Federal Funds from an entity
described in clause (iii) above; and provided further that no investment shall
be eligible as a "Specified Investment" unless the final maturity or date of
return of such investment occurs no later than ___________, 1996.
"Subsequent Cut-off Date" means June __, 1996.
"Trust Indenture Act" means, except as otherwise provided in Section
9.6, the Trust Indenture Act of 1939 as in force at the date as of which this
instrument was executed.
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"Trust Property" means the Union ETCs, the Procor ETC, the Guarantee
and the Equipment Notes held as the property of the Pass Through Trust and all
moneys at any time paid thereon and all moneys due and to become due
thereunder, funds from time to time deposited in the Escrow Account (other than
earnings on Specified Investments), the Certificate Account and the Special
Payments Account and any proceeds from the sale by the Pass Through Trustee
pursuant to Article VI hereof of any Equipment Note.
"Trustee's Liens" means any Lien (within the meaning specified in
Appendix A to the Participation Agreement) arising as a result of (a) any claim
against the Pass Through Trustee or _______________________________________, in
its individual capacity, respectively, not resulting from the actions
contemplated by the Operative Agreements (within the meaning specified in
Appendix A to the Participation Agreement), (b) any act or omission of the Pass
Through Trustee or _______________________________________, in its individual
capacity, respectively, which is not required or permitted by the Operative
Agreements or is in violation of any of the terms of the Operative Agreements,
(c) any claim against the Pass Through Trustee or
_______________________________________, in its individual capacity,
respectively, with respect to Taxes (within the meaning specified in Appendix A
to the Participation Agreement) or Transaction Costs (within the meaning
specified in Appendix A to the Participation Agreement) against which Union is
not required to indemnify the Pass Through Trustee,
_______________________________________, in its individual capacity, pursuant
to the Participation Agreement or (d) any claim arising out of any transfer by
the Pass Through Trustee, of all or any portion of its interests in the
Equipment, the Trust Property or the Operative Agreements other than the
transfer of title to or possession of any Equipment by the Pass Through Trustee
pursuant to and in accordance with the applicable Equipment Trust Agreement or
the Indenture or pursuant to the exercise of the remedies set forth in the
Lease; provided, however, that any Trustee Lien which is attributable solely to
the Pass Through Trustee or _______________________________________, in its
individual capacity and would otherwise constitute a Trustee Lien shall not
constitute a Trustee Lien so long as (i) the existence of such Trustee Lien
poses no material risk of the sale, forfeiture or loss of any Unit or any
interest therein, including Equipment Notes, (ii) the existence of such Trustee
Lien does not interfere in any way with the quiet enjoyment of any Unit by
Union, as lessee and (iii) the Pass Through Trustee or
[_______________________________________], in its individual capacity, is
diligently contesting such Trustee Lien by appropriate proceedings.
"Unit" has the meaning assigned to that term in the Lease.
"Union Equipment Trust Trustee" means
_______________________________________, in its capacity as trustee under the
Union Equipment Trust Agreement, and any other Person which may from time to
time be acting as Equipment Trust Trustee in accordance with the provisions of
the Union Equipment Trust Agreement.
SECTION 1.2. Compliance Certificates and Opinions. Upon any
application or request by the Companies to the Pass Through Trustee to take any
action under any provision of this Pass Through Trust Agreement, Union shall
furnish to the Pass Through Trustee an Officer's
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Certificate stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Pass Through Trust Agreement relating
to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that in the case of any such application
or request as to which the furnishing of such documents is specifically
required by any provision of this Pass Through Trust Agreement relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Pass Through Trust Agreement (other
than a certificate provided pursuant to Section 8.4(d)) shall include:
(i) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are used;
(iii) a statement that, in the opinion of each such
individual, he or she has made such examination or investigation as
necessary to enable him or her to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3. Form of Documents Delivered to Pass Through Trustee. In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any Opinion of Counsel stated to be based on the opinion of other
counsel shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Pass Through Trust Agreement, they may, but need not, be
consolidated and form one instrument.
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SECTION 1.4. Acts of Certificateholders.
(a) Any direction, consent, waiver or other action provided by this
Pass Through Trust Agreement to be given or taken by Certificateholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Certificateholders in person or by an agent duly appointed
in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Pass Through Trustee and, where it is hereby expressly required, to the
Companies, any Equipment Trust Trustee or the Indenture Trustee. Such
instrument or instrument (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Certificateholders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Pass Through Trust Agreement and conclusive
in favor of the Pass Through Trustee, the Companies, any Equipment Trust
Trustee and the Indenture Trustee, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of deeds
or administer oaths that the Person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or such other officer and where such execution
is by an officer of a corporation or association or a member of a partnership,
on behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact
and date of the execution of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any other reasonable
manner which the Pass Through Trustee deems sufficient. In the absence of bad
faith on the part of the Pass Through Trustee, an Officer's Certificate may be
deemed to be conclusively proved.
(c) In determining whether the Certificateholders of the requisite
Fractional Undivided Interests of Certificates Outstanding have given any
direction, consent or waiver (a "Direction"), under this Pass Through Trust
Agreement, Certificates owned by either of the Companies, the Owner Trustee,
the Owner Participant or any Affiliate of any such Person shall be disregarded
and deemed not to be Outstanding under this Pass Through Trust Agreement for
purposes of any such determination. In determining whether the Pass Through
Trustee shall be protected in relying upon any such Direction, only
Certificates which the Pass Through Trustee knows to be so owned shall be so
disregarded. Notwithstanding the foregoing, (i) if any such Person owns 100%
of the Certificates Outstanding, such Certificates shall not be so disregarded
as aforesaid, and (ii) if any amount of Certificates so owned by any such
Person have been pledged in good faith, such Certificates shall not be
disregarded as aforesaid if the pledgee establishes to the satisfaction of the
Pass Through Trustee the pledgee's right so to act with respect to such
Certificates and that the pledgee is not either of the Companies, the Owner
Trustee, the Pass Through Trustee, the Owner Participant or any Affiliate of
any such Person.
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(d) Union, on behalf of the Companies, may at its option by delivery
of an Officer's Certificate to the Pass Through Trustee set a record date to
determine the Certificateholders entitled to give any consent, request, demand,
authorization, direction, notice, waiver or other Act. Notwithstanding Section
316(c) of the Trust Indenture Act, such record date shall be the record date
specified in such Officer's Certificate which shall be a date not more than 30
nor less than 15 days prior to the first solicitation of Certificateholders in
connection therewith. If such a record date is fixed, such consent, request,
demand, authorization, direction, notice, waiver or other Act may be given
before or after such record date, but only the Certificateholders of record at
the close of business on such record date shall be deemed to be
Certificateholders for the purposes of determining whether Certificateholders
of the requisite proportion of Outstanding Certificates have authorized or
agreed or consented to such consent, request, demand, authorization, direction,
notice, waiver or other Act, and for that purpose the Outstanding Certificates
shall be computed as of such record date; provided that no such consent,
request, demand, authorization, direction, notice, waiver or other act by the
Certificateholders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Agreement not later
than one year after the record date.
(e) Any direction, consent, waiver or other action by the
Certificateholder of any Certificate shall bind the Certificateholder of every
Certificate issued upon the transfer thereof or in exchange thereof or in lieu
thereof, whether or not notation of such action is made upon such Certificate.
(f) Except as otherwise provided in Section 1.4(c), Certificates
owned by or pledged to any Person shall have an equal and proportionate benefit
under the provisions of this Pass Through Trust Agreement, without preference,
priority, or distinction as among all of the Certificates.
ARTICLE II
ACQUISITION OF EQUIPMENT NOTES AND ETCs;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.1. Issuance of Certificates; Acquisition of Equipment Notes and
ETCs.
(a) Upon request of Union, the Pass Through Trustee shall execute,
authenticate and deliver Certificates with an aggregate principal amount
equalling the aggregate principal amount of the Equipment Notes and ETCs, as
the case may be, to be purchased by the Pass Through Trustee pursuant to the
Equipment Trust Agreements, this Pass Through Trust Agreement and the
Participation Agreement and evidencing the entire ownership of the Pass Through
Trust. The Pass Through Trustee, not in its individual capacity but solely as
Pass Through Trustee, shall issue and sell such Certificates, in authorized
denominations and in such Fractional Undivided Interests, so as to result in
the receipt of consideration in an amount equal to the aggregate principal
amount of the Equipment Notes and ETCs to be issued from time to time,
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as contemplated by the Participation Agreement and the Equipment Trust
Agreements, respectively, and, concurrently therewith, the Pass Through Trustee
shall purchase, in the case of the Equipment Notes pursuant to the terms and
conditions of the Participation Agreement, the Equipment Notes (except
Postponed Notes, if any) then issued and, in the case of the ETCs pursuant to
the terms and conditions of the Union Equipment Trust Agreement, the ETCs
(except Postponed Notes, if any) then issued, at a purchase price equal to the
amount of consideration received by the Pass Through Trustee with respect to
such Equipment Notes and ETCs, respectively. Upon the issuance after the
Issuance Date of any Equipment Notes and Union ETCs not previously purchased by
the Pass Through Trustee, the Pass Through Trustee shall purchase at such time
such Equipment Notes and Union ETCs at a purchase price equal to the amount of
consideration received by the Pass Through Trustee with respect to such
Equipment Notes and Union ETCs. Except as provided in Sections 3.4 and 3.5
hereof, the Pass Through Trustee shall not execute, authenticate or deliver
Certificates in excess of the aggregate amount specified in this paragraph.
The provisions of this Subsection (a) are subject to the provisions of
Subsections (b) and (c) below.
(b) If Union shall deliver to the Pass Through Trustee on or prior
to the Issuance Date a Postponement Notice, the Pass Through Trustee shall
postpone the purchase of the Equipment Notes or ETCs (the "Postponed Notes")
referred to in such Postponement Notice and shall promptly deposit into an
escrow account (the "Escrow Account") an amount equal to the purchase price of
such Postponed Notes (the "Escrowed Funds"). The Escrowed Funds so deposited
into the Escrow Account shall be invested by the Pass Through Trustee at the
written direction and risk of, and for the benefit of, Union in Specified
Investments maturing (i) no later than the Initial Cut-off Date or (ii) if
Union has given notice to the Pass Through Trustee that the Postponed Notes
will not be issued, on the next Special Distribution Date, if such investments
are reasonably available for purchase. The Pass Through Trustee shall make
withdrawals from the Escrow Account only as provided in this Pass Through Trust
Agreement. An account statement delivered by the Pass Through Trustee to Union
shall be deemed written confirmation by Union that the investment transactions
identified therein accurately reflect the investment directions given to the
Pass Through Trustee by Union, unless Union notifies the Pass Through Trustee
in writing to the contrary within thirty (30) days of receipt of such
statement.
The Pass Through Trustee shall hold all Specified Investments until
the maturity thereof and will not sell or otherwise transfer such Specified
Investments. If Specified Investments held in the Escrow Account mature prior
to the Initial Cut-off Date, any proceeds received on the maturity of such
Specified Investments (other than any earnings thereon) shall be reinvested by
the Pass Through Trustee at the written direction and risk of, and for the
benefit of, Union in Specified Investments maturing (i) no later than the
Initial Cut-off Date or (ii) if Union has given notice to the Pass Through
Trustee that the Postponed Notes will not be issued, on the next Special
Distribution Date, if such investments are reasonably available for purchase.
Any earnings on Specified Investments received from time to time by
the Pass Through Trustee shall be promptly distributed to Union to an account
specified in writing by Union.
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Union shall pay to the Pass Through Trustee for deposit to the Escrow Account
an amount equal to any losses on Specified Investments as incurred.
On or prior to the Initial Cut-off Date, upon the written request of
Union and the satisfaction of the closing conditions specified in the
Participation Agreement and the Union Equipment Trust Agreement, as the case
may be, the Pass Through Trustee shall purchase the Postponed Notes with the
Escrowed Funds. The purchase price shall equal the principal amount of such
Postponed Notes.
If any of the Postponed Notes will not be issued on or prior to the
Initial Cut-off Date for any reason, Union shall so notify the Pass Through
Trustee and Union shall pay to the Pass Through Trustee on ___________, 1996
for deposit in the Special Payments Account, in immediately available funds, an
amount equal to the interest that would have accrued on such Postponed Notes at
a rate or rates equal to the interest rate or rates applicable to the
Certificates issued under the Pass Through Trust from the Issuance Date to, but
not including, ___________, 1996 and the Pass Through Trustee shall transfer an
amount equal to that amount of Escrowed Funds that would have been used to
purchase such Postponed Notes and the amount paid by Union under this paragraph
to the Special Payments Account for distribution as a Special Payment in
accordance with the provisions hereof.
(c) Notwithstanding the foregoing Subsection (b), with respect to
amounts received by the Pass Through Trustee for the purchase of Equipment
Notes and Union ETCs to be issued after the Initial Cut-off Date pursuant to
the terms and conditions of the Participation Agreement or the Union Equipment
Trust Agreement, the Pass Through Trustee shall promptly deposit into the
Escrow Account an amount equal to the purchase price of such Equipment Notes or
Union ETCs. The Escrowed Funds so deposited into the Escrow Account shall be
invested by the Pass Through Trustee at the written direction and risk of, and
for the benefit of, Union in Specified Investments maturing (i) no later than
the Subsequent Cut-off Date or (ii) if Union has given notice to the Pass
Through Trustee that the aforementioned Equipment Notes or Union ETCs will not
be issued, on the next Special Distribution Date, if such investments are
reasonably available for purchase. The Pass Through Trustee shall make
withdrawals from the Escrow Account only as provided in this Pass Through Trust
Agreement. An account statement delivered by the Pass Through Trustee to Union
shall be deemed written confirmation by Union that the investment transactions
identified therein accurately reflect the investment directions given to the
Pass Through Trustee by Union, unless Union notifies the Pass Through Trustee
in writing to the contrary within thirty (30) days of receipt of such
statement.
The Pass Through Trustee shall hold all Specified Investments until
the maturity thereof and will not sell or otherwise transfer such Specified
Investments. If Specified Investments held in the Escrow Account mature prior
to the Subsequent Cut-off Date, any proceeds received on the maturity of such
Specified Investments (other than any earnings thereon) shall be reinvested by
the Pass Through Trustee at the written direction and risk of, and for the
benefit of, Union in Specified Investments maturing (i) no later than the
Subsequent Cut-off Date or (ii) if Union has given notice to the Pass Through
Trustee that the aforementioned Equipment Notes or Union
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ETCs will not be issued, on the next Special Distribution Date, if such
investments are reasonably available for purchase.
Any earnings on Specified Investments received from time to time by
the Pass Through Trustee shall be promptly distributed to Union to an account
specified in writing by Union. Union shall pay to the Pass Through Trustee for
deposit to the Escrow Account an amount equal to any losses on Specified
Investments as incurred.
On or prior to the Subsequent Cut-off Date, upon the written request
of Union and the satisfaction of the closing conditions specified in the
Participation Agreement and the Union Equipment Trust Agreement, the Pass
Through Trustee shall purchase the applicable Equipment Notes and Union ETCs
with the Escrowed Funds. The purchase price shall equal the principal amount
of such Postponed Notes.
If any of the applicable Equipment Notes or Union ETCs will not be
issued on or prior to the Subsequent Cut-off Date for any reason, Union shall
so notify the Pass Through Trustee and Union shall pay to the Pass Through
Trustee on December 30, 1996 for deposit in the Special Payments Account, in
immediately available funds, an amount equal to the interest that would have
accrued on such Equipment Notes or Union ETCs, as the case may be, at a rate or
rates equal to the interest rate or rates applicable to the Certificates issued
under the Pass Through Trust from the Issuance Date to, but not including,
December 30, 1996 and the Pass Through Trustee shall transfer an amount equal
to that amount of Escrowed Funds that would have been used to purchase such
Equipment Notes or Union ETCs and the amount paid by Union under this paragraph
to the Special Payments Account for distribution as a Special Payment in
accordance with the provisions hereof.
SECTION 2.2. Declaration of Trust; Acceptance By Pass Through
Trustee. The Pass Through Trustee, upon the execution and delivery of this
Pass Through Trust Agreement, acknowledges its acceptance of all right, title,
and interest in and to the Equipment Notes and the ETCs, as the case may be,
acquired pursuant to Section 2.1 hereof and, in the case of the Equipment
Notes, the Participation Agreement, and declares that the Pass Through Trustee
holds and will hold such right, title, and interest, together with all other
property constituting the Trust Property, for the benefit of all present and
future Certificateholders, upon the trusts herein set forth. By its payment
for and acceptance of each Certificate issued to it hereunder, each initial
Certificateholder as grantor of the Trust thereby joins in the creation and
declaration of the Trust.
SECTION 2.3. Limitation of Powers. The Pass Through Trust is
constituted solely for the purpose of making the investment in the Equipment
Notes and the ETCs, and, except as set forth herein, the Pass Through Trustee
is not authorized or empowered to acquire any other investments or engage in
any other activities and, in particular, the Pass Through Trustee is not
authorized or empowered to do anything that would cause the Pass Through Trust
to fail to qualify as a "grantor trust" for federal income tax purposes
(including as subject to this restriction, acquiring any Equipment (as defined
in the Indenture) by bidding the Equipment
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Notes, the ETCs or otherwise, or taking any action with respect to any such
Equipment once acquired).
SECTION 2.4. Sale of Equipment Notes Under Certain Circumstances. If
Union elects, in accordance with Section 10.2 of the Participation Agreement,
to refund or refinance Equipment Notes, the Pass Through Trustee shall, upon
satisfaction of the conditions set forth in Section 10.2 of the Participation
Agreement, transfer such Equipment Notes to the Person designated by Union and
will take any other action reasonably required to effect such refunding.
ARTICLE III
THE CERTIFICATES
SECTION 3.1. Form, Denomination and Execution of Certificates. The
Certificates shall be issued in fully registered form without coupons and shall
be substantially in the form attached hereto as Exhibit A, together with the
Guarantee of Union attached thereto in substantially the form attached hereto
as Exhibit B, with such omissions, variations and insertions as are permitted
by this Pass Through Trust Agreement, and may have such letters, numbers or
other marks of identification and such legends or endorsements printed,
lithographed, typewritten or engraved thereon, as may be required to comply
with the rules of any securities exchange on which the Certificates may be
listed or to conform to any usage in respect thereof, or as may, consistently
herewith, be prescribed by the Pass Through Trustee or by the officer executing
such Certificates, such determination by such officer to be evidenced by his or
her signing of the Certificates.
Except as provided in Section 3.9, the definitive Certificates (the
"Registered Certificates") shall be printed, lithographed, typewritten or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Certificates may be listed, all as determined by the officer executing such
Certificates, as evidenced by his execution of such Certificates.
The Certificates shall be issued in minimum denominations of $1,000 or
any integral multiple of $1,000 in excess thereof, except that one Certificate
may be issued in a denomination of less than $1,000 (the "De Minimis
Certificate").
The Certificates shall be executed on behalf of the Pass Through
Trustee by manual or facsimile signature of a Responsible Officer of the Pass
Through Trustee. Certificates bearing the manual or facsimile signature of an
individual who was, at the time when such signature was affixed, authorized to
sign on behalf of the Pass Through Trustee shall be valid and binding
obligations of the Pass Through Trustee, notwithstanding that such individual
has ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such office at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Pass Through Trust
Agreement, or be valid for any purpose, unless there appears on such
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Certificate a certificate of authentication substantially in the form set forth
in Exhibit A hereto executed by the Pass Through Trustee by manual signature,
and such certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication.
SECTION 3.2. Authentication of Certificates. The Pass Through
Trustee shall duly authenticate and deliver Certificates in authorized
denominations equalling in the aggregate the aggregate principal amount of the
Equipment Notes and the ETCs, as the case may be, to be purchased by the Pass
Through Trustee pursuant to the Equipment Trust Agreements, this Pass Through
Trust Agreement and the Participation Agreement, and evidencing the entire
ownership of the Trust.
SECTION 3.3. Temporary Certificates. Pending the preparation of
Registered Certificates, the Pass Through Trustee may execute, authenticate and
deliver temporary Certificates which are printed, lithographed, typewritten, or
otherwise produced, in any denomination, containing substantially the same
terms and provisions as set forth in Exhibit A, except for such appropriate
insertions, omissions, substitutions and other variations relating to their
temporary nature as the officer executing such temporary Certificates may
determine, as evidenced by their execution of such temporary Certificates.
The Companies will cause Registered Certificates to be prepared
without unreasonable delay after such Registered Certificates are required to
be issued pursuant to Section 3.9(d). After the preparation of Registered
Certificates, the temporary Certificates shall be exchangeable for Registered
Certificates upon surrender of the temporary Certificates at the Corporate
Trust Office of the Pass Through Trustee, or at the office or agency of the
Pass Through Trustee maintained in accordance with Section 7.12, without charge
to the holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Pass Through Trustee shall execute, authenticate and deliver
in exchange therefor Registered Certificates of authorized denominations of a
like aggregate Fractional Undivided Interest; shall destroy any such temporary
Certificate(s) theretofore delivered and exchanged; and shall certify, in
writing, to the Companies such destruction. Until so exchanged, such temporary
Certificates shall in all respects be entitled to the same benefits under this
Pass Through Trust Agreement as Registered Certificates.
SECTION 3.4. Registration of Transfer and Exchange of Certificates.
The Pass Through Trustee shall cause to be kept at the Corporate Trust Office
or the office or agency to be maintained by it in accordance with the
provisions of Section 7.12 a register (the "Register") in which, subject to
such reasonable regulations as it may prescribe, the Pass Through Trustee shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Pass Through Trustee shall initially be
the registrar (the "Registrar") for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided.
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Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office or such other office or agency, the Pass Through Trustee
shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Fractional Undivided Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of authorized denominations of a like aggregate
Fractional Undivided Interest, upon surrender of the Certificates to be
exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Pass Through Trustee shall execute, authenticate
and deliver the Certificates that the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Pass Through Trustee
and the Registrar duly executed by the Certificateholder thereof or its
attorney duly authorized in writing.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Pass Through
Trustee shall require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
All Certificates surrendered for registration of transfer and exchange
shall be canceled and subsequently destroyed by the Pass Through Trustee. The
Pass Through Trustee shall provide the Companies with written certification as
to the destruction of all such Certificates.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Registrar, or the Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (b) there is delivered to the Registrar and the Pass Through
Trustee such security, indemnity or bond, as may be required by them to save
each of them harmless, then, in the absence of notice to the Registrar or the
Pass Through Trustee that such Certificate has been acquired by a bona fide
purchaser, the Pass Through Trustee shall execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like Fractional Undivided Interest with the
same final Regular Distribution Date. In connection with the issuance of any
new Certificate under this Section 3.5, the Pass Through Trustee shall require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Pass Through Trustee and the Registrar) connected
therewith. Any duplicate Certificate issued pursuant to this Section 3.5 shall
constitute conclusive evidence of the appropriate Fractional Undivided Interest
in the Pass Through Trust, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
SECTION 3.6. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Pass Through Trustee, the
Registrar, and any Paying Agent of the Pass Through Trustee may treat the
person in whose name any Certificate is registered as the
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owner of such Certificate for the purpose of receiving distributions pursuant
to Section 4.2 and for all other purposes whatsoever, and neither the Pass
Through Trustee, the Registrar, nor any Paying Agent of the Pass Through
Trustee shall be affected by any notice to the contrary.
SECTION 3.7. Cancellation. All Certificates surrendered for payment
or transfer or exchange shall, if surrendered to any Person party hereto other
than the Registrar, be delivered to the Registrar for cancellation. No
Certificates shall be authenticated in lieu of or in exchange for any
Certificates canceled as provided in this Section, except as expressly
permitted by this Pass Through Trust Agreement. All canceled Certificates held
by the Registrar shall be destroyed and a certification of their destruction
delivered to the Pass Through Trustee and the Companies.
SECTION 3.8. Limitation of Liability for Payments. All payments or
distributions made to Certificateholders under this Pass Through Trust
Agreement shall be made only from the Trust Property and only to the extent
that the Pass Through Trustee shall have sufficient income or proceeds from the
Trust Property to make such payments in accordance with the terms of Article IV
of this Pass Through Trust Agreement. Each Certificateholder, by its
acceptance of a Certificate, agrees that it will look solely to the income and
proceeds from the Trust Property to the extent available for distribution to
the Certificateholder thereof as provided in this Pass Through Trust Agreement.
SECTION 3.9. Book-Entry and Registered Certificates.
(a) Except for the De Minimis Certificate (if any), the Certificates
may be issued in the form of one or more typewritten Certificates representing
the Book-Entry Certificates, to be delivered to The Depository Trust Company,
the initial Clearing Agency, by, or on behalf of, the Certificate Owners. In
such case, the Certificates delivered to The Depository Trust Company shall
initially be registered on the Register in the name of Cede & Co., the nominee
of the initial Clearing Agency, and no Certificate Owner will receive a
Registered Certificate representing such Certificate Owner's interest in the
Certificates, except as provided above and in Subsection (d) below. Except
with respect to the De Minimis Certificate (if any), unless and until
Registered Certificates have been issued pursuant to Subsection (d) below:
(i) the provisions of this Section 3.9 shall be in full force
and effect;
(ii) the Companies, the Paying Agent, the Registrar and the
Pass Through Trustee may deal with the Clearing Agency for all
purposes (including the making of distributions on the Certificates)
as the authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.9
conflict with any other provisions of this Pass Through Trust
Agreement, the provisions of this Section 3.9 shall control;
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(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established
by law and agreements between such Certificate Owners and the Clearing
Agency Participants; and until Registered Certificates are issued
pursuant to Subsection (d) below, the Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal and interest and
Make-Whole Amount, if any, on the Certificates to such Clearing Agency
Participants; and
(v) whenever this Pass Through Trust Agreement requires or
permits actions to be taken based upon instructions or directions of
Certificateholders holding Certificates evidencing a specified
percentage of the Fractional Undivided Interests, the Clearing Agency
shall be deemed to represent such percentage only to the extent that
it has received instructions to such effect from Certificate Owners
and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in
Certificates and has delivered such instructions to the Pass
Through Trustee. The Pass Through Trustee shall have no obligation to
determine whether the Clearing Agency has in fact received any such
instructions.
(b) Except with respect to the De Minimis Certificate (if any),
whenever notice or other communication to the Certificateholders is required
under this Pass Through Trust Agreement, unless and until Registered
Certificates shall have been issued pursuant to Subsection (d) below, the Pass
Through Trustee shall give all such notices and communications specified herein
to be given to Certificateholders to the Clearing Agency and/or the Clearing
Agency Participants, and shall make available additional copies as requested by
such Clearing Agency Participants.
(c) Unless and until Registered Certificates are issued pursuant to
Subsection (d) below, on the Record Date prior to each Regular Distribution
Date and Special Distribution Date, the Pass Through Trustee will request from
the Clearing Agency a Securities Position Listing setting forth the names of
all Clearing Agency Participants reflected on the Clearing Agency's books as
holding interests in the Certificates on such Record Date. The Pass Through
Trustee will mail to each such Clearing Agency Participant the statements
described in Section 4.3 hereof.
(d) If (i) Union, on behalf of the Companies, advises the Pass
Through Trustee in writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities and the Pass Through Trustee or
Union, on behalf of the Companies is unable to locate a qualified successor,
(ii) Union, on behalf of the Companies, at its option, advises the Pass Through
Trustee in writing that it elects to terminate the book-entry system through
the Clearing Agency or (iii) after the occurrence of an Event of Default,
Certificate Owners of Book-Entry Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Pass Through
Trust, by act of such Certificate Owners delivered to the Companies, and the
Pass Through Trustee, advise the Pass Through Trustee and the Clearing Agency
through the Clearing Agency Participants in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best
interests of the Certificate Owners, then the Pass Through Trustee shall notify
all Certificate Owners, through the Clearing Agency,
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of the occurrence of any such event and of the availability of Registered
Certificates. Upon surrender to the Pass Through Trustee of all the
Certificates held by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency for registration of Registered
Certificates in the names of Certificate Owners, the Pass Through Trustee shall
issue and deliver the Registered Certificates in accordance with the
instructions of the Clearing Agency. Upon the issuance of Registered
Certificates pursuant to this Section 3.9(d), the Record Date with respect to
such Registered Certificates shall be the fifth Business Day preceding a
Regular Distribution Date or Special Distribution Date, as applicable. Neither
the Companies, the Registrar, the Paying Agent nor the Pass Through Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such registration
instructions. Upon the issuance of Registered Certificates, the Pass Through
Trustee shall recognize the Persons in whose name the Registered Certificates
are registered as the Certificateholders hereunder. Neither the Companies nor
the Pass Through Trustee shall be liable if the Pass Through Trustee or Union,
on behalf of the Companies is unable to locate a qualified successor Clearing
Agency.
(e) The Pass Through Trustee shall enter into the Letter of
Representations and fulfill its responsibilities thereunder.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
SECTION 4.1. Certificate Account and Special Payments Account.
(a) The Pass Through Trustee shall establish and maintain on behalf
of the Certificateholders the Certificate Account as one or more accounts,
which shall be non-interest bearing accounts. The Pass Through Trustee shall
hold the Certificate Account in trust for the benefit of the
Certificateholders, and shall make or permit withdrawals therefrom only as
provided in this Pass Through Trust Agreement. On each day when a Scheduled
Payment is made under the Indenture or an Equipment Trust Agreement to the Pass
Through Trustee, as holder of either the Equipment Notes or the ETCs issued
under the Indenture or such Equipment Trust Agreement, as the case may be, the
Pass Through Trustee upon receipt shall immediately deposit the aggregate
amount of such Scheduled Payment in the Certificate Account.
(b) The Pass Through Trustee shall establish and maintain on behalf
of the Certificateholders the Special Payments Account as one or more accounts,
which shall be non-interest bearing except as provided in Section 4.4. The
Pass Through Trustee shall hold the Special Payments Account in trust for the
benefit of the Certificateholders, and shall make or permit withdrawals
therefrom only as provided in this Pass Through Trust Agreement. On each day
when one or more Special Payments (other than a Special Payment that represents
the proceeds of any sale pursuant to Article VI by the Pass Through Trustee of
an Equipment Note)
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are made under an Equipment Trust Agreement or the Indenture to the Pass
Through Trustee, as holder of either the Equipment Notes or the ETCs issued
under the Indenture or such Equipment Trust Agreement, as the case may be, the
Pass Through Trustee upon receipt shall immediately deposit the aggregate
amounts of such Special Payments in the Special Payments Account. On the day
Union makes the payment to the Pass Through Trustee described in the fifth
paragraph of Section 2.1(b), the Pass Through Trustee upon receipt shall
immediately deposit the aggregate amount thereof in the Certificate Account.
Upon the sale of any Equipment Note or ETC by the Pass Through Trustee pursuant
to Article VI and the realization of any proceeds thereof, the Pass Through
Trustee shall deposit the aggregate amount of such proceeds as a Special
Payment in the Special Payments Account.
(c) The Pass Through Trustee shall present to the Indenture Trustee
to which an Equipment Note relates such Equipment Note on the date of its
stated final maturity, or in the case of any Equipment Note which is to be
prepaid in whole pursuant to the relevant Indenture, on the applicable
prepayment date under the Indenture.
(d) The Pass Through Trustee shall present to the Equipment Trust
Trustee to which an ETC relates such ETC on the date of its stated final
maturity.
SECTION 4.2. Distribution from Certificate Account and Special
Payments Account.
(a) On each Regular Distribution Date or as soon thereafter as the
Pass Through Trustee has confirmed receipt of the payment of the Scheduled
Payments due with respect to the Equipment Notes or ETCs on such date, the Pass
Through Trustee shall distribute to the Certificateholders of the Pass Through
Trust out of the Certificate Account the entire amount deposited therein
pursuant to Section 4.1(a). There shall be so distributed to each
Certificateholder of record on the Record Date with respect to such Regular
Distribution Date (other than as provided in Section 11.1 concerning the final
distribution) by check mailed to such Certificateholder at the address
appearing in the Register, such Certificateholder's pro rata share (based on
the aggregate Fractional Undivided Interest held by such Certificateholder) of
the aggregate amount in the Certificate Account; provided, however, that prior
to the time that any Certificates are issued in the form of Registered
Certificates, each Certificateholder may request in writing that such amounts
be distributed by wire transfer of immediately available funds to an account
specified by such Certificateholder. If a Scheduled Payment is not received by
the Pass Through Trustee on a Regular Distribution Date but is received on a
later date, it shall be distributed on the date received in the manner
described in the preceding sentence to the Certificateholders of record on the
Record Date with respect to such Regular Distribution Date.
(b) On each Special Distribution Date with respect to any Special
Payment or as soon thereafter as the Pass Through Trustee has confirmed receipt
of the Special Payments due on the Equipment Notes or ETCs or realized upon the
sale of any Equipment Note or ETCs, the Pass Through Trustee shall distribute
out of the Special Payments Account the entire amount deposited therein
pursuant to Section 4.1(b) of such Special Payment. There shall be so
distributed to each Certificateholder of record on the Record Date with respect
to such Special Distribution Date (other than as provided in Section 11.1
concerning the final distribution) by
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check mailed to such Certificateholder at the address appearing in the
Register, such Certificateholder's pro rata share (based on the aggregate
Fractional Undivided Interest held by such Certificateholder) of the aggregate
amount in the Special Payments Account on account of such Special Payment;
provided, however, that prior to the time that any Certificates are issued in
the form of Registered Certificates, each Certificateholder may request in
writing that such amount be distributed by wire transfer of immediately
available funds to an account specified by such Certificateholder.
(c) The Pass Through Trustee shall at the expense of the Companies
cause notice of each Special Payment to be mailed to each Certificateholder at
his address as it appears in the Register. In the case of a Special Payment
other than pursuant to the fifth paragraph of Section 2.1(b) or the fifth
paragraph of Section 2.1(c), such notice shall be mailed not less than 15 days
prior to the date any such Special Payment is scheduled to be distributed. In
the case of a Special Payment pursuant to the fifth paragraph of Section 2.1(b)
or the fifth paragraph of Section 2.1(c) such notice should be given as
promptly as practicable after the receipt of notice from the Companies that
Postponed Notes or the Equipment Notes or Union ETCs referred to in Section
2.1(c) will not be issued. In the case of any other Special Payments, such
notice shall be mailed as soon as practicable after the Pass Through Trustee
has confirmed that it has received funds for such Special Payment. Notices
mailed by the Pass Through Trustee shall set forth:
(i) the Special Distribution Date and the Record Date
therefor (except as otherwise provided in Section 11.1),
(ii) the amount of the Special Payment for each $1,000 face
amount Certificate (taking into account any payment to be made by the
Companies pursuant to Section 2.1(b) or (c), as applicable) and the
amount thereof constituting principal, Make-Whole Amount, if any, and
interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a
Regular Distribution Date, the total amount to be received on such
date for each $1,000 face amount Certificate.
If the amount of Make-Whole Amount, if any, payable upon the
prepayment of an Equipment Note has not been calculated at the time that the
Pass Through Trustee mails notice of a Special Payment, it shall be sufficient
if the notice sets forth the other amounts to be distributed and states that
any Make-Whole Amount received will also be distributed.
If any prepayment of the Equipment Notes is canceled, the Pass Through
Trustee, as soon as possible after learning thereof, shall cause notice thereof
to be mailed to each Certificateholder at its address as it appears on the
Register.
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SECTION 4.3. Statements to Certificateholders.
(a) On each Regular Distribution Date and Special Distribution Date,
the Pass Through Trustee will include with each distribution of a Scheduled
Payment or a Special Payment to Certificateholders a statement, giving effect
to such distribution to be made on such Regular Distribution Date or Special
Distribution Date, as the case may be, setting forth the following information
(for each $1,000 face amount Certificate as to (i) and (ii) below):
(i) The amount of such distribution allocable to principal
and the amount allocable to Make-Whole Amount, if any;
(ii) The amount of such distribution allocable to interest;
and
(iii) The Pool Balance and the Pool Factor.
(b) Within a reasonable period of time after the end of each calendar
year but not later than the latest date permitted by law, the Pass Through
Trustee shall furnish to each Person who at any time during such calendar year
was a Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i) and (a)(ii) of this Section 4.3 with
respect to the Pass Through Trust for such calendar year or, in the event such
Person was a Certificateholder of record during a portion of such calendar
year, for the applicable portion of such year, and such other items as are
readily available to the Pass Through Trustee and which a Certificateholder
shall reasonably request as necessary for the purpose of such
Certificateholder's preparation of its Federal income tax returns. Such report
and such other items shall be prepared on the basis of information supplied to
the Pass Through Trustee by the Clearing Agency Participants and shall be
delivered by the Pass Through Trustee to such Clearing Agency Participants to
be available for forwarding by such Clearing Agency Participants to Certificate
Owners.
SECTION 4.4. Investment of Special Payment Money. Any money received
by the Pass Through Trustee pursuant to Section 4.1(b) representing a Special
Payment which is not to be promptly distributed shall, to the extent
practicable, be invested in Permitted Investments by the Pass Through Trustee
pending distribution of such Special Payment pursuant to Section 4.2. Any
investment made pursuant to this Section 4.4 shall be in such Permitted
Investments having maturities not later than the date that such moneys are
required to be used to make the payment required under Section 4.2 on the
applicable Special Distribution Date and the Pass Through Trustee shall hold
any such Permitted Investments until maturity. The Pass Through Trustee shall
have no liability with respect to any investment made pursuant to this Section
4.4, other than by reason of the willful misconduct or gross negligence of the
Pass Through Trustee. All income and earnings from such investments shall be
distributed to the Certificateholders on such Special Distribution Date as part
of such Special Payment.
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ARTICLE V
THE COMPANIES
SECTION 5.1. Maintenance of Corporate Existence. Each of the
Companies, at its own cost and expense, will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate
existence, rights and franchises, except as otherwise specifically permitted in
Section 5.2; provided, however, that neither of the Companies shall be required
to preserve any right or franchise if it shall determine that the preservation
thereof is no longer desirable in the conduct of its business.
SECTION 5.2. Consolidation, Merger or Sale of Assets Permitted.
(a) Union shall not consolidate with or merge into any other
corporation or sell or convey all or substantially all of its assets to any
Person, nor shall Union permit Procor to consolidate with or merge into any
other corporation or sell or convey all or substantially all of its assets to
any Person (other than an Affiliate of Union), unless the corporation formed by
such consolidation or into which Union or Procor, as applicable, is merged or
the Person which acquires by sale or conveyance all or substantially all of the
assets of Union or Procor, as applicable, shall be a corporation organized and
existing under the laws of the United States of America or any State or the
District of Columbia or, in the case of Procor any province of Canada, and
shall execute and deliver to the Pass Through Trustee an agreement in form
reasonably satisfactory to the Pass Through Trustee containing an assumption by
such successor corporation of the due and punctual performance and observance
of each covenant and condition of this Agreement to which Union or Procor, as
applicable, is a party.
(b) Immediately after giving effect to such transaction, no Event of
Default, no Indenture Default, no Equipment Trust Default, and no event that,
after notice or lapse of time, or both, would become an Event of Default, an
Indenture Default or an Equipment Trust Default, shall have occurred and be
continuing.
Upon any consolidation or merger, or any sale or conveyance, of all or
substantially all of the assets of Union or Procor, as the case may be, the
successor corporation formed by such consolidation or into which Union or
Procor, as the case may be, is merged or to which such sale or conveyance is
made shall succeed to, and be substituted for, and may exercise every right and
power of, Union or Procor, as the case may be, under this Agreement with the
same effect as if such successor corporation had been named as Union or Procor,
as the case may be, herein. No such sale or conveyance of all or substantially
all of the assets of Union or Procor, as the case may be, as an entirety shall
have the effect of releasing Union or Procor, as the case may be, or any
successor corporation which shall theretofore have become such from its
liability hereunder.
(c) The Pass Through Trustee may accept an Officer's Certificate and
an Opinion of Counsel of Union, on behalf of the Companies, as conclusive
evidence that any such
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consolidation, merger, sale, lease or conveyance, and any such assumption
complies with the provisions of this Section 5.2.
ARTICLE VI
DEFAULT
SECTION 6.1. Events of Default. If an Indenture Default under the
Indenture or an Equipment Trust Default under either Equipment Trust Agreement
(an "Event of Default") shall occur and be continuing, then, and in each and
every case, so long as such Event of Default shall be continuing, the Pass
Through Trustee may vote all of the Equipment Notes issued under the Indenture
or ETCs issued under either of the Equipment Trust Agreements, as the case may
be, to which such Event of Default relates that are held in the Trust Property,
and upon the direction of the Certificateholders holding Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Pass Through Trust, the Trustee shall vote a corresponding
majority of such Equipment Notes or such ETCs, as the case may be, in favor of
directing the Indenture Trustee under the Indenture or the Equipment Trust
Trustee under such Equipment Trust Agreement, as the case may be, to declare
the unpaid principal amount of all Equipment Notes then outstanding under the
Indenture or the ETCs then outstanding under such Equipment Trustee Agreement,
as the case may be, and accrued interest thereon to be due and payable under,
and in accordance with the provisions of, the Indenture or such Equipment Trust
Agreement, as the case may be. In addition, if an Indenture Default shall have
occurred and be continuing under the Indenture or an Equipment Trust Default
shall have occurred and be continuing under either Equipment Trust Agreement,
the Pass Through Trustee may, and upon the direction of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Pass Through Trust, shall, vote all of
the Equipment Notes issued under such Indenture or the ETCs issued under such
Equipment Trust Agreement, as the case may be, to which such Event of Default
relates that are held in the Pass Through Trust to direct such Indenture
Trustee or such Equipment Trust Trustee, as the case may be, regarding the
exercise of remedies provided in Article V of the Indenture or Article V of
such Equipment Trust Agreement, as the case may be. In addition, if an
Equipment Trust Default has occurred and is continuing under the Procor ETC,
the Pass Through Trustee in its own name, or as trustee of an express trust, or
as attorney-in-fact for the Certificateholders, may, and upon direction of
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Pass Through
Trust, shall, pursue such remedies as available to the Pass Through Trustee
against Union under the Guarantee.
In addition, after an Event of Default shall have occurred and be
continuing with respect to any Equipment Notes or ETCs, the Pass Through
Trustee may in its discretion, and upon the direction of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Pass Through Trust shall, by such
officer or agent as it may appoint, sell, convey, transfer and deliver (to the
extent permitted by
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applicable law) all or part of such Equipment Notes or ETCs, without recourse
to or warranty by the Pass Through Trustee or any Certificateholder, to any
Person. In any such case, the Pass Through Trustee shall sell, assign,
contract to sell or otherwise dispose of and deliver such Equipment Note or
Equipment Notes or ETC or ETCs in one or more parcels at public or private sale
or sales, at any location or locations at the option of the Pass Through
Trustee, all upon such terms and conditions as it may reasonably deem advisable
and at such prices as it may reasonably deem advisable, for cash. If the Pass
Through Trustee so decides or is required to sell or otherwise dispose of any
Equipment Note or ETC pursuant to this Section, the Pass Through Trustee shall
take such of the actions described above as it may reasonably deem most
effectual to complete the sale or other disposition of such Equipment Note or
ETC, so as to provide for the payment in full of all amounts due on the
Certificates. Notwithstanding the foregoing, any action taken by the Pass
Through Trustee under this Section shall not, in the reasonable judgment of the
Pass Through Trustee, be adverse to the best interests of the
Certificateholders and the Pass Through Trustee shall give written notice to
Procor of its proposed sale of the Procor ETC or any part thereof at least 20
days prior to the proposed sale. Such notice shall constitute an offer to
Procor to sell the Procor ETC or such part thereof to Procor for a price equal
to the outstanding principal amount thereof, plus all accrued and unpaid
interest thereon, including interest at the Penalty Rate (as defined in the
Procor Equipment Trust Agreement), if any, plus all other amounts due and owing
thereunder and the costs and expenses incurred by the Pass Through Trustee, the
Certificateholders and the Certificate Owners in connection with the collection
thereof and enforcement of remedies relating thereto. If prior to the
expiration of such 20 day period, Procor pays the purchase price aforesaid to
the Pass Through Trustee, the Pass Through Trustee shall transfer all of its
right, title and interest in and to the Procor ETC or such part thereof to
Procor. If Procor does not pay such purchase price to the Pass Through Trustee
prior to the expiration of such 20 day period, the Pass Through Trustee shall
be free to sell the Procor ETC under this paragraph to any Person. The Pass
Through Trustee shall be required to give no more than one notice under this
paragraph and Procor acknowledges that the failure of any proposed sale of the
Procor ETC or part thereof shall not entitle Procor to receive any additional
notice hereunder.
If, with respect to any Equipment Notes, an Indenture Default shall
have occurred and be continuing and the Owner Trustee, which is a party to the
Indenture has elected, in accordance with the provisions of Section 5.04(b) of
the Indenture, to purchase all of the then outstanding Equipment Notes issued
under the Indenture at a price equal to the aggregate unpaid principal amount
thereof, together with accrued interest thereon to the date of such purchase,
then the Pass Through Trustee shall sell to such Owner Trustee all of the
Equipment Notes issued under the Indenture held in the Pass Through Trust at a
price equal to the aggregate unpaid principal amount thereof, together with
accrued interest thereon to the date of such sale.
In no event shall (i) an Indenture Default constitute an Equipment
Trust Default or (ii) an Equipment Trust Default constitute an Indenture
Default.
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SECTION 6.2. Incidents of Sale of Equipment Notes and ETCs. Upon any
sale of all or any part of the Equipment Notes or ETCs, as the case may be,
made either under the power of sale given under this Pass Through Trust
Agreement or otherwise for the enforcement of this Pass Through Trust
Agreement, the following shall be applicable:
(i) Certificateholders and Pass Through Trustee May Purchase
Equipment Notes or ETCs. Any Certificateholder, the Pass Through
Trustee in its individual or any other capacity or any other Person
may bid for and purchase any of the Equipment Notes or ETCs, as the
case may be, and upon compliance with the terms of sale, may hold,
retain, possess and dispose of such Equipment Notes or ETCs, as the
case may be, in their own absolute right without further
accountability; provided, however, that this provision shall not apply
to the sale of Equipment Notes or ETCs, as the case may be, pursuant
to the last paragraph of Section 6.1.
(ii) Receipt of Pass Through Trustee Shall Discharge
Purchaser. The receipt of the Pass Through Trustee or of the officer
making such sale shall be a sufficient discharge to any purchaser for
his purchase money, and, after paying such purchase money and
receiving such receipt, such purchaser or its personal representative
or assigns shall not be obliged to see to the application of such
purchase money, or be in any way answerable for any loss,
misapplication or non-application thereof.
(iii) Application of Moneys Received Upon Sale. Any moneys
collected by the Pass Through Trustee upon any sale made either under
the power of sale given by this Pass Through Trust Agreement or
otherwise for the enforcement of this Pass Through Trust Agreement,
shall be applied as provided in Section 4.2(b).
SECTION 6.3. Judicial Proceedings Instituted by Pass Through Trustee.
(a) Pass Through Trustee May Bring Suit. If there shall be a failure
to make payment of the principal of, Make-Whole Amount, if any, or interest on
any Equipment Note or ETC, or if there shall be any failure to pay Rent (as
defined in the Lease) under the Lease when due and payable, then the Pass
Through Trustee, in its own name, and as trustee of an express trust, as holder
of such Equipment Notes or ETC, shall be, to the extent permitted by and in
accordance with the terms of the Note Documents or ETC Documents, entitled and
empowered to institute any suits, actions or proceedings at law, in equity or
otherwise, for the collection of the sums so due and unpaid on such Equipment
Notes or ETCs or under the Lease and may prosecute any such claim or proceeding
to judgment or final decree with respect to the whole amount of any such sums
so due and unpaid.
(b) Pass Through Trustee May File Proofs of Claim; Appointment of
Pass Through Trustee as Attorney-in-Fact in Judicial Proceedings. The Pass
Through Trustee in its own name, or as trustee of an express trust, or as
attorney-in- fact for the Certificateholders, or in any one or more of such
capacities (irrespective of whether distributions on the Certificates shall
then be due and payable, or the payment of the principal on the Equipment Notes
or ETCs, as the
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case may be, shall then be due and payable, as therein expressed or by
declaration or otherwise and irrespective of whether the Pass Through Trustee
shall have made any demand to the Indenture Trustee for the payment of overdue
principal, Make-Whole Amount (if any) or interest on Equipment Notes or ETCs,
as the case may be), shall be entitled and empowered to file such proofs of
claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Pass Through Trustee and of the Certificateholders
allowed in any receivership, insolvency, bankruptcy, liquidation, readjustment,
reorganization or any other judicial proceedings relative to the Companies, the
Owner Trustee, the Owner Participant, the Equipment Trust Trustees or their
respective creditors or property. Any receiver, assignee, trustee, liquidator,
sequestrator (or similar official) in any judicial proceeding is hereby
authorized by each Certificateholder to make payments in respect of such claim
to the Pass Through Trustee and, in the event that the Pass Through Trustee
shall consent to the making of such payments directly to the
Certificateholders, to pay to the Pass Through Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the Pass
Through Trustee, its agents and counsel. Nothing contained in this Pass
Through Trust Agreement shall be deemed to give to the Pass Through Trustee any
right to accept or consent to any plan of reorganization or otherwise by action
of any character in any such proceeding to waive of change in any way any right
of any Certificateholder.
SECTION 6.4. Control by Certificateholders. Subject to Section 2.3,
the Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Pass Through
Trust shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Pass Through Trustee, or
exercising any trust or power conferred on the Pass Through Trustee under this
Pass Through Trust Agreement, including any right of the Pass Through Trustee
as holder of the Equipment Notes or ETCs, provided that:
(i) such direction shall not be in conflict with any rule of
law or with this Pass Through Trust Agreement and would not involve
the Pass Through Trustee in personal liability or expense,
(ii) the Pass Through Trustee shall not determine that the
action so directed would be unjustly prejudicial to the
Certificateholders not taking part in such direction,
(iii) the Pass Through Trustee may take any other action
deemed proper by the Pass Through Trustee which is not inconsistent
with such direction, and
(iv) if an Indenture Default under the Indenture or an
Equipment Trust Default under either Equipment Trust Agreement shall
have occurred and be continuing, such direction shall not obligate the
Trustee to vote more than a corresponding majority of the related
Equipment Notes or ETCs, as the case may be, held by the Trust in
favor of directing any action by the Indenture Trustee with respect to
such Indenture Default or by the Equipment Trust Trustee with respect
to such Equipment Trust Default, as the case may be.
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SECTION 6.5. Waiver of Past Defaults. The Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less
than a majority in interest in the Pass Through Trust may on behalf of all of
the Certificateholders waive any past Event of Default hereunder and its
consequences or may instruct the Pass Through Trustee to waive any past default
under the Indenture, either Equipment Trust Agreement or this Agreement and its
consequences, except a default (i) in the payment of the principal of,
Make-Whole Amount, if any, or interest on any Equipment Notes or ETCs, as the
case may be, or (ii) in respect of a covenant or provision hereof which under
Article IX hereof cannot be modified or amended without the consent of the
Certificateholder holding each Outstanding Certificate affected.
Upon any such waiver, such default shall cease to exist with respect
to this Pass Through Trust Agreement, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this Pass
Through Trust Agreement and any direction given by the Pass Through Trustee on
behalf of such Certificateholders to the Indenture Trustee or Equipment Trust
Trustee, as the case may be, shall be annulled with respect thereto; but no
such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon. Upon any such waiver, the Pass Through
Trustee shall vote all the Equipment Notes issued under the Indenture or ETCs
issued under the relevant Equipment Trust Agreement, as the case may be, to
waive the corresponding Default.
SECTION 6.6. Undertaking to Pay Court Costs. All parties to this
Pass Through Trust Agreement, and each Certificateholder by his acceptance of a
Certificate, shall be deemed to have agreed that any court may in its
discretion require, in any suit, action or proceeding for the enforcement of
any right or remedy under this Pass Through Trust Agreement, or in any suit,
action or proceeding against the Pass Through Trustee for any action taken or
omitted by it as Pass Through Trustee hereunder, the filing by any party
litigant in such suit, action or proceeding of an undertaking to pay the costs
of such suit, action or proceeding, and that such court may, in its discretion,
assess reasonable costs, including reasonable attorney's fees, against any
party litigant in such suit, action or proceeding, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
provided, however, that the provisions of this Section shall not apply to (a)
any suit, action or proceeding instituted by any Certificateholder or group of
Certificateholders evidencing Fractional Undivided Interests aggregating more
than 10% of the Pass Through Trust, (b) any suit, action or proceeding
instituted by any Certificateholder for the enforcement of the distribution of
payments pursuant to Section 4.2 hereof on or after the respective due dates
expressed herein or (c) any suit, action or proceeding instituted by the Pass
Through Trustee or as to which the Pass Through Trustee is made a party.
SECTION 6.7. Right of Certificateholders to Receive Payments Not to
Be Impaired. Anything in this Pass Through Trust Agreement to the contrary
notwithstanding, including without limitation Section 6.8 hereof, the right of
any Certificateholder to receive distributions of payments required pursuant to
Section 4.2 hereof on the Certificates when due, or to institute suit for the
enforcement of any such payment on or after the applicable Regular Distribution
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Date or Special Distribution Date, shall not be impaired or affected without
the consent of such Certificateholder.
SECTION 6.8. Certificateholders May Not Bring Suit Except Under
Certain Conditions. A Certificateholder shall not have the right to institute
any suit, action or proceeding at law or in equity or otherwise with respect to
this Pass Through Trust Agreement, for the appointment of a receiver or for the
enforcement of any other remedy under this Pass Through Trust Agreement,
unless:
(i) such Certificateholder previously shall have given
written notice to the Pass Through Trustee of a continuing Event of
Default;
(ii) the Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than 25% of the
Pass Through Trust shall have requested the Pass Through Trustee in
writing to institute such action, suit or proceeding and shall have
offered to the Pass Through Trustee indemnity as provided in Section
7.3(v);
(iii) the Pass Through Trustee shall have refused or
neglected to institute any such action, suit or proceeding for 60 days
after receipt of such notice, request and offer of indemnity; and
(iv) no direction inconsistent with such written request has
been given to the Pass Through Trustee during such 60-day period by
the Certificateholders holding Certificates evidencing Fractional
Undivided Interests aggregating not less than an a majority in
interest in the Pass Through Trust.
It is understood and intended that no one or more of the
Certificateholders shall have any right in any manner whatever hereunder or
under the Certificates to (x) surrender, impair, waive, affect, disturb or
prejudice any property in the Trust Property or the lien of the Indenture or
any Equipment Trust Agreement on any property subject thereto, or the rights of
the Certificateholders or the holders of the Equipment Notes or ETCs, as the
case may be, (y) obtain or seek to obtain priority over or preference to any
other such Certificateholder or (z) enforce any right under this Pass Through
Trust Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all the Certificateholders subject to the
provisions of this Pass Through Trust Agreement.
SECTION 6.9. Remedies Cumulative. Every remedy given hereunder to
the Pass Through Trustee or to any of the Certificateholders shall not be
exclusive of any other remedy or remedies, and every such remedy shall be
cumulative and in addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise.
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ARTICLE VII
THE PASS THROUGH TRUSTEE
SECTION 7.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(i) the Pass Through Trustee undertakes to perform only such
duties as are specifically set forth in this Pass Through Trust
Agreement, and no implied covenants, duties or obligations shall be
read into this Pass Through Trust Agreement against the Pass Through
Trustee; and
(ii) in the absence of bad faith on its part, the Pass
Through Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Pass Through Trustee and
conforming to the requirements of this Pass Through Trust Agreement;
but in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Pass
Through Trustee, the Pass Through Trustee shall be under a duty to
examine the form of the same to determine whether or not they
substantially conform to the requirements of this Pass Through Trust
Agreement, but shall be under no duty to investigate the facts
contained therein.
(b) In case an Event of Default has occurred and is continuing, the
Pass Through Trustee shall exercise such of the right and powers vested in it
by this Pass Through Trust Agreement, and use the same degree of care and skill
in its exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(c) No provision of this Pass Through Trust Agreement shall be
construed to relieve the Pass Through Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that
(i) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(ii) the Pass Through Trustee shall not be liable for any
error of judgement made in good faith by a Responsible Officer of the
Pass Through Trustee;
(iii) the Pass Through Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Certificateholders evidencing
Fractional Undivided Interests aggregating not less than a majority in
interest in the Pass Through Trust relating to the time, method and
place of conducting any proceeding for any remedy available to the
Pass Through Trustee, or
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exercising any trust or power conferred upon the Pass Through Trustee,
under this Pass Through Trust Agreement; and
(iv) no provision of this Pass Through Trust Agreement shall
require the Pass Through Trustee to expend or risk its own funds in
the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for
believing that payment of such funds or adequate indemnity against
such risk is not reasonably assured to it.
(d) Whether or not herein expressly so provided, every provision of
this Pass Through Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Pass Through Trustee shall be
subject to the provisions of this Section.
SECTION 7.2. Notice of Defaults. As promptly as practicable after,
and in any event within 30 days after, the occurrence of any default (as such
term is defined below) hereunder, the Pass Through Trustee shall transmit by
mail to the Certificateholders, the Companies, the Owner Trustee, the Equipment
Trust Trustees and the Indenture Trustees in accordance with Section 313(c) of
the Trust Indenture Act, notice of such default hereunder known to the Pass
Through Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or Make-Whole Amount, if any) or interest on any Equipment Note or ETC, as
the case may be, the Pass Through Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee
or a trust committee of directors and/or Responsible Officers of the Pass
Through Trustee in good faith determine that the withholding of such notice is
in the interests of the Certificateholders. For the purpose of this Section,
the term "default" means the occurrence of any Event of Default, except that in
determining whether any such Event of Default has occurred for the purposes of
this paragraph any grace period or notice in connection therewith shall be
disregarded.
SECTION 7.3. Certain Rights of Trustee. Except as otherwise provided
in Section 7.1:
(i) the Pass Through Trustee may rely and shall be protected
in acting or refraining from acting in reliance upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) any request or direction of the Companies mentioned
herein shall be sufficiently evidenced by a Request;
(iii) whenever in the administration of this Pass Through
Trust Agreement the Pass Through Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Pass Through Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its
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part, rely upon an Officer's Certificate of Union, on behalf of the
Companies, the Owner Trustee, the Equipment Trust Trustee or the
Indenture Trustee;
(iv) the Pass Through Trustee may consult with counsel and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(v) the Pass Through Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Pass Through
Trust Agreement at the request or direction of any of the
Certificateholders pursuant to this Pass Through Trust Agreement,
unless such Certificateholders shall have offered to the Pass Through
Trustee reasonable security or indemnity against the cost, expenses
and liabilities which might be incurred by it in compliance with such
request or direction;
(vi) the Pass Through Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document;
(vii) the Pass Through Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Pass Through Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(viii) to the extent the provisions of this Section 7.3 are
inconsistent with the duties of the Pass Through Trustee as required
by Section 315 of the Trust Indenture Act, the requirements of such
Section 315 shall prevail.
SECTION 7.4. Not Responsible for Recitals or Issuance of
Certificates. The recitals contained herein and in the Certificates, except
the certificates of authentication, shall not be taken as the statements of the
Pass Through Trustee, and the Pass Through Trustee assumes no responsibility
for their correctness. Subject to Section 7.15, the Pass Through Trustee makes
no representations as to the validity or sufficiency of this Pass Through Trust
Agreement, any Note Document, any ETC Document, the Participation Agreement,
the Equipment Notes, the ETCs or the Certificates, except that the Pass Through
Trustee hereby represents and warrants that this Pass Through Trust Agreement
has been, and each Certificate will be, executed and delivered by one of its
officers who is duly authorized to execute and deliver such document on its
behalf.
SECTION 7.5. May Hold Certificates. The Pass Through Trustee, any
Paying Agent, Registrar or any of their Affiliates or any other agent, in their
respective individual or any other capacity, may become the owner or pledgee of
Certificates and, subject to Sections 310(b) and 311 of the Trust Indenture
Act, may otherwise deal with the Companies, the Owner Trustee, the
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Equipment Trust Trustees or the Indenture Trustee with the same rights it would
have if it were not Pass Through Trustee, Paying Agent, Registrar or such other
agent.
SECTION 7.6. Money Held in Pass Through Trust. Money held by the
Pass Through Trustee or the Paying Agent in trust hereunder need not be
segregated from other funds except to the extent required herein or by law and
neither the Pass Through Trustee nor the Paying Agent shall have any liability
for interest upon any such moneys except as provided for herein.
SECTION 7.7. Compensation and Reimbursement. The Companies agree,
severally and not jointly:
(i) to pay, or cause to be paid, pursuant to separate
agreements between the Companies and the Pass Through Trustee to the
Pass Through Trustee from time to time reasonable compensation for all
services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust), except for the Pass Through Trustee's
initial fees, which fees shall be paid by the Owner Trustee;
(ii) except as otherwise expressly provided herein, to
reimburse, or cause to be reimbursed, the Pass Through Trustee upon
its request for all reasonable out-of-pocket expenses, disbursements
and advances incurred or made by the Pass Through Trustee in
accordance with any provision of this Pass Through Trust Agreement
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence,
willful misconduct or bad faith or as may be incurred due to the Pass
Through Trustee's breach of its representations and warranties set
forth in Sections 7.4 and 7.15 and except for the initial reasonable
actual disbursements made by the Pass Through Trustee, which
disbursements shall be reimbursed by the Owner Trustee;
(iii) to indemnify, or cause to be indemnified, the Pass
Through Trustee, in its individual and trust capacities, for, and to
hold it harmless against, any loss, liability or expense (other than
for or with respect to any tax) incurred without negligence, willful
misconduct or bad faith, on its part, arising out of or in connection
with the acceptance or administration of this Pass Through Trust,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except for any such loss, liability or
expense incurred by reason of the Pass Through Trustee's breach of its
representations and warranties set forth in Sections 7.4 and 7.15.
The Pass Through Trustee shall notify the Companies promptly of any
claim for which it may seek indemnity. The Companies shall defend the
claim and the Pass Through Trustee shall cooperate in the defense.
The Pass Through Trustee may have separate counsel with the consent of
the Companies, and the Companies will pay the reasonable fees and
expenses of such counsel. The Companies need not pay for any
settlement made without their consent; and
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(iv) to indemnify, or cause to be indemnified, the Pass
Through Trustee, solely in its individual capacity, for, and to hold
it harmless against, any tax (other than for or with respect to any
tax referred to in the next paragraph, provided that no
indemnification shall be available with respect to any tax
attributable to the Pass Through Trustee's compensation for serving as
such) incurred without negligence, willful misconduct or bad faith, on
its part, arising out of or in connection with the acceptance or
administration of this Pass Through Trust, including any costs and
expenses reasonably incurred in contesting the imposition of any such
tax. The Pass Through Trustee, in its individual capacity, shall
notify the Companies promptly of any tax for which it may seek
indemnity. The Companies shall defend against the imposition of such
tax and the Pass Through Trustee, in its individual capacity, shall
cooperate in the defense. The Pass Through Trustee, in its individual
capacity, may have separate counsel with the consent of the Companies,
and the Companies will pay the reasonable fees and expenses of such
counsel. The Companies need not pay for any taxes paid, in settlement
or otherwise, without their consent.
In addition, the Pass Through Trustee shall be entitled to
reimbursement from, and shall have a lien prior to the Certificates upon, all
property and funds held or collected by the Pass Through Trustee in its
capacity as Pass Through Trustee for any tax incurred without negligence, bad
faith or willful misconduct, on its part, arising out of or in connection with
the acceptance or administration of this Pass Through Trust (other than any tax
attributable to the Pass Through Trustee's compensation for serving as such),
including any costs and expenses reasonably incurred in contesting the
imposition of any such tax. If the Pass Through Trustee reimburses itself for
any such tax, it will within 30 days mail a brief report setting forth the
circumstances thereof to all Certificateholders as their names and addresses
appear in the Register.
The Pass Through Trustee shall have a lien prior to the Certificates
upon all property and funds held or collected by the Pass Through Trustee in
its capacity as Pass Through Trustee.
SECTION 7.8. Corporate Trustee Required; Eligibility. This Agreement
shall at all times have a Pass Through Trustee which shall be eligible to act
as a trustee under Section 310(a) of the Trust Indenture Act and shall have a
combined capital and surplus of at least $100,000,000 and the obligations of
which, whether now in existence or hereafter incurred, are fully and
unconditionally guaranteed by a corporation organized and doing business under
the laws of the United States of America, any State or Territory thereof or of
the District of Columbia and having a combined capital and surplus of at least
$100,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or the requirements of Federal, State, Territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section 7.8, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published.
The Pass Through Trustee shall comply with Section 310(b) of the Trust
Indenture Act.
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In case at any time the Pass Through Trustee shall cease to be
eligible in accordance with the provisions of this Section 7.8, the Pass
Through Trustee shall resign immediately in the manner and with the effect
specified in Section 7.9.
SECTION 7.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Pass Through Trustee and no
appointment of a successor Pass Through Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Pass
Through Trustee under Section 7.10.
(b) The Pass Through Trustee may resign at any time by giving written
notice thereof to the Companies, the Authorized Agents, the Owner Trustees, the
Equipment Trust Trustees and the Indenture Trustee. If an instrument of
acceptance by a successor Pass Through Trustee shall not have been delivered to
the Companies, the Owner Trustee, the Equipment Trust Trustees and the
Indenture Trustee within 30 days after the giving of such notice of
resignation, the resigning Pass Through Trustee may petition any court of
competent jurisdiction for the appointment of a successor Pass Through Trustee.
(c) The Pass Through Trustee may be removed at any time by Act of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Pass Through
Trust delivered to the Pass Through Trustee and to the Companies, the Owner
Trustee, the Equipment Trustee Trustees and the Indenture Trustee.
(d) If at any time:
(i) the Pass Through Trustee shall fail to comply with
Section 310 of the Trust Indenture Act after written request therefor
by the Companies or by any Certificateholder who has been a bona fide
Certificateholder for at least six months; or
(ii) the Pass Through Trustee shall cease to be eligible
under Section 7.8 and shall fail to resign after written request
therefor by the Companies or by any such Certificateholder; or
(iii) the Pass Through Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a receiver of
the Pass Through Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Pass Through
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any case, (x) the Companies may remove the Pass Through Trustee or (y)
subject to Section 6.6, any Certificateholder who has been a bona fide
Certificateholder for at least six months may, on behalf of himself and all
others similarly situated, petition any court of
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competent jurisdiction for the removal of the Pass Through Trustee and the
appointment of a successor Pass Through Trustee.
(e) If a Responsible Officer of the Pass Through Trustee shall obtain
actual knowledge of an Avoidable Tax (as hereinafter defined) which has been or
is likely to be asserted, the Pass Through Trustee shall promptly notify the
Companies and the Owner Trustee thereof and shall, within 30 days of such
notification, resign hereunder unless within such 30-day period the Pass
Through Trustee shall have received notice that the Companies or the Owner
Trustees have agreed to pay such tax. The Companies shall promptly appoint a
successor Pass Through Trustee in a jurisdiction where there are no Avoidable
Taxes. As used herein, an "Avoidable Tax" means a state or local tax: (i) upon
(w) the Pass Through Trust, (x) the Trust Property, (y) Certificateholders or
(z) the Pass Through Trustee for which the Pass Through Trustee is entitled to
seek reimbursement from the Trust Property, and (ii) which would be avoided if
the Pass Through Trustee were located in another state, or jurisdiction within
a state, within the United States. A tax shall not be an Avoidable Tax if the
Companies or the Owner Trustee shall agree to pay, and shall pay, such tax.
(f) If the Pass Through Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Pass
Through Trustee for any cause, Union shall promptly appoint a successor Pass
Through Trustee. If, within one year after such resignation, removal or
incapacity, or the occurrence of such vacancy, a successor Pass Through Trustee
shall be appointed by Act of the Certificateholders holding Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Pass Through Trust delivered to the Companies, the Owner
Trustee, the Indenture Trustee, the Equipment Trust Trustees and the retiring
Pass Through Trustee, the successor Pass Through Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Pass
Through Trustee and supersede the retiring Pass Through Trustee. If no
successor Pass Through Trustee shall have been so appointed as provided above
and accepted appointment in the manner hereinafter provided, any
Certificateholder who has been a bona fide Certificateholder for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Pass
Through Trustee.
(g) The successor Pass Through Trustee shall give notice of the
resignation and removal of the Pass Through Trustee and appointment of the
successor Pass Through Trustee by mailing written notice of such event by
first-class mail, postage prepaid, to the Certificateholders as their names and
addresses appear in the Register. Each notice shall include the name of such
successor Pass Through Trustee and the address of its Corporate Trust Office.
SECTION 7.10. Acceptance of Appointment by Successor. Every
successor Pass Through Trustee appointed hereunder shall execute, acknowledge
and deliver to the Companies and the retiring Pass Through Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Pass Through Trustee shall become effective and such successor
Pass Through Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Pass
Through Trustee; but,
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on request of the Companies or the successor Pass Through Trustee, such
retiring Pass Through Trustee shall execute and deliver an instrument
transferring to such successor Pass Through Trustee all the rights, powers and
trusts of the retiring Pass Through Trustee and shall duly assign, transfer and
deliver to such successor Pass Through Trustee all property and money held by
such retiring Pass Through Trustee hereunder, subject nevertheless to its lien,
if any, provided for in Section 7.7. Upon request of any such successor Pass
Through Trustee, Union, the retiring Pass Through Trustee and such successor
Pass Through Trustee shall execute and deliver any and all instruments
containing such provisions as shall be necessary or desirable to transfer and
confirm to, and for more fully and certainly vesting in, such successor Pass
Through Trustee all such rights, powers and trusts.
No successor Pass Through Trustee shall accept its appointment unless
at the time of such acceptance such successor Pass Through Trustee shall be
qualified and eligible under this Article.
SECTION 7.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Pass Through Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Pass Through Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Pass Through Trustee, shall be the
successor of the Pass Through Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Certificates shall have been authenticated, but
not delivered, by the Pass Through Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Pass Through Trustee
may adopt such authentication and deliver the Certificates so authenticated
with the same effect as if such successor Pass Through Trustee had itself
authenticated such Certificates.
SECTION 7.12. Maintenance of Agencies.
(a) There shall at all times be maintained in the Borough of
Manhattan, The City of New York, an office or agency where Certificates may be
presented or surrendered for registration of transfer or for exchange, and for
payment thereof and where notices and demands to or upon the Pass Through
Trustee in respect of the Certificates or of this Pass Through Trust Agreement
may be served. Such office or agency shall be initially at
[__________________________, [Trustee address]. 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 Union, the Owner Trustee, the Indenture
Trustee, the Equipment Trust Trustees and the Certificateholders. In the event
that no such office or agency shall be maintained or no such notice of location
or of change of location shall be given, presentations and demands may be made
and notices may be served at the Corporate Trust Office of the Pass Through
Trustee.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder. Each such Authorized Agent shall be a bank or trust company, shall
be a corporation organized and doing
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business under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, with a combined capital and
surplus of at least $75,000,000, or, if the Pass Through Trustee shall be
acting as the Registrar or Paying Agent hereunder, a corporation the
obligations of which are guaranteed by a corporation organized and doing
business under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, with a combined capital and
surplus of at least $75,000,000, and shall be authorized under such laws to
exercise corporate trust powers, subject to supervision by Federal or state
authorities. The Pass Through Trustee shall initially be the Paying Agent and,
as provided in Section 3.4, Registrar hereunder. Each Registrar shall furnish
to the Pass Through Trustee, at stated intervals of not more than six months,
and at such other times as the Pass Through Trustee may request in writing, a
copy of the Register.
(c) Any corporation into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authorized Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authorized Agent, shall be the successor of such Authorized Agent
hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or such Authorized Agent or such successor
corporation.
(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Pass Through Trustee, the Companies, the Owner
Trustee, the Equipment Trust Trustees and the Indenture Trustee. The Companies
may, and at the request of the Pass Through Trustee shall, at any time
terminate the agency of any Authorized Agent by giving written notice of
termination to such Authorized Agent and to the Pass Through Trustee. Upon the
resignation or termination of an Authorized Agent or in case at any time any
such Authorized Agent shall cease to be eligible under this Section (when, in
either case, no other Authorized Agent performing the functions of such
Authorized Agent shall have been appointed), the Companies shall promptly
appoint one or more qualified successor Authorized Agents, reasonably
satisfactory to the Pass Through Trustee, to perform the functions of the
Authorized Agent which has resigned or whose agency has been terminated or who
shall have ceased to be eligible under this Section. Union shall give written
notice of any such appointment made by them to the Pass Through Trustee, the
Owner Trustee, the Equipment Trust Trustees and the Indenture Trustee; and in
each case the Pass Through Trustee shall mail notice of such appointment to all
Certificateholders as their names and addresses appear on the Register.
(e) The Companies agree, severally and not jointly, to pay, or cause
to be paid, pursuant to separate agreements from time to time to each
Authorized Agent reasonable compensation for its services and to reimburse it
for its reasonable expenses.
SECTION 7.13. Money for Certificate Payments to Be Held in Pass
Through Trust. All moneys deposited with any Paying Agent for the purpose of
any payment on Certificates shall be deposited and held in trust for the
benefit of the Certificateholders entitled to such payment, subject to the
provisions of this Section. Moneys so deposited and held in trust shall
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constitute a separate trust fund for the benefit of the Certificateholders with
respect to which such money was deposited.
The Pass Through Trustee will cause each Paying Agent other than the
Pass Through Trustee to execute and deliver to it an instrument in which such
Paying Agent shall agree with the Pass Through Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for payments on Certificates in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
(ii) give the Pass Through Trustee notice of any default by
any obligor upon the Certificates in the making of any such payment;
and
(iii) at any time during the continuance of any such default,
upon the written request of the Pass Through Trustee, forthwith pay to
the Pass Through Trustee all sums so held in trust by such Paying
Agent.
The Pass Through Trustee may at any time, for the purpose of
obtaining the satisfaction and discharge of this Pass Through Trust Agreement
or for any other purpose, direct any Paying Agent to pay to the Pass Through
Trustee all sums held in trust by such Paying Agent, such sums to be held by
the Pass Through Trustee upon the same trusts as those upon which such sums
were held by such Paying Agent; and, upon such payment by any Paying Agent to
the Pass Through Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
SECTION 7.14. Registration of Equipment Notes and ETCs in Pass
Through Trustee's Name. The Pass Through Trustee agrees that all Equipment
Notes, ETCs, Permitted Investments, if any, and Specified Investments, if any,
shall be issued in the name of the Pass Through Trustee or its nominee and held
by the Pass Through Trustee, or, if not so held, the Pass Through Trustee or
its nominee shall be reflected as the owner of such Equipment Notes, ETCs,
Permitted Investments, or Specified Investments, as the case may be, in the
register of the issuer of such Equipment Notes, ETCs, Permitted Investments or
Specified Investments. In no event shall the Pass Through Trustee invest in,
or hold, Equipment Notes, ETCs, Permitted Investments or Specified Investments
in a manner that would cause the Pass Through Trustee not to have the ownership
interest in such Equipment Notes, ETCs, Permitted Investments or Specified
Investments under the applicable provisions of the Uniform Commercial Code in
effect where the Pass Through Trustee holds such Equipment Notes, ETCs,
Permitted Investments or Specified Investments or other applicable law then in
effect.
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SECTION 7.15. Representations and Warranties of Pass Through Trustee.
The Pass Through Trustee hereby represents and warrants that:
(i) the Pass Through Trustee is a national banking
association, validly existing and holding a valid certificate to
conduct business as a national banking association with trust powers
under the laws of the United States of America;
(ii) the Pass Through Trustee has full power, authority and
legal right to execute, deliver, and perform this Pass Through Trust
Agreement and the Participation Agreement and has taken all necessary
action to authorize the execution, delivery, and performance by it of
this Pass Through Trust Agreement and the Participation Agreement;
(iii) the execution, delivery and performance by the Pass
Through Trustee of this Pass Through Trust Agreement and the
Participation Agreement (a) will not violate any provision of any
United States or Illinois law or regulation governing the banking and
trust powers of the Pass Through Trustee or any order, writ, judgment,
or decree of any court, arbitrator, or governmental authority
applicable to the Pass Through Trustee or any of its assets, (b) will
not violate any provision of the articles of association or by-laws of
the Pass Through Trustee, or (c) will not violate any provision of, or
constitute, with or without notice or lapse of time, a default under,
or result in the creation or imposition of any lien on any properties
included in the Trust Property pursuant to the provisions of any
mortgage, indenture, contract, agreement or other undertaking to which
it is a party, which violation, default or lien could reasonably be
expected to have an adverse effect on the Pass Through Trustee's
performance or ability to perform its duties hereunder or thereunder
or on the transactions contemplated herein or therein;
(iv) the execution, delivery and performance by the Pass
Through Trustee of this Pass Through Trust Agreement and the
Participation Agreement will not require the authorization, consent,
or approval of, the giving of notice to, the filing or registration
with, or the taking of any other action in respect of, any United
States or Illinois governmental authority or agency regulating the
banking and corporate trust activities of the Pass Through Trustee,
other than any such authorization, consent or approval as has been
duly obtained or given and is in full force and effect; and
(v) this Pass Through Trust Agreement and the Participation
Agreement have been duly executed and delivered by the Pass Through
Trustee and constitute the legal, valid, and binding agreements of the
Pass Through Trustee, enforceable against it in accordance with their
respective terms, provided that enforceability may be limited by (x)
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and (y)
general principles of equity.
SECTION 7.16. Withholding Taxes; Information Reporting. The Pass
Through Trustee, as trustee of a grantor trust, shall exclude and withhold from
each distribution of principal, Make-Whole Amount, if any, and interest and
other amounts due hereunder or under the
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Certificates any and all withholding taxes applicable thereto as required by
law. The Pass Through Trustee agrees to act as such withholding agent and, in
connection therewith, whenever any present or future taxes or similar charges
are required to be withheld with respect to any amounts payable in respect of
the Certificates, to withhold such amounts and timely pay the same to the
appropriate authority in the name of and on behalf of the Certificateholders,
that it will file any necessary withholding tax returns or statements when due,
and that, as promptly as possible after the payment thereof, it will deliver to
each Certificateholder appropriate documentation showing the payment thereof,
together with such additional documentary evidence as such Certificateholders
may reasonably request from time to time. The Pass Through Trustee agrees to
file any other information reports as it may be required to file under United
States law. To the extent that the Pass Through Trustee fails, with respect to
any Certificateholder, to withhold and pay over any such taxes to the
appropriate taxing authority, the Pass Through Trustee shall, upon a claim
being made for such taxes by such authority, and before making any claim to
Union for indemnification under Section 7.1 of the Participation Agreement (if
such indemnification would otherwise be permissible thereunder), take all
reasonable steps to recover such taxes from such Certificateholder, including,
without limitation, withholding the amount of such taxes from subsequent
distributions, if any, to such Certificateholder. To the extent that the Pass
Through Trustee receives any amount from Union for indemnification of such
taxes which the Pass Through Trustee thereafter recovers from the appropriate
Certificateholder (including by withholding from subsequent distributions to
such Certificateholder), the Pass Through Trustee shall reimburse Union
therefor. The Pass Through Trustee shall be permitted to rely upon any
certificate presented by a Certificateholder claiming an exemption from
withholding absent bad faith on the part of the Pass Through Trustee.
SECTION 7.17. Trustee's Liens. The Pass Through Trustee in its
individual capacity agrees that it will at its own cost and expense promptly
take such actions as may be necessary to duly discharge and satisfy in full all
Trustee's Liens.
SECTION 7.18. Preferential Collection of Claims. The Pass Through
Trustee shall comply with Sections 311(a) and (b) of the Trust Indenture Act,
excluding any creditor relationship arising under Section 311(b) of the Trust
Indenture Act. A Pass Through Trustee who has resigned or been removed shall
be subject to Section 311(a) of the Trust Indenture Act to the extent
indicated.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY PASS THROUGH TRUSTEE
SECTION 8.1. The Companies to Furnish Pass Through Trustee with Names
and Addresses of Certificateholders. The Companies will furnish to the Pass
Through Trustee within 15 days after each Record Date with respect to a
Scheduled Payment, and at such other times as the Pass Through Trustee may
request in writing, within 30 days after receipt by the Companies of any such
request, a list, in such form as the Pass Through Trustee may reasonably
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require, of all information in the possession or control of the Companies as to
the names and addresses of the Certificateholders, in each case as of a date
not more than 15 days prior to the time such list is furnished; provided,
however, that so long as the Pass Through Trustee is the sole Registrar, no
such list need be furnished; and provided further, however, that no such list
need be furnished for so long as a copy of the Register is being furnished to
the Pass Through Trustee pursuant to Section 7.12.
SECTION 8.2. Preservation of Information; Communications to
Certificateholders. The Pass Through Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses of
Certificateholders contained in the most recent Register or list furnished to
the Pass Through Trustee as provided in Section 7.12 or Section 8.1, as the
case may be, and the names and addresses of Certificateholders received by the
Pass Through Trustee in its capacity as Registrar, if so acting. The Pass
Through Trustee may destroy any Register or list furnished to it as provided in
Section 7.12 or Section 8.1, as the case may be, upon receipt of a new Register
or list so furnished.
SECTION 8.3. Reports by Pass Through Trustee.
(a) Within 60 days after _________ of each year commencing with the
year 1996, the Pass Through Trustee shall transmit to the Certificateholders,
as provided in Section 313(c) of the Trust Indenture Act, a report dated as of
such _________, if required by Section 313(a) of the Trust Indenture Act. The
Pass Through Trustee shall also comply with Section 313(b) of the Trust
Indenture Act.
(b) A copy of each such report shall, at the time of transmission to
Certificateholders, be filed by the Pass Through Trustee with each stock
exchange (if any) upon which the Certificates are listed, and also with the
Commission. The Companies will notify the Pass Through Trustee when the
Certificates are listed on any stock exchange and any subsequent change with
respect thereto.
SECTION 8.4. Reports by the Company. Union shall and, if Procor
becomes subject to the periodic reporting requirements of Section 13 or 15(d)
of the Exchange Act, Procor shall:
(a) file with the Pass Through Trustee, within 30 days after it is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which it is required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934,
as amended; or if it is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Pass Through Trustee
and the Commission, in accordance with rules and regulations prescribed by the
Commission pursuant to Section 314(a)(1) of the Trust Indenture Act, such of
the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended,
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in respect of a security listed and registered on a national securities
exchange as may be prescribed in such rules and regulations;
(b) file with the Pass Through Trustee and the Commission, in
accordance with the rules and regulations prescribed by the Commission, such
additional information, documents and reports with respect to compliance by it
with the conditions and covenants provided for in this Agreement, as may be
required by such rules and regulations, including, in the case of annual
reports, if required by such rules and regulations, certificates or opinions of
independent public accountants, conforming to the requirements of Section 1.2;
(c) transmit to all Certificateholders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act such summaries of
any information, documents and reports required to be filed by Union and Procor
pursuant to subsections (a) and (b) of this Section 8.4 as may be required by
rules and regulations prescribed by the Commission; and
(d) furnish to the Pass Through Trustee, not less often than
annually, a certificate from the principal executive officer, principal
financial officer or principal accounting officer thereof as to his or her
knowledge of Union's and Procor's compliance with all conditions and covenants
under this Agreement. For purposes of this subsection (d), such compliance
shall be determined without regard to any period of grace or requirement of
notice provided under this Agreement. Until such time as Procor becomes a
reporting company under the Exchange Act, such annual certificate may be
furnished as to both Union and Procor by a Responsible Officer of Union.
ARTICLE IX
SUPPLEMENTS TO PASS THROUGH TRUST AGREEMENT
SECTION 9.1. Supplements to Pass Through Trust Agreement Without
Consent of Certificateholders. Without the consent of the Certificateholders,
the Companies may, and the Pass Through Trustee (subject to Section 9.3) shall,
at any time and from time to time enter into one or more agreements
supplemental hereto, in form satisfactory to the Pass Through Trustee, for any
of the following purposes:
(i) to evidence the succession of another corporation to
Union or Procor and the assumption by any such successor of the
covenants of Union or Procor herein contained;
(ii) to add to the covenants of either of the Companies for
the benefit of the Certificateholders, or to surrender any right or
power herein conferred upon the Companies;
(iii) to cure any ambiguity, to correct any manifest error to
correct or supplement any provision herein which may be defective or
inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under
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this Pass Through Trust Agreement, provided that any such action shall
not adversely affect the interests of the Certificateholders; or
(iv) to modify, eliminate or add to the provisions of this
Pass Through Trust Agreement to such extent as shall be necessary to
continue the qualification of this Pass Through Trust Agreement
(including any supplemental agreement) under the Trust Indenture Act,
or under any similar Federal statute hereafter enacted, and to add to
this Pass Through Trust Agreement such other provisions as may be
expressly permitted by the Trust Indenture Act, excluding, however,
the provisions referred to in Section 316(a)(2) of the Trust Indenture
Act as in effect at the date as of which this instrument was executed
or any corresponding provision in any similar Federal statute
hereafter enacted.
SECTION 9.2. Supplements to Pass Through Trust Agreement with Consent
of Certificateholders. With the consent of the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less
than a majority in interest, by Act of such Certificateholders delivered to the
Companies and the Pass Through Trustee, the Companies may (with the consent of
the Owner Trustee, if any, such consent not to be unreasonably withheld), and
the Pass Through Trustee (subject to Section 9.3) shall, enter into an
agreement or agreements supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Pass Through Trust Agreement or of modifying in any manner the rights and
obligations of the Certificateholders under this Pass Through Trust Agreement;
provided, however, that no such supplemental agreement shall, without the
consent of each Certificateholder of an Outstanding Certificate affected
thereby:
(i) reduce in any manner the amount of, or delay the timing
of, any receipt by the Pass Through Trustee of payments on the
Equipment Notes or the ETCs held in the Pass Through Trust or
distributions that are required to be made herein on any Certificate,
or change any date of payment on any Certificate, or change the place
of payment where, or the coin or currency in which, any Certificate is
payable, or impair the right to institute suit for the enforcement of
any such payment or distribution on or after the Regular Distribution
Date or Special Distribution Date applicable thereto;
(ii) permit the disposition of any Equipment Note or ETCs in
the Trust Property except as permitted by this Pass Through Trust
Agreement, or otherwise deprive any Certificateholder of the
beneficial ownership of the Equipment Notes or ETCs in the Pass
Through Trust;
(iii) reduce the percentage of the aggregate Fractional
Undivided Interests of the Pass Through Trust required for any such
supplemental agreement, or reduce such percentage required for any
waiver (of compliance with certain provisions of this Pass Through
Trust Agreement or certain defaults hereunder and their consequences)
provided or in this Pass Through Trust Agreement;
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(iv) modify Article XII or otherwise release Union from its
obligations under the Guarantee; or
(v) modify any of the provisions of this Section or Section
6.5, except to increase any such percentage or to provide that certain
other provisions of this Pass Through Trust Agreement cannot be
modified or waived without the consent of the Certificateholder of
each Certificate affected thereby.
It shall not be necessary for any Act of Certificateholders under this
Section to approve the particular form of any proposed supplemental agreement,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3. Documents Affecting Immunity or Indemnity. If in the
opinion of the Pass Through Trustee any document required to be executed by it
pursuant to the terms of Section 9.1 or 9.2 affects any interest, right, duty,
obligation, immunity or indemnity in favor of the Pass Through Trustee under
this Pass Through Trust Agreement, the Pass Through Trustee may in its
discretion decline to execute such document.
SECTION 9.4. Execution of Supplements to Pass Through Trust
Agreements. In executing, or accepting the additional trusts created by, any
supplemental agreement permitted by this Article or the modifications thereby
of the trusts created by this Pass Through Trust Agreement, the Pass Through
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
agreement is authorized or permitted by this Pass Through Trust Agreement.
SECTION 9.5. Effect of Supplements to Pass Through Trust Agreement.
Upon the execution of any supplemental agreement under this Article, this Pass
Through Trust Agreement shall be modified in accordance therewith, and such
supplemental agreement shall form a part of this Pass Through Trust Agreement
for all purposes; and every Certificateholder of Certificates theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.6. Conformity with Trust Indenture Act. Every supplemental
agreement executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
SECTION 9.7. Reference in Certificates to Supplements to Pass Through
Trust Agreements. Certificates authenticated and delivered after the execution
of any supplemental agreement pursuant to this Article may bear a notation in
form approved by the Pass Through Trustee as to any matter provided for in such
supplemental agreement, and, in such case, suitable notation may be made upon
Outstanding Certificates after proper presentation and demand.
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ARTICLE X
AMENDMENTS TO INDENTURE, NOTE DOCUMENTS,
EQUIPMENT TRUST AGREEMENTS AND ETC DOCUMENTS
In the event that the Pass Through Trustee, as holder of any Equipment
Note or an ETC in trust for the benefit of the Certificateholders, receives a
request for a consent to any amendment, modification, waiver or supplement
under the Indenture, other Note Document, either Equipment Trust Agreement,
other ETC Document or the Participation Agreement, the Pass Through Trustee
shall forthwith send a notice of such proposed amendment modification, waiver
or supplement, to each Certificateholder registered on the Register as of such
date. The Pass Through Trustee shall request from the Certificateholders
Directions as to (a) whether or not to direct the Indenture Trustee or such
Equipment Trust Trustee, as the case may be, to take or refrain from taking any
action which a holder of such Equipment Note or ETC, as the case may be, has
the option to direct, (b) whether or not to give or execute any waivers,
consents, amendments, modifications or supplements as a holder of such
Equipment Note or ETC, as the case may be, and (c) how to vote any Equipment
Note or ETC, as the case may be, if a vote has been called for with respect
thereto. Provided such a request for Certificateholder Direction shall have
been made, in directing any action or casting any vote or giving any consent as
the holder of any Equipment Note or ETC, as the case may be, the Pass Through
Trustee shall vote or consent with respect to such Equipment Note or ETC, as
the case may be, in the same proportion as the Certificates were actually voted
by Acts of Certificateholders delivered to the Pass Through Trustee prior to
two Business Days before the Pass Through Trustee directs such action or casts
such vote or gives such consent. Notwithstanding the foregoing, but subject to
Section 6.4, in the case that an Event of Default hereunder shall have occurred
and be continuing, the Pass Through Trustee may, in its own discretion and at
its own direction, consent and notify the Indenture Trustee or Equipment Trust
Trustee of such consent to any amendment, modification, waiver or supplement
under the Indenture, and other Note Document, any Equipment Trust Agreement,
any other ETC Document or the Participation Agreement.
ARTICLE XI
TERMINATION OF PASS THROUGH TRUST
The respective obligations and responsibilities of the Companies and
the Pass Through Trustee created hereby and the Pass Through Trust created
hereby shall terminate upon the distribution to all Certificateholders and the
Pass Through Trustee of all amounts required to be distributed to them pursuant
to this Pass Through Trust Agreement and the disposition of all property held
as part of the Trust Property; provided, however, that in no event shall the
trust created hereby continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, father of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, former Vice President of the United States, living on the
date of this Pass Through Trust Agreement.
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Notice of any termination, specifying the Regular Distribution Date
(or Special Distribution Date, as the case may be) upon which the
Certificateholders may surrender their Certificates to the Pass Through Trustee
for payment of the final distribution and cancellation, shall be mailed
promptly by the Pass Through Trustee to Certificateholders not earlier than the
60th day and not later than the 20th day next preceding such final
distribution, specifying (a) the Regular Distribution Date (or Special
Distribution Date, as the case may be) upon which the proposed final payment of
the Certificates will be made upon presentation and surrender of Certificates
at the office or agency of the Pass Through Trustee therein specified, (b) the
amount of any such proposed final payment, and (c) that the Record Date
otherwise applicable to such Regular Distribution Date (or Special Distribution
Date, as the case may be) is not applicable, payments being made only upon
presentation and surrender of the Certificates at the office or agency of the
Pass Through Trustee therein specified. The Pass Through Trustee shall give
such notice to the Registrar at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Pass Through Trustee shall cause to be distributed to Certificateholders
amounts distributable on such Regular Distribution Date (or Special
Distribution Date, as the case may be) pursuant to Section 4.2.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above-mentioned written notice, the Pass Through Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. In the event that any money held by the Pass Through Trustee for the
payment of distributions on the Certificates shall remain unclaimed for two
years and 11 months after the final distribution date with respect thereto, the
Pass Through Trustee shall pay to the Indenture Trustee or each Equipment Trust
Trustee the appropriate amount of money relating to the Indenture Trustee or
such Equipment Trust Trustee and shall give written notice thereof to the Owner
Trustee and Union.
ARTICLE XII
GUARANTEE OF UNION
SECTION 12.1. Guarantee. Subject to the provisions of this
Article XII, Union hereby irrevocably and unconditionally guarantees, as a
primary obligor and not a surety, to each Certificateholder of a Certificate
now or hereafter authenticated and delivered by the Pass Through Trustee and to
the Pass Through Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Pass Through Trust Agreement, the
Certificates hereunder, the Procor Equipment Trust Agreement or the Procor ETC
thereunder, the due and punctual distribution to Certificateholders of the
amounts of principal of, and interest (including post-petition interest in any
proceeding under any applicable bankruptcy law whether or not permitted
thereby), and interest on overdue principal and interest, if any, to the extent
lawful, payable with respect to the Procor ETC when and as the same shall
become due and payable, whether by acceleration thereof, or otherwise
(including amounts that would become due but for
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the operation of the automatic stay under applicable bankruptcy law), in
accordance with the terms of the Procor ETC and of this Pass Through Trust
Agreement. Union also hereby guarantees for the benefit of the Persons
identified in the preceding sentence, the due and punctual performance by
Procor of its obligations under the Procor Equipment Trust Agreement. Union
hereby agrees that its obligations hereunder shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any failure to
enforce the provisions of the Procor ETC or this Pass Through Trust Agreement,
any waiver, modification or indulgence granted to Procor with respect thereto
by the Certificateholders, the Equipment Trust Trustee or the Pass Through
Trustee, or any other circumstances which may otherwise constitute a legal or
equitable discharge of a surety or guarantor. Union hereby waives diligence,
presentment, filing of claims with a court in the event of a merger or
bankruptcy of Procor, any right to require a proceeding first against Procor,
the benefit of discussion, protest or notice with respect to the Procor ETC or
the indebtedness evidenced thereby and all demands whatsoever, and covenants
that this Guarantee shall not be discharged as to the Procor ETC except by
payment in full of the principal thereof and all accrued interest thereon and
all other amounts due with respect thereto.
Union shall be subrogated to all rights of the
Certificateholders against Procor in respect of any amounts paid to the
Certificateholders by Union pursuant to the provisions of this Guarantee;
provided, however, that Union shall not be entitled to enforce, or to receive
any payments arising out of or based upon, such right of subrogation until all
amounts payable to the Pass Through Trustee hereunder with respect to the
Procor ETC shall have been paid in full.
The Guarantee set forth in this Section 12.1 shall not be
valid or become obligatory for any purpose with respect to a Certificate until
the certificate of authentication on such Certificate shall have been signed by
or on behalf of the Pass Through Trustee.
The parties hereto acknowledge that payments by Union
hereunder with respect to (i) principal attributable to the Procor ETC shall
have the effect of reducing on a dollar for dollar basis the outstanding
principal amount of the Procor ETC and (ii) accrued interest attributable to
the Procor ETC shall have the effect of reducing on a dollar for dollar basis
the outstanding accrued interest on the Procor ETC. For the purposes of this
paragraph only, payments by Union hereunder shall first be applied against
outstanding accrued interest then against outstanding principal.
SECTION 12.2. Execution and Delivery of Guarantee.
(a) To evidence the Guarantee set forth in this Article
XII, Union hereby agrees that a notation of the Guarantee shall be placed on
each Certificate authenticated and delivered by the Pass Through Trustee on or
after the date the Trust Property includes the Procor ETC.
(b) A Responsible Officer of Union shall sign the
notation of Guarantee on the Certificates by manual or facsimile signature. If
a Responsible Officer whose signature is on the notation of Guarantee no longer
holds that office at the time the Pass Through Trustee
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authenticates the Certificate on which the Guarantee is endorsed, the Guarantee
shall be valid nevertheless. Union hereby agrees that the Guarantee set forth
in Section 12.1 shall remain in full force and effect notwithstanding any
failure to endorse on each Certificate a notation of the Guarantee.
(c) The delivery of any Certificate by the Pass Through
Trustee, after the authentication thereof hereunder, shall constitute due
delivery of the Guarantee set forth in this Pass Through Trust Agreement on
behalf of Union.
SECTION 12.3. Limitation of Union's Liability. Union hereby
confirms that it is its intention that the Guarantee not constitute a
fraudulent transfer or conveyance for purposes of any bankruptcy law,
fraudulent conveyance act, or any similar law. To effectuate the foregoing
intention, Union hereby irrevocably agrees that its obligations under the
Guarantee shall be limited to the maximum amount as will, after giving effect
to such maximum amount and all other (contingent or otherwise) liabilities of
Union that are relevant under such laws, and after giving effect to any rights
to contribution pursuant to any agreement providing for an equitable
contribution among Union and other Affiliates of Procor, such maximum amount
shall result in the obligations of Union in respect of such maximum amount not
constituting a fraudulent transfer or conveyance.
SECTION 12.4. Guarantee Unconditional. Upon failure of
payment when due of any amount so guaranteed for whatever reason, Union will be
obligated to pay the same immediately. Union hereby agrees that its
obligations hereunder shall be continuing, absolute and unconditional,
irrespective of: any delays in obtaining or realizing upon or failure to
obtain or realize upon Trust Property; the recovery of any judgment against
Procor or Union; any extension, renewal settlement, compromise, waiver or
release in respect of any obligation of Procor under this Pass Through Trust
Agreement or the Procor ETC, by operation of law or otherwise; any modification
or amendment of or supplement to this Pass Through Trust Agreement or the
Procor ETC; any change in the corporate existence, structure or ownership of
Procor, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting Procor or its assets or any resulting release or discharge
of any obligation of Procor contained in this Pass Through Trust Agreement or
the Procor ETC; the existence of any claim, set-off or other rights which Union
may have at any time against Procor, the Pass Through Trustee, any
Certificateholder or any other Person, whether in connection herewith or any
unrelated transactions; provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim; any
invalidity or unenforceability relating to or against Procor for any reason of
this Pass Through Trust Agreement or the Procor ETC, or any provision of
applicable law or regulation purporting to prohibit the payment by Procor of
the principal of or interest on the Procor ETC or any other amount payable by
Procor under this Pass Through Trust Agreement, or the Procor ETC; or any other
act or omission to act or delay of any kind by Procor, the Pass Through
Trustee, any Certificateholder, or any other Person or any other circumstance
whatsoever which might, but for the provisions of this paragraph, constitute a
legal or equitable discharge of Union's obligations hereunder. Union hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of
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insolvency or bankruptcy of Procor, any right to require a proceeding first
against Procor, protest, notice and all demand whatsoever and covenants that
this Guarantee will not be discharged except by the complete performance of the
obligations contained in the Procor ETC, this Pass Through Trust Agreement and
in this Article XII. Union's obligations hereunder shall remain in full force
and effect until this Pass Through Trust Agreement shall have terminated and
the principal of and interest on the Procor ETC and all other obligations
payable by Procor relating thereto shall have been paid in full. If at any
time the distribution of any payment of the principal of or interest with
respect to the Procor ETC or any other amount payable by Procor under this Pass
Through Trust Agreement is rescinded or must be otherwise restored or returned
upon the insolvency, bankruptcy or reorganization of Procor or otherwise,
Union's obligations hereunder with respect to such payment shall be reinstated
as though such payment had been due but not made at such time, and this Article
XII, to the extent theretofore discharged, shall be reinstated in full force
and effect. Union irrevocably waives any and all rights to which it may be
entitled, by operation of law or otherwise, upon making any payment hereunder
to be subrogated to the rights of the payee against Procor with respect to such
payment or otherwise to be reimbursed, indemnified or exonerated by Procor in
respect thereof until all obligations of Procor under the Procor ETC are
satisfied. Union further agrees that, as between Union, on the one hand, and
the Certificateholders and the Pass Through Trustee, on the other hand, (i) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article VI hereof for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby and (ii) in the event of any declaration of
acceleration of such obligations as provided in Article VI hereof, such
obligations (whether or not due and payable) shall forthwith become due and
payable by Union for the purpose of this Article XII.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1. Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this Pass
Through Trust Agreement or the Pass Through Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding up of the Pass Through Trust, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
SECTION 13.2. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Pass
Through Trust, the Fractional Undivided Interests represented by the
Certificates shall be nonassessable for any losses or expenses of the Pass
Through Trust or for any reason whatsoever, and Certificates upon
authentication thereof by the Pass Through Trustee pursuant to Section 3.2 are
and shall be deemed fully paid. No Certificateholder shall have any right
(except as expressly provided herein) to vote or in any manner otherwise
control the operation and management of the Trust Property, the Pass Through
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Trust established hereunder, or the obligations of the parties hereto, nor
shall anything set forth herein, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association.
SECTION 13.3. Notices.
(a) Unless otherwise expressly specified or permitted by the terms
hereof, all communications and notices provided for herein shall be in writing,
and any such notice shall become effective (i) upon personal delivery thereof,
including, without limitation by overnight mail and courier service, (ii) in
the case of notice by United States mail, certified or registered, postage
prepaid, return receipt requested, three days after being so deposited in the
United States mail, or (iii) in the case of notice by facsimile transmission,
upon transmission thereof, provided such transmission is promptly confirmed
(which conformation may be mechanical), in each case addressed to each party
here to at the addresses set forth below:
if to Union, to:
Union Tank Car Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Secretary
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
if to Procor, to:
Procor Limited
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇, Gerber & ▇▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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if to the Pass Through Trustee, to:
______________________________________________
______________________________________________
______________________________________________
______________________________________________
Attention: _____________________________________
Facsimile: _____________________________________
Telephone:____________________________________
(b) The Companies and the Pass Through Trustee, by notice to the
other parties, may designate additional or different addresses for subsequent
notices or communications.
(c) Any notice or communication to Certificateholders shall be mailed
by first-class mail to the addresses for Certificateholders shown on the
Register kept by the Registrar and to addresses filed with the Pass Through
Trustee for Certificate Owners. Failure so to mail a notice or communication
or any defect in such notice or communication shall not affect its sufficiency
with respect to other Certificateholders.
(d) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is conclusively presumed to have been duly
given, whether or not the addressee receives it.
(e) If the Companies mail a notice or communication to the
Certificateholders, it shall mail a copy to the Pass Through Trustee and to
each Paying Agent at the same time.
(f) Notwithstanding the foregoing, all communications or notices to
the Pass Through Trustee shall be deemed to be given only when received by a
Responsible Officer of the Pass Through Trustee.
(g) The Pass Through Trustee shall promptly furnish the Companies
with a copy of any demand, notice or written communication received by the Pass
Through Trustee hereunder from any Certificateholder, the Owner Trustee, any
Equipment Trust Trustee or the Indenture Trustee.
SECTION 13.4. Communication by Certificateholder with Other
Certificateholders. Certificateholders may communicate pursuant to Section
312(b) of the Trust Indenture Act with other Certificateholders with respect to
their rights under this Pass Through Trust Agreement or under the Certificates,
and the Pass Through Trustee shall comply with Section 312(b) of the Trust
Indenture Act. The Companies and the Pass Through Trustee shall have the
protection of Section 312(c) of the Trust Indenture Act.
SECTION 13.5. Governing Law. THIS PASS THROUGH TRUST AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
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THE STATE OF ________ WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OF CONFLICT OF
LAW PROVISION OR RULE AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 13.6. Severability of Provisions. Whenever possible, each
provision of this Pass Through Trust Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Pass Through Trust Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Pass Through Trust Agreement.
SECTION 13.7. Trust Indenture Act Controls. This Agreement is
subject to the provisions of the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions.
SECTION 13.8. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 13.9. Successors and Assigns. All covenants, agreements,
representations and warranties in this Pass Through Trust Agreement by the Pass
Through Trustee, the Companies shall bind and, to the extent permitted hereby,
shall inure to the benefit of and be enforceable by their respective successors
and assigns, whether so expressed or not.
SECTION 13.10. Benefits of Pass Through Trust Agreement. Nothing in
this Pass Through Trust Agreement or in the Certificates, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, and the Certificateholders, any benefit or any legal or equitable
right, remedy or claim under this Pass Through Trust Agreement.
SECTION 13.11. Legal Holidays. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate
shall not be a Business Day, then (notwithstanding any other provision of this
Pass Through Trust Agreement) payment need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on such Regular Distribution Date or Special Distribution Date, and no
interest shall accrue during the intervening period.
SECTION 13.12. Counterparts. For the purpose of facilitating the
execution of this Pass Through Trust Agreement and for other purposes, this
Pass Through Trust Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
all of which counterparts shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, Union, Procor and the Pass Through Trustee have
caused this Pass Through Trust Agreement to be duly executed by their
respective officers, duly attested, all on the day and year first above
written.
UNION TANK CAR COMPANY
Attest: By
-------------------------------------------------
Title:
-----------------------------------
Title:
PROCOR LIMITED
Attest: By
-------------------------------------------------
Title:
-----------------------------------
Title:
By
-------------------------------------------------
Title:
Attest:
-----------------------------------
Title:
-------------------------------------------------,
as Pass Through Trustee
Attest: By
-------------------------------------------------
Title:
-----------------------------------
Title:
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EXHIBIT A
FORM OF CERTIFICATE
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to issuers or
their agent for registration of transfer, exchange or payment, and any
Certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch the registered owner hereof,
Cede & Co., has an interest herein.
UNION TANK CAR COMPANY
PROCOR LIMITED
1996-A2 PASS THROUGH TRUST
Pass Through Certificate,
Series 1996-A2
Final Distribution Date: ________________
evidencing a fractional undivided interest in a trust, the
property of which includes certain equipment notes (the "Equipment
Notes") and Equipment Trust Certificates ("ETCs") each secured by
equipment leased to Union Tank Car Company or conditionally sold
to Procor Limited.
Certificate
No. ___ $ __________ Fractional Undivided Interest
representing 100% of the Trust
THIS CERTIFIES THAT Cede & Co., for value received, is the
registered owner of a $___________
(____________________________________________________________
___________________________________________________ dollars) Fractional
Undivided Interest in the Union Tank Car Company 1996-A2 Pass Through Trust
(the "Trust") created by _______________________________________, a national
banking association, as trustee (the "Pass Through Trustee"), pursuant to a
Pass Through Trust Agreement 1996-A2 dated May __, 1996 (the "Pass Through
Trust Agreement") among the Pass Through Trustee, Union Tank Car Company, a
Delaware corporation ("Union"), and Procor Limited, a Canadian corporation and
an indirect, wholly-owned subsidiary of Union ("Procor"), (Union and Procor are
referred to herein collectively as the "Companies"), a summary of certain of
the pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Pass Through Trust Agreement. This
67
Certificate is one of the duly authorized Certificates designated as "Pass
Through Certificates, Series 1996-A2" (herein called the "Certificates"). This
Certificate is issued under and is subject to the terms, provisions, and
conditions of the Pass Through Trust Agreement, to which Pass Through Trust
Agreement the Certificateholder of this Certificate by virtue of the acceptance
hereof assents and by which such Certificateholder is bound. The property of
the Pass Through Trust (the "Trust Property") includes certain Equipment Notes
and ETCs and rights under a Union guarantee of the due and punctual
distribution to Certificateholders of principal and interest payable with
respect to the Procor ETC. Each issue of Equipment Notes and ETCs is secured
by, among other things, a security interest in Equipment leased to Union or
conditionally sold to Procor, as the case may be.
Subject to and in accordance with the terms of the Pass Through Trust
Agreement, from funds then available to the Pass Through Trustee, there will be
distributed on _________ and _________ of each year (each a "Regular
Distribution Date"), commencing on _________, 1996, to the Person in whose name
this Certificate is registered at the close of business on the Business Day
preceding the Regular Distribution Date, an amount in respect of the Scheduled
Payments on the Equipment Notes and the ETCs due on such Regular Distribution
Date, the receipt of which has been confirmed by the Pass Through Trustee,
equal to the product of the percentage interest in the Pass Through Trust
evidenced by this Certificate and an amount equal to the sum of such Scheduled
Payments. Subject to and in accordance with the terms of the Pass Through
Trust Agreement, in the event that Special Payments on the Equipment Notes or
the ETCs are received by the Pass Through Trustee, from funds then available to
the Pass Through Trustee, there shall be distributed on the applicable Special
Distribution Date, to the Person in whose name this Certificate is registered
at the close of business on the Business Day preceding the Special Distribution
Date, an amount in respect of such Special Payments on the Equipment Notes or
the ETCs, the receipt of which has been confirmed by the Pass Through Trustee,
equal to the product of the percentage interest in the Pass Through Trust
evidenced by this Certificate and an amount equal to the sum of such Special
Payments so received. If a Regular Distribution Date or Special Distribution
Date is not a Business Day, distribution shall be made on the immediately
following Business Day with the same force and effect as if made on such
Regular Distribution Date or Special Distribution Date and no interest shall
accrue during the intervening period. The Special Distribution Date shall be
the second day of the month, or such other date, if any, determined as provided
in the Pass Through Trust Agreement. The Pass Through Trustee shall mail notice
of each Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Pass Through
Trustee by wire transfer of funds to the Person entitled thereto, without the
presentation or surrender of this Certificate or the making of any notation
hereon, provided, however, that in the event Certificates are issued in the
form of Registered Certificates, distributions on this Certificate will be made
by check mailed to the Person entitled thereto. Except as otherwise provided
in the Pass Through Trust Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after notice mailed by the Pass
Through Trustee of the pendency of
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such distribution and only upon presentation and surrender of this Certificate
at the office or agency of the Pass Through Trustee specified in such notice.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF __________.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Pass Through Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Pass Through Trust Agreement or be valid for
any purpose.
IN WITNESS WHEREOF, the Pass Through Trustee has caused this
Certificate to be duly executed.
UNION TANK CAR COMPANY
1996-A2 PASS THROUGH TRUST
By: _______________________________________,
as Pass Through Trustee
By: _______________________________________
Title:
A-3
69
[Reverse of Certificate]
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by (except to the extent provided in the Pass Through
Trust Agreement), or an interest in Union, Procor, the Pass Through Trustee, in
its individual or trust capacities, any Owner Participant, any Owner Trustee in
its individual capacity, either Equipment Trust Trustee in its individual
capacity, or any affiliate of any thereof. The Certificates are limited in
right of payment, all as more specifically set forth on the face hereof and in
the Pass Through Trust Agreement. All payments or distributions made to
Certificateholders under the Pass Through Trust Agreement shall be made only
from the Trust Property and only to the extent that the Pass Through Trustee
shall have sufficient income or proceeds from the Trust Property to make such
payments in accordance with the terms of the Pass Through Trust Agreement.
Each Certificateholder of this Certificate, by its acceptance hereof, agrees
that it will look solely to the income and proceeds from the Trust Property to
the extent available for distribution to such Certificateholder as provided in
the Pass Through Trust Agreement. This Certificate does not purport to
summarize the Pass Through Trust Agreement and reference is made to the Pass
Through Trust Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds, and duties evidenced hereby. A copy of the
Pass Through Trust Agreement may be examined during normal business hours at
the principal office of the Pass Through Trustee, and at such other places, if
any, designated by the Pass Through Trustee, by any Certificateholder upon
request.
The Pass Through Trust Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Companies and the rights of the Certificateholders under the
Pass Through Trust Agreement at any time by the Companies and the Pass Through
Trustee with the consent of the Certificateholders holding Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Pass Through Trust. Any such consent by the
Certificateholder of this Certificate shall be conclusive and binding on such
Certificateholder and upon all future Certificateholders of this Certificate
and of any Certificate issued upon the transfer hereof or in exchange hereof or
in lieu hereof whether or not notation of such consent is made upon this
Certificate. The Pass Through Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the
Certificateholders of any of the Certificates.
As provided in the Pass Through Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Register upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Pass Through Trustee in its
capacity as Registrar, or by any successor Registrar, in the Borough of
Manhattan, the City of New York, duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Pass Through Trustee and the
Registrar duly executed by the Certificateholder hereof or such
Certificateholder's attorney duly authorized in writing, and thereupon one or
more new Certificates of authorized denominations evidencing the same
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70
aggregate Fractional Undivided Interest in the Pass Through Trust will be
issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in minimum denominations of $1,000 and $1,000 integral multiples
thereof, except that one Certificate may be in a denomination of less than
$1,000. As provided in the Pass Through Trust Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Pass Through Trust, as requested by the
Certificateholder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Pass Through Trustee shall require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Pass Through Trustee, the Registrar, and any agent of the Pass
Through Trustee or the Registrar may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Pass Through Trustee, the Registrar, nor any such agent shall be affected by
any notice to the contrary.
The obligations and responsibilities created by the Pass Through Trust
Agreement and the Pass Through Trust created thereby shall terminate upon the
distribution to Certificateholders of all amounts required to be distributed to
them pursuant to the Pass Through Trust Agreement and the disposition of all
property held as part of the Trust Property.
A-5
71
[FORM OF THE PASS THROUGH TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
This is one of the Certificates referred to in the
within-mentioned Pass Through Trust Agreement.
_______________________________________,
as Pass Through Trustee
By:
_________________________________________________________
Authorized Officer
A-6
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EXHIBIT B
GUARANTEE
Union Tank Car Company, a Delaware corporation ("Union"),
which term includes any successor or assign under the Pass Through Trust
Agreement 1996-A2, dated as of May __, 1996, among Union, Procor Limited, a
Canadian corporation ("Procor"), and _______________________________________,
as Pass Through Trustee, (the "Pass Through Trust Agreement"), has irrevocably
and unconditionally guaranteed the due and punctual distribution to
Certificateholders of principal and interest payable with respect to the Procor
ETC (as defined in the Pass Through Trust Agreement), whether at stated
maturity or otherwise, and certain other obligations of Procor as specified in
Article XII of the Pass Through Trust Agreement and has agreed to pay any and
all costs and expenses (including reasonable attorneys' fees) incurred by the
Pass Through Trustee or any Certificateholder in enforcing any rights under
this Guarantee.
The obligations of Union to the Certificateholders and to the
Pass Through Trustee pursuant to this Guarantee and the Pass Through Trust
Agreement are expressly set forth in Article XII of the Pass Through Trust
Agreement and reference is hereby made to such for the precise terms of this
Guarantee.
No stockholder, officer, director or incorporator, as such,
past, present or future of Union shall have any liability under this Guarantee
by reason of his or its status as such stockholder, officer, director or
incorporator.
This is a continuing Guarantee and shall remain in full force
and effect and shall be binding upon Union and its successors and assigns until
full and final payment of all of the guaranteed obligations under the Pass
Through Trust Agreement and shall inure to the benefit of the successors and
assigns of the Pass Through Trustee and the Certificateholders and, in the
event of any transfer or assignment of rights by any Certificateholder or the
Pass Through Trustee, the rights and privileges herein conferred upon that
party shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof. This is a Guarantee
of payment and not of collectibility.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Certificate upon which
this Guarantee is noted shall have been executed by the Pass Through Trustee
under the Pass Through Trust Agreement by the manual signature of one of its
authorized officers.
THE TERMS OF ARTICLE XII OF THE PASS THROUGH TRUST AGREEMENT
ARE INCORPORATED HEREIN BY REFERENCE.
73
EXHIBIT C
FORM OF DTC
LETTER OF REPRESENTATIONS
74
SCHEDULE I
Equipment Notes
to be Issued under Principal
the Indenture: Amount Maturity
---------------------- ---------------- ---------------
On the Issuance Date $___________ _________
Subsequent to the ___________ _________
Issuance Date
Total $___________
75
SCHEDULE II
ETCs
to be Issued under Principal
Equipment Trust Agreements Amount Maturity
-------------------------- ---------------- ---------------
Procor ETC, Series 26CAN ____________ _________
Union ETC, Series 26 ____________ _________
Total ____________
76
Reconciliation and tie between Pass Through Trust Agreement 1996-A2 dated May
__, 1996 and the Trust Indenture Act of 1939. This reconciliation does not
constitute part of the Pass Through Trust Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
------------------- -------------------
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2; 6.3 (a) & (b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8; 7.9; 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.18
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.18
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9; 8.1; 8.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.4
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.4
313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6
316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . 1.4(c)
(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4
(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4(d)
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(a)
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.7