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PASS THROUGH TRUST AGREEMENT _____
Dated _________
among
UNION TANK CAR COMPANY,
[PROCOR LIMITED]
and
_________________,
as Pass Through Trustee
$________
______________
_______ Pass Through Trust
Pass Through Certificates,
Series _______
2
TABLE OF CONTENTS TO PASS THROUGH TRUST AGREEMENT _____
Section Page
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions ........................................................ 3
SECTION 1.2. Compliance Certificates and Opinions .............................. 13
SECTION 1.3. Form of Documents Delivered to Pass Through Trustee ................ 14
SECTION 1.4. Acts of 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 .. 16
SECTION 2.2. Declaration of Trust; Acceptance By Pass Through Trustee ........... 19
SECTION 2.3. Limitation of Powers ............................................... 19
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 ............. 21
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates ................. 22
SECTION 3.6. Persons Deemed Owners ............................................. 22
SECTION 3.7. Cancellation ...................................................... 22
SECTION 3.8. Limitation of Liability for Payments ............................... 22
SECTION 3.9. Book-Entry and Registered Certificates ............................ 23
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
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Section Page
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SECTION 4.1. Certificate Account and Special Payments Account ............................... 25
SECTION 4.2. Distribution from Certificate Account and Special Payments Account .............. 26
SECTION 4.3. Statements to Certificateholders ................................................ 27
SECTION 4.4. Investment of Special Payment Money ............................................ 28
ARTICLE V
THE COMPANIES
SECTION 5.1. Maintenance of Corporate Existence ............................................. 28
SECTION 5.2. Consolidation, Merger or Sale of Assets Permitted .............................. 29
ARTICLE VI
DEFAULT
SECTION 6.1. Events of Default .............................................................. 30
SECTION 6.2. Incidents of Sale of Equipment Notes and ETCs .................................. 32
SECTION 6.3. Judicial Proceedings Instituted by Pass Through Trustee ......................... 32
SECTION 6.4. Control by Certificateholders .................................................. 33
SECTION 6.5. Waiver of Past Defaults ......................................................... 34
SECTION 6.6. Undertaking to Pay Court Costs ................................................. 34
SECTION 6.7. Right of Certificateholders to Receive Payments Not to Be
Impaired ..................................................................... 34
SECTION 6.8. Certificateholders May Not Bring Suit Except Under
Certain Conditions .......................................................... 35
SECTION 6.9. Remedies Cumulative ............................................................. 35
ARTICLE VII
THE PASS THROUGH TRUSTEE
SECTION 7.1. Certain Duties and Responsibilities ............................................ 36
SECTION 7.2. Notice of Defaults ............................................................ 37
SECTION 7.3. Certain Rights of Trustee ..................................................... 37
SECTION 7.4. Not Responsible for Recitals or Issuance of Certificates ....................... 38
SECTION 7.5. May Hold Certificates ......................................................... 39
SECTION 7.6. Money Held in Pass Through Trust .............................................. 39
SECTION 7.7. Compensation and Reimbursement ................................................ 39
SECTION 7.8. Corporate Trustee Required; Eligibility ....................................... 40
SECTION 7.9. Resignation and Removal; Appointment of Successor .............................. 41
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Section Page
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SECTION 7.10. Acceptance of Appointment by Successor............................... 43
SECTION 7.11. Merger, Conversion, Consolidation or Succession to Business.......... 43
SECTION 7.12. Maintenance of Agencies.............................................. 43
SECTION 7.13. Money for Certificate Payments to Be Held in Pass Through Trust...... 45
SECTION 7.14. Registration of Equipment Notes and ETCs in Pass Through
Trustee's Name.................................................... 45
SECTION 7.15. Representations and Warranties of Pass Through Trustee............... 46
SECTION 7.16. Withholding Taxes; Information Reporting............................. 47
SECTION 7.17. Trustee's Liens...................................................... 47
SECTION 7.18. Preferential Collection of Claims.................................... 47
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................................ 48
SECTION 8.2. Preservation of Information; Communications to Certificateholders..... 48
SECTION 8.3. Reports by Pass Through Trustee....................................... 48
SECTION 8.4. Reports by the Company................................................ 48
ARTICLE IX
SUPPLEMENTS TO PASS THROUGH TRUST AGREEMENT
SECTION 9.1. Supplements to Pass Through Trust Agreement Without
Consent of Certificateholders...................................... 49
SECTION 9.2. Supplements to Pass Through Trust Agreement with
Consent of Certificateholders...................................... 50
SECTION 9.3. Documents Affecting Immunity or Indemnity............................. 51
SECTION 9.4. Execution of Supplements to Pass Through Trust Agreements............. 51
SECTION 9.5. Effect of Supplements to Pass Through Trust Agreement................. 51
SECTION 9.6. Conformity with Trust Indenture Act................................... 52
SECTION 9.7. Reference in Certificates to Supplements to Pass
Through Trust Agreements.............................................. 52
ARTICLE X
AMENDMENTS TO INDENTURE, NOTE DOCUMENTS,
EQUIPMENT TRUST AGREEMENTS AND ETC DOCUMENTS
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Section Page
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ARTICLE XI
TERMINATION OF PASS THROUGH TRUST
ARTICLE XII
GUARANTEE OF UNION
SECTION 12.1. Guarantee........................................... 54
SECTION 12.2. Execution and Delivery of Guarantee................. 55
SECTION 12.3. Limitation of Union's Liability..................... 55
SECTION 12.4. Guarantee Unconditional............................. 55
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1. Limitation on Rights of Certificateholders.......... 57
SECTION 13.2. Certificates Nonassessable and Fully Paid........... 57
SECTION 13.3. Notices............................................. 57
SECTION 13.4. Communication by Certificateholder with Other
Certificateholders................................. 59
SECTION 13.5. Governing Law....................................... 59
SECTION 13.6. Severability of Provisions.......................... 59
SECTION 13.7. Trust Indenture Act Controls........................ 59
SECTION 13.8. Effect of Headings and Table of Contents............ 59
SECTION 13.9. Successors and Assigns.............................. 59
SECTION 13.10. Benefits of Pass Through Trust Agreement............ 60
SECTION 13.11. Legal Holidays...................................... 60
SECTION 13.12. Counterparts........................................ 60
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 _______, dated __________,
is made with respect to the formation of the Union Tank Car
Company ______ 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
__________, a national banking association solely as Pass Through
Trustee and not in its individual capacity.
WITNESSETH:
[WHEREAS, a $_______ aggregate principal amount Equipment
Trust Certificate, Series ___ (together with the guarantee of
Union to be endorsed thereon, the "Union ETCs"), will be issued
pursuant to an Equipment Trust Agreement, dated ______ 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 _____ (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 ________, 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] [Procor];
WHEREAS, the Owner Trustee will lease the Equipment to
[Union] [Procor] 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]
[Procor] 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:
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
(a) For all purposes of this Pass Through Trust Agreement,
except as otherwise expressly provided or unless the context
otherwise requires:
(i) the terms used herein that are defined in this
Article have the meanings assigned to them in this Article,
and include the plural as well as the singular;
(ii) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(iii) all references in this Pass Through Trust
Agreement to designated "Articles", "Sections" and other
subdivisions are to the designated Articles, Sections and
other subdivisions of this Pass Through Trust Agreement; and
(iv) the words "herein", "hereof " and "hereunder" and
other words of similar import refer to this Pass Through
Trust Agreement as a whole and not to any particular
Article, Section or other subdivision.
(b) For all purposes of this Pass Through Trust Agreement,
the following capitalized terms have the following respective
meanings:
"Act," with respect to any Certificateholder, has the
meaning specified in Section 1.4.
"Affiliate" of any Person shall mean any other Person which
directly or indirectly controls, or is controlled by, or is under
a common control with, such Person. The term "control", as used
with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management policies of such Person, whether through the ownership
of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"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.
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"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 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ [, 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.
"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 _______.
"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
[its][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.
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"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.
"Equipment Trust Agreement" means [either of] the Union
Equipment Trust Agreement [or the Procor Equipment Trust
Agreement, each] dated ________, 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.
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"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. _____) (___), dated _______, 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.
"Initial Cut-off Date" means _________.
"Issuance Date" means the date of the issuance of the
Certificates.
"Lease" means the Equipment Lease Agreement (UTC Trust No.
______) (____) 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
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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) ▇▇▇▇,
Gerber & ▇▇▇▇▇▇▇▇▇, 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;
(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 _______________, 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. ______) (____), dated _________, 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.
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"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 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
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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
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
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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 __________, until payment of all the
Scheduled Payments to be made under the Equipment Notes and the
ETCs has been made.
"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,
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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 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).
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"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 _______.
"Subsequent Cut-off Date" means __________.
"Trust Indenture Act" means, except as otherwise provided in
Section 9.6, the Trust Indenture Act of 1939 as in force at the
date as of which this instrument was executed.
"Trust Property" means the 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
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(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 Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in
this Pass Through Trust Agreement relating to the proposed action
have been complied with and an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such
documents is specifically required by any provision of this Pass
Through Trust Agreement relating to such particular application
or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Pass Through Trust
Agreement (other than a certificate provided pursuant to Section
8.4(d)) shall include:
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
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(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
used;
(iii) a statement that, in the opinion of each such
individual, he or she has made such examination or
investigation as necessary to enable him or her to express
an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
SECTION 1.3. Form of Documents Delivered to Pass Through
Trustee. In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any Opinion of Counsel stated to be based on the opinion of
other counsel shall be accompanied by a copy of such other
opinion.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Pass Through Trust
Agreement, they may, but need not, be consolidated and form one
instrument.
SECTION 1.4. Acts of Certificateholders.
(a) Any direction, consent, waiver or other action provided
by this Pass Through Trust Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such
Certificateholders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments
are delivered to the Pass Through Trustee and, where it is hereby
expressly required, to the 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.
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(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the certificate of
any notary public or other officer of any jurisdiction authorized
to take acknowledgments of deeds or administer oaths that the
Person executing such instrument acknowledged to him the
execution thereof, or by an affidavit of a witness to such
execution sworn to before any such notary or such other officer
and where such execution is by an officer of a corporation or
association or a member of a partnership, on behalf of such
corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing
the same, may also be proved in any other reasonable manner which
the Pass Through Trustee deems sufficient. In the absence of bad
faith on the part of the Pass Through Trustee, an Officer's
Certificate may be deemed to be conclusively proved.
(c) In determining whether the Certificateholders of the
requisite Fractional Undivided Interests of Certificates
Outstanding have given any direction, consent or waiver (a
"Direction"), under this Pass Through Trust Agreement,
Certificates owned by 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.
(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
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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, 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
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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. 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
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Through Trustee on _______ 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, ______ 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 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.
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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 _______ 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, ________ 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 Notes, the ETCs or otherwise, or taking any action
with respect to any such Equipment once acquired).
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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 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
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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 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.
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,
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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
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Agency is no longer in the best interests of the Certificate
Owners, then the Pass Through Trustee shall notify all
Certificate Owners, through the Clearing Agency, of the
occurrence of any such event and of the availability of
Registered Certificates. Upon surrender to the Pass Through
Trustee of all 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
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permit withdrawals therefrom only as provided in this Pass
Through Trust Agreement. On each day when one or more Special
Payments (other than a Special Payment that represents the
proceeds of any sale pursuant to Article VI by the Pass Through
Trustee of an Equipment Note) are made under 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.
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(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 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
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of a Special Payment, it shall be sufficient if the notice sets
forth the other amounts to be distributed and states that any
Make-Whole Amount received will also be distributed.
If any prepayment of the Equipment Notes is canceled, the
Pass Through Trustee, as soon as possible after learning thereof,
shall cause notice thereof to be mailed to each Certificateholder
at its address as it appears on the Register.
SECTION 4.3. Statements to Certificateholders.
(a) On each Regular Distribution Date and Special
Distribution Date, the Pass Through Trustee will include with
each distribution of a Scheduled Payment or a Special Payment to
Certificateholders a statement, giving effect to such
distribution to be made on such 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
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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.
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
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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 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
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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 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
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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.
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
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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 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,
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(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.
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
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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 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,
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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.
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.
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(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 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
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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 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
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(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
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,
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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
(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
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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.
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
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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 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,
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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, 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
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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 ________, [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
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
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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 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
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(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.
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
-▇▇-
▇▇
▇▇▇▇▇▇, (▇) 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 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
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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 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
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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 ______, 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,
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
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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 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
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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;
(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.
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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.
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
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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.
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
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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 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
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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 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
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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 insolvency or
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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
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Certificateholder shall have any right (except as expressly
provided herein) to vote or in any manner otherwise control the
operation and management of the Trust Property, the Pass Through
Trust established hereunder, or the obligations of the parties
hereto, nor shall anything set forth herein, or contained in the
terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an
association.
SECTION 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: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇, Gerber & ▇▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Pass Through Trustee, to:
[address]
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.
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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 THE STATE OF NEW YORK 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
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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
_______ PASS THROUGH TRUST
Pass Through Certificate,
Series _______
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
______ Pass Through Trust (the "Trust") created by
_______________, a national banking association, as trustee (the
"Pass Through Trustee"), pursuant to a Pass Through Trust
Agreement ______ dated _______ (the "Pass Through Trust
Agreement") among the Pass Through Trustee, Union Tank Car
Company, a Delaware
69
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
Certificate is one of the duly authorized Certificates designated
as "Pass Through Certificates, Series ______" (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
_________, 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.
A-2
70
Distributions on this Certificate will be made by the Pass
Through Trustee by wire transfer of funds to the Person entitled
thereto, without the presentation or surrender of this
Certificate or the making of any notation hereon, provided,
however, that in the event Certificates are issued in the form of
Registered Certificates, distributions on this Certificate will
be made by check mailed to the Person entitled thereto. Except
as otherwise provided in the Pass Through Trust Agreement and
notwithstanding the above, the final distribution on this
Certificate will be made after notice mailed by the Pass Through
Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or
agency of the Pass Through Trustee specified in such notice.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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
_______ PASS THROUGH TRUST
By: ___________________,
as Pass Through Trustee
By: __________________________________________
Title:
A-3
71
[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
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72
new Certificates of authorized denominations evidencing the same
aggregate Fractional Undivided Interest in the Pass Through Trust
will be issued to the designated transferee or transferees.
The 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
73
[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
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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 ______, dated _______, 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.
75
EXHIBIT C
FORM OF DTC
LETTER OF REPRESENTATIONS
76
SCHEDULE I
Equipment Notes
to be Issued under Principal
the Indenture: Amount Maturity
------------------- -------- --------
On the Issuance Date $
Subsequent to the
Issuance Date
Total Notes $
Equipment Trust Certificates to be issued under
Equipment Trust Agreements
On the Issuance Date
UTC $
Procor $
Subsequent to the
Issuance Date
UTC $
Total ETC's $
Total Notes and ETC's $
77
SCHEDULE II
ETCs
to be Issued under Principal
Equipment Trust Agreements Amount Maturity
-------------------------- --------- --------
$
Total $
78
Reconciliation and tie between Pass Through Trust Agreement _____ dated
________ 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