Exhibit 4(a)(3)
PASS THROUGH TRUST AGREEMENT
Dated as of __________, ____
between
______________________________________,
as Pass Through Trustee
and
FEDERAL EXPRESS CORPORATION
CROSS REFERENCE SHEET
Between
Provisions of the Trust Indenture Act of 1939, as amended,
and the Pass Through Trust Agreement:
Section of
Section of the Act the Agreement
------------------ -------------
310(a)(1) and (2)...................................................10.02
310(a)(3)...........................................................10.05
310(a)(4)........................................................Art. VII
310(a)(5)...........................................................10.02
310(b)(i)-(iii)..............................................10.01, 10.03
310(b)(remainder).......................................................*
310(c).......................................................Inapplicable
311(a)..................................................................*
311(b)..............................................................10.06
311(c).......................................................Inapplicable
312(a).........................................................2.12, 4.01
312(b)..................................................................*
312(c)...............................................................4.02
313(a)...............................................................4.04
313(b)(1)...............................................................*
313(b)(2)...............................................................*
313(c)...............................................................4.04
313(d)..................................................................*
314(a)...............................................................4.03
314(b).......................................................Inapplicable
314(c)(1) and (2)...................................................13.07
314(c)(3)....................................................Inapplicable
314(d)(1)...............................................................*
314(d)(2)...............................................................*
314(d)(3)...............................................................*
314(e)..............................................................13.07
314(f).......................................................Inapplicable
315(a), (c) and (d).....................................................*
315(b)...............................................................7.11
315(e)..................................................................*
316(a)(1)......................................................7.09, 7.10
316(a)(2)...........................................................11.01
316(a)(last sentence)................................................6.04
316(b)...............................................................7.08
316(c)............................................................6.01(b)
317(a).........................................................7.03, 7.05
317(b)...............................................................3.04
318(a)..............................................................13.08
_____________
*Intentionally deleted.
TABLE OF CONTENTS
Page
----
PARTIES................................................................... 1
RECITALS.................................................................. 1
ARTICLE I
DEFINITIONS
ARTICLE II
ISSUANCE OF PASS THROUGH CERTIFICATES;
ACQUISITION OF EQUIPMENT CERTIFICATES
SECTION 2.01. Amount Unlimited; Issuable in Series; Series Supplements.... 11
SECTION 2.02. Acquisition of Equipment Certificates....................... 14
SECTION 2.03. Initial Certificateholders as Grantors...................... 16
SECTION 2.04. Limitation of Powers. ...................................... 16
SECTION 2.05. Execution of Pass Through Certificates. .................... 16
SECTION 2.06. Certificate of Authentication. ............................. 17
SECTION 2.07. Form and Denomination of Pass Through Certificates. ........ 17
SECTION 2.08. Registration, Transfer and Exchange. ....................... 17
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Pass Through
Certificates................................................ 18
SECTION 2.10. Cancellation of Pass Through Certificates; Destruction
Thereof..................................................... 19
SECTION 2.11. Temporary Pass Through Certificates......................... 20
SECTION 2.12. Pass Through Certificates Issuable in the Form of a
Registered Global Certificate............................... 20
ARTICLE III
CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 3.01. Covenants of the Company. .................................. 22
SECTION 3.02. Offices for Payments; Registrar............................. 23
SECTION 3.03. Representations and Warranties of the Pass Through
Trustee..................................................... 24
SECTION 3.04. Paying Agents. ............................................. 25
SECTION 3.05. No Representations or Warranties as to Documents............ 25
SECTION 3.06. Payments from Trust Property Only........................... 26
SECTION 3.07. Limitation of the Company's Liability. ..................... 26
ARTICLE IV
CERTIFICATEHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE PASS THROUGH TRUSTEE
SECTION 4.01. Certificateholder Lists; Ownership of Pass Through
Certificates. .............................................. 26
SECTION 4.02. Disclosure of Certificateholder Lists. ..................... 27
SECTION 4.03. Reports by the Company. .................................... 27
SECTION 4.04. Reports by the Pass Through Trustee. ....................... 27
ARTICLE V
RECEIPT AND DISTRIBUTION OF INCOME
AND PROCEEDS FROM THE TRUST PROPERTY
SECTION 5.01. Certificate Account and Special Payments Account............ 28
SECTION 5.02. Distributions from Certificate Account and Special Payments
Account..................................................... 28
SECTION 5.03. Statements to Certificateholders. .......................... 30
SECTION 5.04. Investment of Special Payment Moneys........................ 30
SECTION 5.05. Withholding Taxes. ......................................... 31
ARTICLE VI
CONCERNING THE CERTIFICATEHOLDERS
SECTION 6.01. Evidence of Action Taken by Certificateholders. ............ 31
SECTION 6.02. Proof of Execution of Instruments and of Holding of
Certificates. .............................................. 32
SECTION 6.03. Certificateholders to Be Treated as Owners. ................ 32
SECTION 6.04. Pass Through Certificates Owned by the Company and Related
Owner Trustees Deemed Not Outstanding. ..................... 32
SECTION 6.05. Right of Revocation of Action Taken......................... 33
SECTION 6.06. ERISA....................................................... 34
ARTICLE VII
REMEDIES OF PASS THROUGH TRUSTEE
AND CERTIFICATEHOLDERS
SECTION 7.01. Events of Default. ......................................... 34
SECTION 7.02. Incidents of Sale of Equipment Certificates. ............... 36
SECTION 7.03. Pass Through Trustee May Prove Debt. ....................... 37
SECTION 7.04. Remedies Cumulative......................................... 37
SECTION 7.05. Suits for Enforcement....................................... 38
SECTION 7.06. Discontinuance of Proceedings. ............................. 38
SECTION 7.07. Limitations on Suits by Certificateholders. ................ 38
SECTION 7.08. Unconditional Right of Certificateholders to Receive
Principal, Interest and Premium, and to Institute Certain
Suits. ..................................................... 39
SECTION 7.09. Control by Certificateholders............................... 39
SECTION 7.10. Waiver of Past Events of Default............................ 40
SECTION 7.11. Notice of Pass Through Defaults. ........................... 40
ARTICLE VIII
CONCERNING THE PASS THROUGH TRUSTEE
SECTION 8.01. Acceptance by Pass Through Trustee.......................... 41
SECTION 8.02. Pass Through Trustee's Liens. .............................. 41
SECTION 8.03. Certain Rights of the Pass Through Trustee. ................ 41
SECTION 8.04. Pass Through Trustee Not Responsible for Recitals........... 43
SECTION 8.05. Pass Through Trustee and Agents May Hold Pass Through
Certificates; Collections. ................................ 43
SECTION 8.06. Moneys Held by Pass Through Trustee......................... 43
SECTION 8.07. Right of Pass Through Trustee to Rely on Officer's
Certificate................................................. 43
SECTION 8.08. Compensation................................................ 44
ARTICLE IX
INDEMNIFICATION OF
PASS THROUGH TRUSTEE BY THE COMPANY
ARTICLE X
SUCCESSOR TRUSTEES
SECTION 10.01. Resignation and Removal of Pass Through Trustee;
Appointment of Successor................................... 45
SECTION 10.02. Persons Eligible for Appointment as Pass Through Trustee... 47
SECTION 10.03. Acceptance of Appointment by Successor Trustee............. 47
SECTION 10.04. Merger, Conversion, Consolidation or Succession to Business
of Pass Through Trustee. .................................. 48
SECTION 10.05. Appointment of Separate Pass Through Trustees. ............ 49
SECTION 10.06. Preferential Claims. ...................................... 51
ARTICLE XI
SUPPLEMENTS AND AMENDMENTS TO THIS
PASS THROUGH AGREEMENT AND OTHER DOCUMENTS
SECTION 11.01. Supplemental Agreements Without Consent of
Certificateholders......................................... 51
SECTION 11.02. Supplemental Agreements With Consent of
Certificateholders......................................... 53
SECTION 11.03. Effect of Supplemental Agreements.......................... 55
SECTION 11.04. Documents to Be Given to Trustee........................... 55
SECTION 11.05. Notation on Pass Through Certificates in Respect of
Supplemental Agreements.................................... 55
SECTION 11.06. Trust Indenture Act........................................ 55
SECTION 11.07. Revocation and Effect of Consents.......................... 55
SECTION 11.08. Amendments, Waivers, etc., of Related Indenture
Documents.................................................. 55
ARTICLE XII
TERMINATION OF PASS THROUGH TRUSTS;
UNCLAIMED MONEYS
SECTION 12.01. Termination of Pass Through Trusts......................... 56
SECTION 12.02. Application by Pass Through Trustee of Funds Deposited for
Payment of Pass Through Certificates....................... 57
SECTION 12.03. Repayment of Moneys Held by Paying Agent................... 57
SECTION 12.04. Transfer of Moneys Held by Pass Through Trustee and Paying
Agent Unclaimed for Two Years and Eleven Months............ 57
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Capacity in Which Acting................................... 57
SECTION 13.02. No Legal Title to Trust Property in Certificateholders..... 57
SECTION 13.03. Certificates Nonassessable and Fully Paid.................. 58
SECTION 13.04. Pass Through Agreement for the Benefit of the Company, the
Pass Through Trustee and the Certificateholders............ 58
SECTION 13.05. Limitation on Rights of Certificateholders................. 58
SECTION 13.06. Notices.................................................... 58
SECTION 13.07. Officer's Certificate and Opinion of Counsel;
Statements to Be Contained Therein......................... 59
SECTION 13.08. Conflict of Any Provision of Pass Through Agreement with the
Trust Indenture Act........................................ 60
SECTION 13.09. Severability............................................... 60
SECTION 13.10. No Oral Modifications or Continuing Waivers................ 61
SECTION 13.11. Successors and Assigns..................................... 61
SECTION 13.12. Headings. ................................................. 61
SECTION 13.13. Normal Commercial Relations. .............................. 61
SECTION 13.14. Governing Law; Counterpart Form. .......................... 61
SECTION 13.15. Distributions Due on Days Other than Business Days......... 61
SECTION 13.16. Registration of Equipment Certificates in Name of
Subordination Agent........................................ 61
Exhibit A Form of Pass Through Certificate
Exhibit B Form of Series Supplement
PASS THROUGH TRUST AGREEMENT
PASS THROUGH TRUST AGREEMENT dated as of __________, ____,
between FEDERAL EXPRESS CORPORATION, a Delaware corporation (the
"Company"), and ___________________________________, a ___________________, as
Pass Through Trustee (together with any successor hereunder or under any Pass
Through Trust as herein provided, the "Pass Through Trustee").
RECITALS
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article I hereof;
WHEREAS, from time to time the Company will enter into a Series
Supplement with the Pass Through Trustee named therein in accordance with
this Pass Through Agreement pursuant to which the Pass Through Trustee will
declare the creation of a separate Pass Through Trust for the benefit of
the Certificateholders of the Series of Pass Through Certificates to be
issued pursuant to such Pass Through Trust, and the initial
Certificateholders of such Series, as the grantors of such Pass Through
Trust, by their respective acceptances of such Pass Through Certificates,
will join in the creation of such Pass Through Trust;
WHEREAS, the Pass Through Certificates of each Series will
evidence fractional undivided interests in the Pass Through Trust pursuant
to which they will be issued, and will have no rights, benefits or interest
in respect of any other separate Pass Through Trust or the Trust Property
held in any such other Pass Through Trust subject, however, to the
provisions of any Intercreditor Agreement to which one or more Pass Through
Trusts may be a party;
WHEREAS, for each Pass Through Trust, the Pass Through Trustee
will purchase one or more issues of Equipment Certificates of the same
interest rate and ranking in respect of priority of payment as, and final
maturity dates not later than the final scheduled Regular Distribution Date
of, the Series of Pass Through Certificates to be issued in respect of such
Pass Through Trust and will hold such Equipment Certificates in trust as
Trust Property for the benefit of the Certificateholders of such Series;
WHEREAS, to facilitate the sale of Equipment Certificates to, and
the purchase of Equipment Certificates by, the Pass Through Trustee on
behalf of each such Pass Through Trust, the Company has duly authorized the
execution and delivery of this Pass Through Agreement and each Series
Supplement as the "issuer," as such term is defined in and solely for
purposes of the Securities Act, of the Pass Through Certificates to be
issued in respect of each Pass Through Trust and as the "obligor," as such
term is defined in and solely for purposes of the Trust Indenture Act, with
respect to all such Pass Through Certificates and is undertaking to perform
certain administrative duties hereunder and to pay the fees and expenses of
the Pass Through Trustee; WHEREAS, this Pass Through Agreement, as amended
or supplemented from time to time, is subject to the provisions of the
Trust Indenture Act and shall, to the extent applicable, be governed by
such provisions;
IT IS HEREBY COVENANTED AND AGREED by and between the
parties hereto as follows:
ARTICLE I
DEFINITIONS
The following terms (except as otherwise expressly provided or
unless the context otherwise clearly requires) for all purposes of this
Pass Through Agreement have the respective meanings specified in this
Article I, as amended or supplemented by the provisions of the Series
Supplement for a particular Series. All other terms used in this Pass
Through Agreement that are defined in the Trust Indenture Act or the
definitions of which in the Securities Act are referred to in the Trust
Indenture Act (except as herein otherwise expressly provided or unless the
context otherwise clearly requires), have the meanings assigned to such
terms in the Trust Indenture Act and in the Securities Act.
All accounting terms used and not expressly defined herein have
the meanings given to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means
the accounting principles that are generally accepted at the date or time
of any computation or otherwise at the date hereof.
The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Pass Through Agreement as a whole and not to
any particular Article, Section or other subdivision. References to
designated "Articles," "Sections," "subsections" and other subdivisions of
this Pass Through Agreement are to the designated Articles, Sections,
subsections and other subdivisions of this Pass Through Agreement. The
terms defined in this Article include the plural as well as the singular.
"Affiliate," has for any Person, the meaning specified in Rule
0-2 under the Trust Indenture Act.
"Business Day" means, for any Series, any day other than
Saturday, Sunday or other day on which banking institutions in the States
of _____________, New York or Tennessee, or any other state in which the
Pass Through Trustee or any Related Indenture Trustee or Related Owner
Trustee for the Pass Through Trust for such Series maintains an office for
the receipt or disbursement of funds for the transactions contemplated
herein or in any Indenture Documents for the Equipment Certificates that
constitute Trust Property of such Pass Through Trust, are authorized or
required by law to close.
"Certificate Account" means, for any Pass Through Trust, the
account or accounts created and maintained for such Pass Through Trust
pursuant to Section 5.01(a) hereof and the related Series Supplement.
"Certificateholder" means, for any Series, the Person who is
the registered holder of any Pass Through Certificate as evidenced on the
Register for such Series.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission of
the United States, or if at any time after the execution and delivery of
this Pass Through Agreement such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Company" means Federal Express Corporation, a Delaware
corporation, and its permitted successors and assigns hereunder.
"Controlling Party" means the Person entitled to act as such
pursuant to the terms of any Intercreditor Agreement.
"Corporate Trust Office" means the corporate trust office of
the Pass Through Trustee in the city in which the Pass Through Trustee's
corporate trust business shall be administered and which the Pass Through
Trustee shall have specified by notice in writing to the Company and the
Certificateholders of each Series.
"Cut-off Date for Pass Through Trust" means, for any Pass
Through Trust, the date specified as such in the related Series Supplement,
provided that in no event shall such Cut-off Date for Pass Through Trust be
later than __ days after the creation of such Pass Through Trust.
"Delivery Date" means, for any Pass Through Trust, the date
specified in the related Series Supplement for the purchase of the related
Equipment Certificates, which date may be delayed for any such Equipment
Certificates as provided in Section 2.02 hereof.
"Delayed Delivery Notice" means, for any Pass Through Trust, a
certificate signed by a Responsible Officer of the Company (i) requesting
that the Pass Through Trustee temporarily delay purchase of any related
Equipment Certificates to a date later than the applicable Issuance Date,
(ii) stating the amount of the purchase price of each such Equipment
Certificate and the aggregate purchase price of all such Equipment
Certificates, (iii) stating the reasons for such delay and (iv) with
respect to any Participation Agreement for such delayed Equipment
Certificates, either (1) setting or resetting the Delivery Date (which
shall be on or prior to the applicable Cut-off Date for Pass Through
Trust), or (2) indicating that such Delivery Date will be set by subsequent
written notice not less than one Business Day prior to such new Delivery
Date (which shall be on or prior to the applicable Cut-off Date for Pass
Through Trust).
"Delayed ECs" means, for any Pass Through Trust, any Equipment
Certificates that are the subject of a Delayed Delivery Notice.
"Deposit Trust" means a separate trust created pursuant to a
Deposit Trust Agreement.
"Deposit Trust Account" means, for any Deposit Trust, the
deposit account established and maintained for such Deposit Trust pursuant
to the related Deposit Trust Agreement.
"Deposit Trust Agreement" means an agreement in form and
substance reasonably satisfactory to the Company and the Pass Through
Trustee for the purposes described in Section 2.02 hereof, between the
Company, as depositor, the Pass Through Trustee and the Deposit Trustee.
"Deposit Trust Funds" means, for any Delayed ECs, an amount
equal to the purchase price of such Delayed ECs.
"Deposit Trustee" means, for any Deposit Trust, the Person,
acceptable to the Pass Through Trustee, defined as such in the related
Deposit Trust Agreement.
"Depositary" means, for any Series, the depository of the
Registered Global Certificate, if any, representing the Pass Through
Certificates of such Series and any successor to such depository appointed
by the Company pursuant hereto. Such depository initially shall be The
Depository Trust Company, a New York corporation, or any successor thereto
registered under the Exchange Act or other applicable statute or
regulation.
"Distribution Date" means, for any Series, any Regular
Distribution Date or Special Distribution Date or both for such Series.
"Dollars" and "$" mean lawful currency of the United States of
America.
"Equipment Certificate" means, for any Pass Through Trust, any
of the Equipment Trust Certificates or Equipment Purchase Certificates,
issued pursuant to an Indenture and described in, or on a schedule attached
to, the Series Supplement for such Pass Through Trust.
"Equipment Purchase Certificate" means, for any Pass Through
Trust, any "Equipment Purchase Certificate," as such term is defined in the
related Indenture, issued by the Company pursuant to an Indenture and
described in, or on a schedule attached to, the Series Supplement for such
Pass Through Trust, which is to be held by the Pass Through Trustee as part
of the Trust Property of such Pass Through Trust.
"Equipment Trust Certificate" means, for any Pass Through
Trust, any "Equipment Trust Certificate," as such term is defined in the
related Indenture, issued by an Owner Trustee pursuant to such Indenture
and described in, or on a schedule attached to, the Series Supplement for
such Pass Through Trust, which is to be held by the Pass Through Trustee as
part of the Trust Property of such Pass Through Trust.
"Event of Default" has the meaning specified in Section
7.01 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fractional Undivided Interest" means, for any Pass Through
Certificate, the fractional undivided interest in the related Pass Through
Trust that is evidenced thereby.
"Government Obligations" means direct obligations of the United
States of America which are not callable, redeemable or payable prior to
maturity, in whole or in part, directly or indirectly, by any Person.
"Indenture" means (i) for any Equipment Trust Certificate, the
trust indenture and security agreement among the Indenture Trustee, the
Owner Trustee and, if applicable, the Company pursuant to which such
Equipment Trust Certificate is issued and (ii) for any Equipment Purchase
Certificate, the trust indenture and security agreement between the
Indenture Trustee and the Company pursuant to which such Equipment Purchase
Certificate is issued, in each case as such agreement may be modified,
supplemented or amended from time to time in accordance with the related
Indenture Documents.
"Indenture Default" means, for any Indenture, any event or
condition defined as a "Default" under such Indenture.
"Indenture Documents" means (i) for any Equipment Trust
Certificate, the related Indenture, the related Trust Agreement and the
related Lease, in each case as defined in such Indenture, and the related
Participation Agreement and (ii) for any Equipment Purchase Certificate,
the related Indenture, the related Indenture Addendum, as defined in such
Indenture, and the related Participation Agreement.
"Indenture Event of Default" means, for any Indenture, any
event or condition defined as an "Indenture Event of Default" in such
Indenture.
"Indenture Trustee" means, for any Equipment Certificate, the
Person defined as such in the related Indenture.
"Initial Regular Distribution Date" means, for any Pass Through
Trust, the first Regular Distribution Date on which a Scheduled Payment is
to be made following the Issuance Date for such Pass Through Trust.
"Intercreditor Agreement" means any agreement by and among one
or more Pass Through Trusts, one or more Liquidity Providers and a
Subordination Agent providing for the distribution of payments made in
respect of Equipment Certificates held by such Pass Through Trusts.
"Issuance Date" means, for any Pass Through Trust, the date of
the issuance of the related Pass Through Certificates.
"Lease" means, for any Equipment Trust Certificate, the
agreement between the Company, as lessee, and an Owner Trustee, as lessor,
that is defined as the "Lease" in the related Indenture.
"Letter of Representations" means, for any Series, a letter
from the Company and the Pass Through Trustee to, and accepted by, the
Depositary in form and substance satisfactory to the Company and the Pass
Through Trustee for the purposes of the related Series Supplement, as such
letter may be modified or supplemented, or any successor letter thereto.
"Lien" means any mortgage, pledge, lien, charge, disposition of
title, encumbrance, lease or security interest.
"Liquidity Facility" means, with respect to the Pass Through
Certificates of any Series, any revolving credit agreement or similar
facility or letter of credit relating to the Pass Through Certificates of
such series between a Liquidity Provider and a Subordination Agent, as
amended, replaced, supplemented or otherwise modified from time to time in
accordance with its terms and the terms of any Intercreditor Agreement.
"Liquidity Provider" means, with respect to the Pass Through
Certificates of any Series, a bank or other financial institution that
agrees to provide Liquidity Facilities with respect to the Pass Through
Certificates of such Series for the benefit of the Certificateholders.
"Majority in Interest of Certificateholders" means, for any
Series at any time, Pass Through Certificates of such Series then
Outstanding (or the proxy therefor) representing in the aggregate not less
than a majority of the aggregate Fractional Undivided Interests of the Pass
Through Certificates then Outstanding under the related Pass Through Trust.
"Officer's Certificate" means a certificate signed by a
Responsible Officer of the Company, any Indenture Trustee or any Owner
Trustee, as the case may be, delivered to the Pass Through Trustee. Each
such certificate shall include the statements provided for in Section 13.07
hereof.
"Opinion of Counsel" means a written opinion of legal counsel, who
in the case of counsel (a) for the Company may be (i) an attorney employed
by the Company who is generally empowered to deliver such written opinions,
or (ii) other counsel designated by the Company and reasonably satisfactory
to the Pass Through Trustee and (b) for any Owner Trustee or Indenture
Trustee, an attorney selected by such Person and reasonably satisfactory to
the Pass Through Trustee.
"Outstanding" means, when used with respect to Pass Through
Certificates of any Series, as of the date of determination and subject to
the provisions of Section 6.04 hereof, all Pass Through Certificates
theretofore authenticated and delivered for such Series, with the exception
of the following:
(i) Pass Through Certificates theretofore cancelled by the Pass
Through Trustee or delivered to the Pass Through Trustee for
cancellation pursuant to Section 2.10 hereof;
(ii) All Pass Through Certificates of such Series if money in
the amount required to make the final distribution thereon in
accordance with Section 12.01 hereof has been theretofore deposited
with the Pass Through Trustee in trust for the Certificateholders of
such Series pending such final distribution; and
(iii) Pass Through Certificates in exchange for or in lieu of
which other Pass Through Certificates have been authenticated and
delivered pursuant to Article II hereof.
"Overdue Scheduled Payment" means, for any Pass Through
Trust, any Scheduled Payment that is not received within seven Business
Days after the Regular Distribution Date applicable to such Scheduled
Payment.
"Owner Participant" means, for any Equipment Trust
Certificate, the Person defined as such in the related Indenture.
"Owner Trustee" means, for any Equipment Trust
Certificate, the Person defined as such in the related Indenture.
"Participation Agreement" means (i) for any Equipment
Trust Certificate, the agreement among the Company, the Owner Participant,
the Owner Trustee, the Indenture Trustee, the Pass Through Trustee and, if
applicable, each Original Loan Participant (as defined in such
Participation Agreement), that is defined as the "Participation Agreement"
in the related Indenture and pursuant to which the Pass Through Trustee
agrees to purchase such Equipment Trust Certificate upon the issuance
thereof by such Owner Trustee and (ii) for any Equipment Purchase
Certificate, the agreement among the Company, the Indenture Trustee and the
Pass Through Trustee that is defined as the "Transfer Agreement" in the
related Indenture and pursuant to which the Pass Through Trustee agrees to
purchase such Equipment Purchase Certificate from the Banks (as defined in
such Participation Agreement).
"Pass Through Agreement," "this Pass Through Agreement" and
other like words mean this Pass Through Trust Agreement as the same may be
modified, supplemented or amended from time to time in accordance with the
provisions hereof, but does not include, unless otherwise specified, any
Series Supplement.
"Pass Through Certificate" means, for any Series, any of
the certificates executed, authenticated and delivered for such Series by
the Pass Through Trustee, in accordance with this Pass Through Agreement
and pursuant to the related Series Supplement.
"Pass Through Default" means, for any Pass Through Trust,
an Event of Default or an event or condition that, with the giving of
notice or the lapse of time or both, would become an Event of Default.
"Pass Through Trust" means a separate trust created in
accordance with this Pass Through Agreement by a Series Supplement
incorporating the provisions hereof, as such provisions may be amended or
supplemented thereby, the estate of which consists of the related Trust
Property.
"Pass Through Trustee" means the institution executing
this Pass Through Agreement as Pass Through Trustee, or its successor in
interest, and any successor or other trustee appointed as provided herein;
provided that if the same institution is not acting as the Pass Through
Trustee in respect of all Series, the phrase "the Pass Through Trustee"
shall, unless the context otherwise requires, mean, as to any Series, the
institution named in the applicable Series Supplement as Pass Through
Trustee in respect of such Series, or its successor in interest and any
successor or other trustee appointed as provided herein.
"Paying Agent" has the meaning set forth in Section 3.04
hereof.
"Permitted Investments" means (a) direct obligations of
the United States of America or obligations fully guaranteed by the United
States of America; (b) commercial paper rated A-1/P-1 by Standard & Poor's
Ratings Group and ▇▇▇▇▇'▇ Investors Service, Inc., respectively or, if such
ratings are unavailable, rated by any nationally recognized rating
organization in the United States equal to the highest rating assigned by
such rating organization; (c) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers;
and (d) overnight repurchase agreements with respect to the securities
described in clause (a) above entered into with an office of a bank or
trust company which is located in the United States of America of any bank
or trust company which is organized under the laws of the United States or
any state thereof and has capital, surplus and undivided profits
aggregating at least $500 million.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, nonincorporated
organization or government or any agency or political subdivision thereof.
"Pool Balance" means, for any Pass Through Trust, as of
any date of determination the aggregate unpaid principal amount of the
Equipment Certificates that constitute Trust Property of such Pass Through
Trust on such date plus the amount of the principal payments on such
Equipment Certificates held by the Pass Through Trustee and not yet
distributed plus the amount of any moneys transferred to the Company and
deposited in the related Deposit Trust Account (other than earnings thereon
and without giving effect to any losses on investments thereof). The Pool
Balance as of any Regular Distribution Date or Special Distribution Date
shall be computed after giving effect to the payment of principal, if any,
on such Equipment Certificates and the distribution thereof being made on
that date.
"Pool Factor" means, unless otherwise provided in the
Series Supplement, for any Pass Through Trust, as of any date of
determination the quotient (rounded to the seventh decimal place) computed
by dividing (i) the Pool Balance by (ii) the aggregate original amount of
the Pass Through Certificates of the related Series. The Pool Factor as of
any Regular Distribution Date or Special Distribution Date shall be
computed after giving effect to the payment of principal, if any, on such
Equipment Certificates and the distribution thereof being made on that
date.
"Record Date," for any Series, means, (i) for any Regular
Distribution Date, the date specified in the related Series Supplement as
the Record Date for such Regular Distribution Date and (ii) for any Special
Distribution Date, the 15th day preceding such Special Distribution Date,
in any event, whether or not such date is a Business Day.
"Register" has the meaning set forth in Section 3.02
hereof.
"Registered Global Certificate" means, for any Series,
each Pass Through Certificate, if any, issued to the Depositary in
accordance with Article II hereof and bearing the legend prescribed in
Section 2.12(a) hereof.
"Registrar" has the meaning set forth in Section 3.02
hereof.
"Regular Distribution Date" means, for any Pass Through
Trust, any date specified in the related Series Supplement for the
distribution of any Scheduled Payment from such Pass Through Trust to the
related Certificateholders.
"Related Indenture Trustee" means, for any Pass Through
Trust, any Indenture Trustee under an Indenture relating to any Equipment
Certificate that constitutes Trust Property thereof, and "Related Indenture
Trustees" means all such Indenture Trustees for all such Equipment
Certificates constituting Trust Property thereof.
"Related Owner Participant" means, for any Pass Through
Trust, any Owner Participant under a Trust Agreement relating to any
Equipment Trust Certificate that constitutes Trust Property, and "Related
Owner Participants" means all such Owner Participants for all such
Equipment Trust Certificates constituting Trust Property thereof.
"Related Owner Trustee" means, for any Pass Through
Trust, any Owner Trustee under a Trust Agreement relating to any Equipment
Trust Certificate that constitutes Trust Property, and "Related Owner
Trustees" means all such Owner Trustees for all such Equipment Trust
Certificates constituting Trust Property thereof.
"Responsible Officer" means the president or any vice
president; or, in the case of the Pass Through Trustee, an officer in its
Corporate Trust Office.
"Scheduled Payment" means, for any Pass Through Trust,
any scheduled payment of principal of (whether by installment or redemption
or otherwise) and interest on any Equipment Certificate that constitutes
Trust Property thereof to be made in the amounts and on the date set forth
for such payment in such Equipment Certificate, but does not include any
Overdue Scheduled Payment.
"Securities Act" means the Securities Act of 1933, as
amended.
"Series" means a separate series of Pass Through
Certificates issued pursuant to this Pass Through Agreement and a Series
Supplement.
"Series Supplement" means an agreement executed and
delivered by the Company and the Pass Through Trustee in accordance with
this Pass Through Agreement, incorporating the provisions hereof, as
amended or supplemented thereby, and creating a separate Pass Through Trust
for the benefit of the Certificateholders of the Series of Pass Through
Certificates to be issued under such Pass Through Trust.
"Special Distribution Date" means, for any Pass Through
Trust, any date specified in the related Series Supplement for the
distribution of any Special Payment from such Pass Through Trust to the
related Certificateholders.
"Special Payment" means, for any Pass Through Trust, any
payment (including any Overdue Scheduled Payment) other than a Scheduled
Payment on any Equipment Certificate that constitutes Trust Property
thereof, any proceeds from the sale of such Equipment Certificate pursuant
to Article VII hereof or any payment by the Company pursuant to the last
two paragraphs of Section 2.02(b) hereof.
"Special Payments Account" means, for any Pass Through
Trust, the account or accounts created and maintained for such Pass Through
Trust pursuant to Section 5.01(b) hereof and the related Series Supplement.
"Specified Investments" has, for any Deposit Trust, the
meaning set forth for such term in the related Deposit Trust Agreement.
"Subordination Agent" shall have the meaning specified
therefor in any Intercreditor Agreement.
"Triggering Event" shall have the meaning specified
therefor in any Intercreditor Agreement.
"Trust Agreement" means, for any Equipment Trust
Certificate, the agreement between an Owner Trustee and an Owner
Participant that is defined as the "Trust Agreement" in the related
Indenture.
"Trust Indenture Act" means (except as otherwise provided
in Section 11.06) the Trust Indenture Act of 1939, as amended, as in force
at the date as of which this Pass Through Agreement was first qualified
under such Act.
"Trust Property" means, for any Pass Through Trust, (i)
all money, instruments, including the related Equipment Certificates, and
other property held as the property of such Pass Through Trust, including
all distributions thereon and proceeds thereof and (ii) all rights of the
Pass Through Trust and the Pass Through Trustee, on behalf of the Pass
Through Trust, under any Intercreditor Agreement or any Liquidity Facility,
including, without limitation, all rights to receive certain payments
thereunder, and all monies paid to the Pass Through Trustee on behalf of
the Pass Through Trust pursuant to any Intercreditor Agreement or any
Liquidity Facility.
ARTICLE II
ISSUANCE OF PASS THROUGH CERTIFICATES;
ACQUISITION OF EQUIPMENT CERTIFICATES
SECTION 2.01. Amount Unlimited; Issuable in Series; Series
Supplements. (a) The aggregate amount of Pass Through Certificates that
may be authenticated and delivered in accordance with this Pass Through
Agreement is unlimited.
The Pass Through Certificates may be issued from time to time
in one or more Series, each Series relating to a separate Pass Through
Trust, and shall be designated generally as the "Pass Through
Certificates," with further designations added or incorporated in the title
for the Pass Through Certificates of any Series as specified in the related
Series Supplement. Each Pass Through Certificate shall bear upon its face
the designation so selected for the Series to which it belongs. All Pass
Through Certificates of the same Series shall be substantially identical
except as to denomination and as may otherwise be provided in the related
Series Supplement.
The Pass Through Certificates of each Series will evidence
fractional undivided interests in the separate Pass Through Trust formed by
the related Series Supplement, and, except as may be contained in any
Intercreditor Agreement, will have no rights, benefits or interest in
respect of any other separate Pass Through Trust or the Trust Property held
in such other Pass Through Trust. All Pass Through Certificates of the
same Series shall be in all respects equally and ratably entitled to the
benefits of the related Pass Through Trust without preference, priority, or
distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Pass
Through Agreement and the related Series Supplement.
(b) The following matters shall be established for the Pass
Through Certificates of each Series in a Series Supplement executed and
delivered by the Company and the Pass Through Trustee:
(1) the formation of the Pass Through Trust in which the
Pass Through Certificates of such Series evidence fractional
undivided interests and its designation (which designation shall
distinguish such Pass Through Trust from each other Pass Through
Trust);
(2) the specific title of the Pass Through Certificates of
such Series (which title shall distinguish the Pass Through
Certificates of the Series from each other Series);
(3) subject to Section 2.02(a) hereof, any limit upon the
aggregate amount of the Pass Through Certificates of such Series
that may be authenticated and delivered under this Pass Through
Agreement;
(4) the related Cut-off Date for Pass Through Trust;
(5) the related Regular Distribution Dates;
(6) the related Special Distribution Dates;
(7) if other than as provided in Section 3.02 hereof, the
Registrar or the Paying Agent for such Series, including any Co-
Registrar or additional Paying Agent;
(8) if other than as provided in Section 2.07 hereof, the
denominations in which the Pass Through Certificates of such
Series are issuable;
(9) the specific form of the Pass Through Certificates of
such Series and whether or not the Pass Through Certificates of
such Series are to be issued as one or more Registered Global
Certificates and if the Pass Through Certificates are to be
issued as one or more Registered Global Certificates, the
Depositary for the Registered Global Certificates and the Letter
of Representations;
(10) a description of the Equipment Certificates to be
acquired by and held in the related Pass Through Trust and of the
related Indenture Documents;
(11) provisions with respect to the terms for which the
definitions set forth in Article I hereof permit or require
further specification in the related Series Supplement;
(12) whether the Pass Through Certificates are eligible for
purchase by ERISA Plans (as defined in Section 6.06 hereof) and,
if applicable, any restrictions on purchases of Pass Through
Certificates by ERISA Plans;
(13) the acceptance of appointment by the institution named
to act as Pass Through Trustee with respect to such Series if
different from the institution executing this Pass Through
Agreement or its successor;
(14) whether such series will be subject to an
Intercreditor Agreement and, if so, the specific designation of
such Intercreditor Agreement;
(15) any other terms of the Pass Through Certificates of
such Series (which terms shall not be inconsistent with the
provisions of the Trust Indenture Act as in effect at the time of
the execution and delivery of such Series Supplement or adversely
affect the interest of the Certificateholders of any Series
outstanding at the time), including any terms that may be
required or advisable under United States laws or regulations or
advisable in connection with the marketing of the Series;
(16) a description of:
(a) the Equipment Certificates to be purchased by such Pass
Through Trust, including the period or periods within
which, the price or prices at which such Certificates may
or must be repaid in whole or in part, by the Company
or, with respect to leased aircraft certificates, the
Related Owner Trustee,
(b) the payment priority of such Equipment Certificates in
relation to any other Equipment Certificates issued with
respect to the related Aircraft,
(c) any additional security or liquidity enhancements
therefor,
(d) any intercreditor issues between or among the holders
of Equipment Certificates having different priorities issued
by the same Owner Trustee, and
(e) other specific terms of the Equipment Certificates
during any pre-funding period;
(17) a description of any cross-default or
cross-collateralization provisions in the related Indenture; and
(18) a description of any subordination provisions among the
holders of Pass Through Certificates, including any cross-
subordination provisions among the holders of Pass Through
Certificates in separate Pass Through Trusts.
(c) At any time and from time to time after the execution and
delivery of this Pass Through Agreement, the Company and the Pass Through
Trustee may execute and deliver one or more Series Supplements, each
forming a separate Pass Through Trust and establishing the terms of the
Pass Through Certificates of the related Series, and pursuant to which the
Pass Through Certificates of such Series shall be executed, authenticated
and delivered by the Pass Through Trustee to the Person specified by the
Company upon request of the Company and upon satisfaction of any conditions
precedent set forth in the related Series Supplement on the Issuance Date
for such Series.
SECTION 2.02. Acquisition of Equipment Certificates. (a)
Pass Through Certificates of a Series executed, authenticated and delivered
by the Pass Through Trustee upon request of the Company in accordance with
Section 2.01(c) hereof shall equal the aggregate principal amount of the
Equipment Certificates to be purchased by the Pass Through Trustee pursuant
to the related Participation Agreements, and evidence the entire ownership
of the related Pass Through Trust. The Pass Through Trustee shall issue
and sell such Pass Through Certificates, in authorized denominations and in
such Fractional Undivided Interests, so as to result in the receipt of
consideration in an amount equal to the aggregate principal amount of such
Equipment Certificates and, concurrently therewith, the Pass Through
Trustee shall purchase, pursuant to the terms and conditions of the
Participation Agreements, the Equipment Certificates (except Delayed ECs,
if any) at a purchase price equal to the amount of such consideration so
received. Except as provided in Sections 2.08 and 2.09 hereof, the Pass
Through Trustee shall not execute, authenticate or deliver Pass Through
Certificates of such Series in excess of the aggregate amount determined in
accordance with this subsection (a). The provisions of this subsection (a)
are subject to the provisions of subsection (b) below.
(b) Unless otherwise specified in the Series Supplement, if,
on or prior to an Issuance Date, the Company delivers to the Pass Through
Trustee a Delayed Delivery Notice relating to one or more Delayed ECs, then
(i) the Pass Through Trustee shall postpone the purchase of the specified
Delayed ECs, (ii) the Company, the Pass Through Trustee and the Deposit
Trustee shall form a Deposit Trust, (iii) the Pass Through Trustee shall
transfer to the Company the Deposit Trust Funds relating to such Delayed
ECs and (iv) the Company shall deposit such Deposit Trust Funds into the
Deposit Trust Account for such Deposit Trust. The Deposit Trust Funds so
deposited shall be invested pursuant to the related Deposit Trust Agreement
by the Deposit Trustee at the direction and risk of, and for the benefit
of, the Company in Specified Investments. The Company agrees that
withdrawals shall be made from any Deposit Trust Account only as provided
in the related Deposit Trust Agreement.
Upon notice from the Company on one or more occasions that any
Delayed ECs are available for purchase and upon the satisfaction of the
closing conditions specified in the applicable Participation Agreements and
the related Series Supplement on or prior to the related Cut-off Date for
Pass Through Trust, the Company shall cause the related Deposit Trust Funds
to be withdrawn from the related Deposit Trust Account and paid to the Pass
Through Trustee, free and clear of any Lien under the Deposit Trust
Agreement, and the Pass Through Trustee shall purchase the applicable
Delayed ECs with such Deposit Trust Funds. The purchase price for such
Delayed ECs shall equal the principal amount of such Delayed ECs.
On the Initial Regular Distribution Date for any Pass Through
Trust for which Delayed ECs are purchased pursuant to this subsection, the
Company shall pay, in immediately available funds, to the Pass Through
Trustee an amount equal to the interest that would have accrued on any
Delayed ECs purchased after the related Issuance Date as if such Delayed
ECs had been purchased on such Issuance Date, from such Issuance Date to,
but not including, the date of the purchase of such Delayed ECs for such
Pass Through Trust.
If the Company notifies the Pass Through Trustee prior to any
Cut-off Date for Pass Through Trust that any related Delayed ECs will not
be issued on or prior to such Cut-off Date for Pass Through Trust for any
reason, on the next Special Distribution Date for such Pass Through Trust
occurring more than 20 days following the date of such notice (i) the
Company shall (A) pay to the Pass Through Trustee for deposit in the
related Special Payments Account, in immediately available funds, an amount
equal to the interest that would have accrued on the Delayed ECs designated
in such notice at a rate equal to the interest rate applicable to the
related Series from the related Issuance Date to, but not including, such
Special Distribution Date and (B) cause an amount equal to the amount of
Deposit Trust Funds that would have been used to purchase such Delayed ECs
to be withdrawn from the related Deposit Trust Account and paid to the Pass
Through Trustee, free and clear of any Lien under the Deposit Trust
Agreement, and (ii) the Pass Through Trustee shall deposit in the related
Special Payments Account, upon receipt from the Deposit Trustee pursuant to
the related Deposit Trust Agreement, the amount received pursuant to clause
(i)(B) above, and the amount paid by the Company pursuant to clause (i)(A)
above, and such amounts shall be distributed as a Special Payment in
accordance with the provisions hereof.
If, on the Cut-off Date for Pass Through Trust for any Pass
Through Trust, an amount equal to less than all of the Deposit Trust Funds
(other than Deposit Trust Funds referred to in the immediately preceding
paragraph) has been used to purchase related Delayed ECs, on the next
Special Distribution Date for such Pass Through Trust occurring more than
20 days following such Cut-off Date for Pass Through Trust (i) the Company
shall (A) pay to the Pass Through Trustee for deposit in the related
Special Payments Account, in immediately available funds, an amount equal
to the interest that would have accrued on such Delayed ECs contemplated to
be purchased with such unused Deposit Trust Funds (other than any Deposit
Trust Funds referred to in the immediately preceding paragraph) but not so
purchased at a rate equal to the interest rate applicable to the related
Series from the related Issuance Date to, but not including, such Special
Distribution Date and (B) cause such unused Deposit Trust Funds to be
withdrawn from the related Deposit Trust Account and paid to the Pass
Through Trustee, free and clear of any Lien under the Deposit Trust
Agreement, and (ii) the Pass Through Trustee shall deposit in such Special
Payments Account, upon receipt from the Deposit Trustee pursuant to the
related Deposit Trust Agreement, such unused Deposit Trust Funds received
pursuant to clause (i)(B) above, and the amount paid by the Company
pursuant to clause (i)(A) above, and such amounts shall be distributed as a
Special Payment in accordance with the provisions hereof.
SECTION 2.03. Initial Certificateholders as Grantors. By its
acceptance of any Pass Through Certificate of any Series issued to it under
the related Pass Through Trust, each initial Certificateholder of such
Series as grantor of such Pass Through Trust shall join in the creation and
declaration of such Pass Through Trust.
SECTION 2.04. Limitation of Powers. Each Pass Through Trust
shall be constituted solely for the purpose of making the investment in the
Equipment Certificates provided for in the related Series Supplement and,
except as set forth herein or in such Series Supplement, the Pass Through
Trustee shall not be authorized or empowered to acquire any other
investments or engage in any other activities and, in particular, the Pass
Through Trustee shall not be authorized or empowered to do anything that
would cause such Pass Through Trust to fail to qualify as a "grantor trust"
for federal income tax purposes (including as subject to this restriction,
acquiring any Aircraft (as defined in the respective related Indentures) by
bidding such Equipment Certificates or otherwise, or taking any action with
respect to any such Aircraft once acquired).
SECTION 2.05. Execution of Pass Through Certificates. The
Pass Through Certificates of each Series shall be signed on behalf of the
Pass Through Trustee by an authorized officer of the Pass Through Trustee.
Such signatures may be the manual or facsimile signatures of such officer
and minor errors or defects in any reproduction of any such signature shall
not affect the validity or enforceability of any Pass Through Certificate
which has been duly authenticated and delivered by the Pass Through
Trustee.
If any officer of the Pass Through Trustee who signs any of the
Pass Through Certificates subsequently ceases to be such officer before the
Pass Through Certificate so signed is authenticated and delivered or
disposed of by the Pass Through Trustee, such Pass Through Certificate
nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Pass Through Certificate had not ceased to be
such officer of the Pass Through Trustee; and any Pass Through Certificate
may be signed on behalf of the Pass Through Trustee by such person or
persons as, at the actual date of the execution of such Pass Through
Certificate, are the proper officers of the Pass Through Trustee, although
at the date of the execution and delivery of the related Series Supplement
any such person was not such officer.
SECTION 2.06. Certificate of Authentication. The Pass Through
Trustee shall duly authenticate and deliver Pass Through Certificates for
each Series in authorized denominations equaling the aggregate principal
amount of the Equipment Certificates to be purchased for the related Pass
Through Trust by the Pass Through Trustee pursuant to the related
Participation Agreements, and evidencing the entire ownership of the
related Pass Through Trust. Only such Pass Through Certificates of such
Series as shall bear thereon a certificate of authentication substantially
in the form set forth in Exhibit A, executed by the Pass Through Trustee by
manual or facsimile signature of one of its authorized officers, shall be
entitled to the benefits of the related Pass Through Trust or be valid or
obligatory for any purpose. Such certificate by the Pass Through Trustee
upon any Pass Through Certificate for such Series executed by the Pass
Through Trustee shall be conclusive evidence that the Pass Through
Certificate so authenticated has been duly authenticated and delivered
hereunder and that the Certificateholder, as evidenced on the Register for
such Series, is entitled to the benefits of the related Pass Through Trust.
SECTION 2.07. Form and Denomination of Pass Through
Certificates. The Pass Through Certificates of each Series shall be
substantially in the form set forth in Exhibit A hereto. The Pass Through
Certificates shall be issuable as registered securities without coupons and
shall be numbered, lettered, or otherwise distinguished in such manner or
in accordance with such plans as set forth in the related Series
Supplement. The Pass Through Certificates of each Series shall be issued
in minimum denominations of $1,000 and integral multiples thereof and shall
be dated the date of their authentication.
The Pass Through Certificates of any Series may be issued with
appropriate insertions, omissions, substitutions and variations, and may
have imprinted or otherwise reproduced thereon such legend, not
inconsistent with the provisions of this Pass Through Agreement or the
related Series Supplement, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with the rules of the
Depositary or any securities market in which such Pass Through Certificates
are admitted to trading, or to conform to general usage.
SECTION 2.08. Registration, Transfer and Exchange. The Pass
Through Trustee will keep at each office or agency to be maintained for any
Series for the purpose as provided in Section 3.02 hereof a Register in
which, subject to such reasonable regulations as it may prescribe, it will
register, and will register the transfer of, Pass Through Certificates of
the related Series as provided in this Article II. Such Register shall be
in written form in the English language.
Upon due presentation for registration of transfer of any Pass
Through Certificate of the related Series at any such office or agency, the
Pass Through Trustee shall execute, authenticate and deliver in the name of
the transferee or transferees a new Pass Through Certificate of such Series
in authorized denominations and for a like aggregate Fractional Undivided
Interest.
Subject to the provisions of Section 2.12 hereof, any Pass
Through Certificate or Pass Through Certificates may be exchanged for a
Pass Through Certificate or Pass Through Certificates of the same Series in
other authorized denominations and for a like aggregate Fractional
Undivided Interest. Pass Through Certificates to be exchanged shall be
surrendered at any office or agency to be maintained by the Pass Through
Trustee for the related Series for the purpose as provided in Section 3.02
hereof, and the Pass Through Trustee shall execute, authenticate and
deliver in exchange therefor the Pass Through Certificate or Pass Through
Certificates which the Certificateholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously or previously
outstanding.
All Pass Through Certificates presented for registration of
transfer, exchange, redemption or payment shall (if so required by the Pass
Through Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Pass
Through Trustee duly executed by, the Certificateholder or such Person's
attorney duly authorized in writing.
The Pass Through Trustee may require payment from the
Certificateholder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any exchange or
registration of transfer of Pass Through Certificates. No service charge
to the Certificateholder shall be made for any such transaction.
All Pass Through Certificates issued upon any transfer or
exchange of Pass Through Certificates shall evidence ownership in the same
Pass Through Trust and be entitled to the same benefits under this Pass
Through Agreement and the applicable Series Supplement, as the Pass Through
Certificates surrendered upon such transfer or exchange.
Resales or other transfers of Pass Through Certificates
represented by a Registered Global Certificate will be conducted in
accordance with the provisions of this Pass Through Agreement, including
without limitation Section 6.06 hereof, and the rules and procedures of the
Depositary applicable to U.S. corporate pass through certificates and
without notice to, or action by, the Pass Through Trustee.
Neither the Company nor the Pass Through Trustee will have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of, beneficial ownership interests of a Registered
Global Certificate or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen
Pass Through Certificates. If any Pass Through Certificate becomes
mutilated, defaced or is apparently destroyed, lost or stolen, the Pass
Through Trustee in its discretion may execute, authenticate and deliver a
new Pass Through Certificate of like Fractional Undivided Interest in the
related Pass Through Trust, bearing a number not contemporaneously or
previously outstanding, in exchange and substitution for the mutilated or
defaced Pass Through Certificate, or in lieu of and in substitution for the
Pass Through Certificate so apparently destroyed, lost or stolen. In every
case the applicant for a substitute Pass Through Certificate shall furnish
to the Pass Through Trustee and any agent of the Pass Through Trustee such
security or indemnity as may be required by them to indemnify and defend
and to save each of them harmless from any such substitution and, in every
case of destruction, loss or theft, evidence to their satisfaction of the
apparent destruction, loss or theft of such Pass Through Certificate and of
the ownership thereof.
Upon the issuance of any substitute Pass Through Certificate,
the Pass Through Trustee may require payment from the Certificateholder of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other reasonable expenses (including
the reasonable fees and expenses of the Pass Through Trustee) connected
therewith. If any Pass Through Certificate of a Pass Through Trust for
which a notice of termination has been or is about to be given pursuant to
Section 12.01 hereof becomes mutilated or defaced or is apparently
destroyed, lost or stolen, the Pass Through Trustee may, instead of issuing
a substitute Pass Through Certificate, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated or
defaced Pass Through Certificate), if the applicant for such payment
furnishes to the Pass Through Trustee and any agent of the Pass Through
Trustee such security or indemnity as any of them may require to save each
of them harmless from all risks, however remote, resulting from such
payment and, in every case of apparent destruction, loss or theft, the
applicant shall also furnish to the Pass Through Trustee and any agent of
the Pass Through Trustee evidence to their satisfaction of the apparent
destruction, loss or theft of such Pass Through Certificate and of the
ownership thereof.
Every substitute Pass Through Certificate issued pursuant to
the provisions of this Section 2.09 by virtue of the fact that any Pass
Through Certificate is apparently destroyed, lost or stolen will constitute
conclusive evidence of the Fractional Undivided Interest in the applicable
Pass Through Trust evidenced by the Pass Through Certificate that it
replaces, whether or not the apparently destroyed, lost or stolen Pass
Through Certificate may be enforceable at any time by anyone and will be
entitled to all the benefits of (but will be subject to all the limitations
of rights set forth in) the applicable Pass Through Trust equally and
proportionately with any and all other Pass Through Certificates duly
authenticated and delivered therefor. All Pass Through Certificates will
be held and owned upon the express condition that, to the extent permitted
by law, the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, defaced, or apparently destroyed, lost
or stolen Pass Through Certificates and will preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10. Cancellation of Pass Through Certificates;
Destruction Thereof. All Pass Through Certificates surrendered for
payment, redemption, registration of transfer or exchange, if surrendered
to any agent of the Pass Through Trustee, shall be delivered to the Pass
Through Trustee for cancellation or, if surrendered to the Pass Through
Trustee, shall be cancelled by it; and no Pass Through Certificates shall
be issued in lieu thereof except as expressly permitted by any of the
provisions of this Pass Through Agreement or the applicable Series
Supplement. The Pass Through Trustee shall destroy cancelled Pass Through
Certificates held by it.
SECTION 2.11. Temporary Pass Through Certificates. Pending
the preparation of definitive Pass Through Certificates of any Series, the
Pass Through Trustee may execute, authenticate and deliver temporary Pass
Through Certificates for such Series (produced in a form satisfactory to
the executing officer of the Pass Through Trustee, as evidenced by such
officer's execution thereof). Such temporary Pass Through Certificates
shall be issuable as registered Pass Through Certificates without coupons,
of any authorized denomination, and substantially in the form of the
definitive Pass Through Certificates of such Series but with such
omissions, insertions and variations as may be appropriate for temporary
Pass Through Certificates, all as may be determined by the executing
officer of the Pass Through Trustee, as evidenced by such officer's
execution thereof.
Temporary Pass Through Certificates may contain such reference
to any provisions of this Pass Through Agreement or the applicable Series
Supplement as may be appropriate. Every such temporary Pass Through
Certificate shall be executed and authenticated by the Pass Through Trustee
upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Pass Through Certificates of such Series.
Without unreasonable delay the Company shall furnish definitive Pass
Through Certificates for such Series and thereupon temporary Pass Through
Certificates shall be surrendered in exchange therefor without charge at
any office or agency to be maintained by the Pass Through Trustee for the
purpose pursuant to Section 3.02 hereof, and the Pass Through Trustee shall
execute, authenticate and deliver in exchange for such temporary Pass
Through Certificates such definitive Pass Through Certificates evidencing a
like aggregate Fractional Undivided Interest in the applicable Pass Through
Trust in authorized denominations. Until so exchanged, temporary Pass
Through Certificates shall be entitled to the same benefits under the
applicable Pass Through Trust and this Pass Through Agreement as definitive
Pass Through Certificates of the applicable Series.
SECTION 2.12. Pass Through Certificates Issuable in the Form
of a Registered Global Certificate. For any Series, at the sole option of
the Company as set forth in the related Series Supplement, this Section
2.12 shall apply to such Series or may be amended with respect to any
Series. To the extent that the provisions of this Section 2.12 conflict
with any other provisions of this Pass Through Agreement, the provisions of
this Section 2.12 shall control.
(a) If the Company shall establish pursuant to Section
2.01(b)(9) hereof that the Pass Through Certificates of a particular Series
are to be issued in whole in the form of a Registered Global Certificate,
then the Pass Through Trustee shall, in accordance with this Article II,
execute, authenticate and deliver, one or more Registered Global
Certificates which (i) shall represent, and shall be denominated in an
amount equal to, the aggregate Fractional Undivided Interests of all of the
Pass Through Certificates in the related Pass Through Trust, (ii) shall be
registered in the name of the Depositary or its nominee, (iii) shall be
delivered by the Pass Through Trustee to the Depositary or pursuant to the
Depositary's instruction, and (iv) shall bear a legend substantially to the
following effect: "Unless this Registered Global Certificate is presented
by an authorized representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Pass Through Trustee or its agent for
registration of transfer, exchange or payment, and any Registered Global
Certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein."
No Person acquiring a beneficial interest in a Pass Through
Certificate will be entitled to receive a definitive Pass Through
Certificate representing such Person's interest in the Pass Through Trust,
except as provided in subsection (d) below.
(b) Notwithstanding any other provision of this Section 2.12
or of Section 2.08 hereof, the Registered Global Certificate for any Series
may be transferred, in whole but not in part and in the manner provided in
Section 2.08 hereof, by the Depositary to a nominee of such Depositary or
by a nominee of such Depositary to such Depositary or another nominee of
such Depositary or by such Depositary or any such nominee to a successor
Depositary selected or approved by the Company upon notice to the Pass
Through Trustee or to a nominee of such successor Depositary.
(c) The Depositary shall be an organization registered as a
clearing agency under the Exchange Act and any other applicable statute or
regulation.
(d) If at any time the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary for such Series or if at
any time the Depositary for such Series shall no longer be eligible under
subsection (c) above, and a successor Depositary is not appointed by the
Company within 90 days after the Company receives such notice or becomes
aware of such condition, as the case may be, this Section 2.12 shall no
longer be applicable to the Pass Through Certificates of such Series and
the Pass Through Trustee will execute, authenticate and deliver Pass
Through Certificates of such Series in definitive registered form without
coupons, in authorized denominations, and in an aggregate Fractional
Undivided Interest in the related Pass Through Trust equal to the
Fractional Undivided Interest in the related Pass Through Trust of the
Registered Global Certificate then outstanding in exchange for such
Registered Global Certificate.
The Company may at any time and in its sole discretion
determine that the Pass Through Certificates of any Series shall no longer
be represented by a Registered Global Certificate and that the provisions
of this Section 2.12 shall no longer apply to such Pass Through
Certificates. In such event the Pass Through Trustee, upon receipt of an
Officer's Certificate evidencing such determination by the Company, will
notify the Depositary of the availability of such Pass Through Certificates
in definitive form and will execute, authenticate and deliver, Pass Through
Certificates of such Series in definitive registered form without coupons,
in authorized denominations and in an aggregate Fractional Undivided
Interest in the related Pass Through Trust equal to the Fractional
Undivided Interest in the related Pass Through Trust of the Registered
Global Certificate then outstanding in exchange for such Registered Global
Certificate. Upon the exchange of the Registered Global Certificate for
such Pass Through Certificates in definitive registered form, such
Registered Global Certificate shall be cancelled by the Pass Through
Trustee. Such Pass Through Certificates in definitive registered form
issued in exchange for the Registered Global Certificate pursuant to this
subsection (d) shall be registered in such names and in such authorized
denominations as the Depositary shall instruct the Pass Through Trustee.
The Pass Through Trustee shall deliver such Pass Through Certificates to
the Persons in whose names such Pass Through Certificates are so
registered. Upon the issuance of Pass Through Certificates in definitive
registered form without coupons, the Pass Through Trustee shall recognize
the Person in whose name such definitive Pass Through Certificates are
registered in the Register from time to time as Certificateholders
hereunder.
(e) As long as the Pass Through Certificates of a Series are
represented by a Registered Global Certificate, all distributions for such
Series shall be made to the holder of such Registered Global Certificate as
the Certificateholder of such Series, or to such Persons as such holder may
designate, by wire transfer of immediately available funds on the date such
distributions are due, and the Company shall or shall cause the Pass
Through Trustee to provide to the Depositary any notices referred to in the
related Letter of Representations in accordance with such Letter of
Representations.
ARTICLE III
CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 3.01. Covenants of the Company. (a) The Company will
preserve and maintain all of its rights, privileges and franchises
necessary in the normal conduct of its business; provided that the Company
shall not be required to preserve any right, privilege or franchise if the
Company shall reasonably determine that the loss thereof will not
materially adversely affect the Company's ability to perform its
obligations hereunder or under any Series Supplement.
(b) The Company shall not (i) consolidate with or merge into
any other corporation under circumstances in which the Company is not the
surviving corporation or (ii) convey, transfer or lease all or
substantially all of its assets as an entirety to any Person, unless the
corporation formed by such consolidation or into which the Company is
merged or the Person which acquired by conveyance, transfer or lease
substantially all of the assets of the Company as an entirety shall be a
corporation organized and existing under the laws of the United States of
America or any State or the District of Columbia, and shall execute and
deliver to the Pass Through Trustee an agreement reasonably satisfactory in
form and substance to the Pass Through Trustee containing an effective
assumption by such successor corporation of the due and punctual
performance and observance of each covenant and condition to be performed
or observed by the Company hereunder and under each Series Supplement.
(c) Upon any consolidation or merger, or any conveyance,
transfer or lease of substantially all the assets of the Company as an
entirety in accordance with this Section 3.01, the successor corporation
formed by such consolidation or the Person into which the Company is merged
or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the
Company hereunder and under each Series Supplement with the same effect as
if such successor corporation or such Person, as the case may be, had been
named as the Company herein and therein. No such conveyance, transfer or
lease of substantially all of the assets of the Company as an entirety
shall have the effect of releasing the Company or any successor corporation
which shall theretofore have become such in the manner prescribed in this
Section 3.01 from its liability hereunder or under any Series Supplement.
(d) The Pass Through Trustee shall receive an Opinion of
Counsel of the Company as conclusive evidence that any consolidation,
merger, sale, lease or conveyance, and any assumption complies with the
provisions of this Section 3.01 and the Pass Through Trustee shall be
entitled to rely upon the same for all purposes hereof.
SECTION 3.02. Offices for Payments; Registrar. So long as
any Pass Through Certificates of a Series remain outstanding, the Pass
Through Trustee will maintain the following for such Series: (a) an office
or agency where such Pass Through Certificates may be presented for payment
and (b) a facility or agency in New York, New York where such Pass Through
Certificates may be presented or surrendered for registration of transfer
and for exchange and for redemption as provided in this Pass Through
Agreement (the "Registrar"). Written notice of the location of each such
other office or agency and of any change of location thereof shall be given
by the Pass Through Trustee to the Company, any Owner Trustees, the
Indenture Trustees and the Certificateholders of such Series. In the event
that no such office or agency shall be maintained or no such notice of
location or of change of location shall be given, presentations and demands
may be made and notices may be served at the Corporate Trust Office of the
Pass Through Trustee. The Registrar shall keep a Register with respect to
the Pass Through Certificates of each Series and their transfer and
exchange. The Pass Through Trustee may appoint one or more co-registrars
("Co-Registrars") for any Series and may terminate any such appointment at
any time upon written notice. The term "Registrar" includes any Co-Registrar.
Any Registrar shall be a bank or trust company organized and
doing business under the laws of the United States or any state, with a
combined capital and surplus of at least $100,000,000, or a direct or
indirect subsidiary of such an entity, or a member of a bank holding
company group, having a combined capital and surplus of at least
$100,000,000 and such subsidiary or member itself having a capital and
surplus of at least $10,000,000.
The Pass Through Trustee shall initially act as Registrar and
shall initially serve as an office where Pass Through Certificates can be
presented for payment.
SECTION 3.03. Representations and Warranties of the Pass
Through Trustee. (a) The Pass Through Trustee, in its individual capacity
(except with respect to clause (iv) below), represents, warrants and agrees
that:
(i) it is a validly existing national banking association or a
bank or trust company organized or chartered under the laws of a
State of the United States of America and duly organized under the
laws of the United States of America or such State, as the case may
be, holding a valid certificate to do business as a national banking
association or a bank or trust company under the State of the United
States of America where it is organized or chartered, as the case may
be, with banking and trust powers and has the corporate power and
authority to enter into and perform its obligations under this Pass
Through Agreement and any Intercreditor Agreement;
(ii) each of this Pass Through Agreement and any Intercreditor
Agreement has been duly authorized by all necessary corporate action
on its part, and neither the execution and delivery hereof or thereof
nor its performance of any of the terms and provisions hereof or
thereof will violate any federal law or the law of the State of the
United States of America where it is located or regulation relating
to its banking or trust powers or any judgment or order applicable to
or binding on the Pass Through Trustee and will not contravene or
result in any breach of, or constitute any default under its charter
or by-laws or the provisions of any indenture, mortgage, contract or
other agreement to which it is a party or by which it or its
properties may be bound or affected;
(iii) the execution, delivery and performance by the Pass
Through Trustee of this Pass Through Agreement or any Intercreditor
Agreement will not require the authorization, consent, or approval
of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of, any governmental authority
or agency of the United States of America or the State of the United
States of America where it is located regulating the banking and
corporate trust activities of the Pass Through Trustee other than (i)
the registration of the Pass Through Certificates under the
Securities Act and under the securities laws of any state in which
the Pass Through Certificates may be offered for sale if the laws of
such state require such action and (ii) the qualification of the Pass
Through Agreement under the Trust Indenture Act pursuant to an order
of the Securities and Exchange Commission;
(iv) each of this Pass Through Agreement and any Intercreditor
Agreement has been duly executed and delivered by it and, assuming
that such documents are the legal, valid and binding obligation of
the other parties thereto, is the legal, valid and binding obligation
of the Pass Through Trustee, enforceable against the Pass Through
Trustee in accordance with its terms except as may be limited by
bankruptcy, insolvency, moratorium, reorganization, receivership,
fraudulent conveyance or similar laws or equitable principles of
general application to or affecting the enforcement of creditors'
rights and remedies generally from time to time in effect, regardless
of whether such enforceability is considered in a proceeding in
equity or at law; and
(v) each Series Supplement executed by such Pass Through
Trustee will be, upon the date of execution and delivery of such
Series Supplement, executed and delivered by one of its officers duly
authorized to execute and deliver such Series Supplement on its
behalf.
(b) The representations and warranties set forth in subsection
(a) above shall be deemed to be made by the applicable Pass Through Trustee
on each Issuance Date, except as otherwise provided in the applicable
Series Supplement.
SECTION 3.04. Paying Agents. Whenever the Pass Through
Trustee in its sole discretion shall appoint a paying agent (the "Paying
Agent") for any Pass Through Trust, it will cause the Paying Agent to
execute and deliver an instrument in which the Paying Agent shall agree
with the Pass Through Trustee, subject to the provisions of this Section
3.04,
(a) that it will hold all sums received by it as such agent for
distribution to the Certificateholders of the related Series (whether
such sums have been paid to it by the Pass Through Trustee or the
Related Owner Trustee or Indenture Trustee) in trust for the benefit
of the Certificateholders of the related Series or of the Pass Through
Trustee, and
(b) that it will notify the Pass Through Trustee if the
principal of or interest or premium on the Equipment Certificates that
constitute Trust Property of such Pass Through Trust is not paid when
the same is due and payable.
Anything in this Section 3.04 to the contrary notwithstanding,
the agreements to hold sums in trust as provided in this Section 3.04 are
subject to the provisions of Sections 12.03 and 12.04 hereof.
SECTION 3.05. No Representations or Warranties as to
Documents. The Pass Through Trustee neither makes nor shall be deemed to
have made any representation or warranty as to the validity, legality or
enforceability of any Series Supplement, any related Pass Through
Certificates, any Intercreditor Agreement or any related Indenture
Documents or as to the correctness of any statement contained in any
thereof, except for the representations and warranties of the Pass Through
Trustee made in its individual capacity under this Pass Through Agreement,
in any Series Supplement or in any related Participation Agreement.
SECTION 3.06. Payments from Trust Property Only. For any Pass
Through Trust, all payments or distributions to be made to
Certificateholders of any Series under the related Series Supplement by the
Pass Through Trustee under such Pass Through Trust shall be made only from
the income and the proceeds from the related Trust Property and only to the
extent that the Pass Through Trustee shall have sufficient income or
proceeds from such Trust Property to enable the Pass Through Trustee to
make distributions of the amounts due in respect of the Pass Through
Certificates thereunder.
Each Certificateholder of such Series by its acceptance of a
related Pass Through Certificate agrees that it will look solely to the
income and proceeds from the related Trust Property to the extent available
for distribution to it as provided herein and in the related Series
Supplement and that the Pass Through Trustee is not personally liable to
such Certificateholder for any amounts payable under such Pass Through
Trust except as expressly provided herein.
SECTION 3.07. Limitation of the Company's Liability. The
Company is a party to this Pass Through Agreement solely for purposes of
meeting the requirements of the Trust Indenture Act, and therefore shall
not be liable hereunder, except as otherwise expressly provided herein, or
under the terms of any Series Supplement or any Pass Through Certificates,
except as otherwise expressly provided therein.
ARTICLE IV
CERTIFICATEHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE PASS THROUGH TRUSTEE
SECTION 4.01. Certificateholder Lists; Ownership of Pass Through
Certificates. (a) For each Series, the Pass Through Trustee shall
preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of the Certificateholders
of such Series. If the Pass Through Trustee is not the Registrar for such
Series, the Company shall cause the Registrar to furnish to the Pass
Through Trustee semi-annually not more than 15 days after each Record Date,
as of such Record Date, or at such other times as the Pass Through Trustee
may request in writing, a list, in such form and as of such date as the
Pass Through Trustee may reasonably require, containing all the information
in the possession or control of the Registrar as to the names and addresses
of the Certificateholders of such Series and the amounts of the Pass
Through Certificates held by such Certificateholders.
(b) For each Series, ownership of the Pass Through Certificates
shall be proved by the Register for such Series kept by the Registrar.
SECTION 4.02. Disclosure of Certificateholder Lists. Each and
every Certificateholder, by receiving and holding such Pass Through
Certificate, agrees with the Company and the Pass Through Trustee that
neither the Company, the Pass Through Trustee, the Pass Through Trustee in
its individual capacity nor any agent of any of the foregoing shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of any Certificateholders in accordance with the
provisions of Section 312 of the Trust Indenture Act, regardless of the
source from which such information was derived, and that the Pass Through
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 4.03. Reports by the Company. The Company covenants:
(a) to file with the Pass Through Trustee, within 30 days after the
Company is required to file the same with the Commission, copies of the
reports and documents, which the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(b) to file with the Pass Through Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents, and reports with
respect to compliance by the Company with the conditions and covenants
provided for in this Pass Through Agreement as may be required from time to
time by such rules and regulations;
(c) to transmit to the Certificateholders of each Series in the manner
and to the extent required by Section 313(c) of the Trust Indenture Act,
within 30 days after the filing thereof with the Pass Through Trustee, such
summaries of any information, documents and reports required to be filed by
the Company pursuant to subsections (a) and (b) of this Section 4.03 as may
be required by rules and regulations prescribed from time to time by the
Commission; and
(d) furnish to the Pass Through Trustee, on or before each March 15, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer of the Company as to his or her
knowledge of the Company's compliance with all conditions and covenants
under this Pass Through Agreement and each Series Supplement. For purposes
of this subsection (d), such compliance shall be determined without regard
to any period of grace or requirement of notice provided under this Pass
Through Agreement or any Series Supplement.
SECTION 4.04. Reports by the Pass Through Trustee. For each Series, on
or before each May 15, the Pass Through Trustee in respect of such Series
shall transmit, in the manner and to the extent required by Section 313(c)
of the Trust Indenture Act, any report required by Section 313(b) of the
Trust Indenture Act to be transmitted by the Pass Through Trustee to the
related Certificateholders.
ARTICLE V
RECEIPT AND DISTRIBUTION OF INCOME
AND PROCEEDS FROM THE TRUST PROPERTY
SECTION 5.01. Certificate Account and Special Payments Account.
(a) The Pass Through Trustee shall establish and maintain for each Pass
Through Trust, on behalf of the related Certificateholders of each Series,
a Certificate Account as one or more non-interest bearing accounts. In
each case, the Pass Through Trustee shall hold such Certificate Account in
trust for the benefit of such Certificateholders, respectively, and shall
make or permit withdrawals therefrom only as provided in this Pass Through
Agreement, the related Series Supplement or any Intercreditor Agreement.
Upon receipt of any Scheduled Payment, the Pass Through Trustee shall
immediately deposit such Scheduled Payment in the applicable Certificate
Account.
(b) The Pass Through Trustee shall establish and maintain, as
and when required, for each Pass Through Trust, on behalf of the related
Certificateholders of each Series, a Special Payments Account as one or
more accounts, which shall be non-interest bearing except as provided in
Section 5.04 hereof. In each case, the Pass Through Trustee shall hold
such Special Payments Account in trust for the benefit of such
Certificateholders, respectively, and shall make or permit withdrawals
therefrom only as provided in this Pass Through Agreement, the related
Series Supplement or any Intercreditor Agreement. Upon receipt of any
Special Payment, the Pass Through Trustee shall immediately deposit such
Special Payment in the applicable Special Payments Account.
(c) The Pass Through Trustee shall present any Equipment
Certificate to the applicable Related Indenture Trustee on the date of its
stated final maturity, or on such earlier date as such Equipment
Certificate is to be redeemed or purchased in whole pursuant to the
relevant Indenture.
SECTION 5.02. Distributions from Certificate Account and
Special Payments Account. (a) Subject to any Intercreditor Agreement, for
each Pass Through Trust, on each related Regular Distribution Date, or as
soon thereafter as the Pass Through Trustee has confirmed receipt of any
Scheduled Payment due on the related Equipment Certificates on such Regular
Distribution Date, the Pass Through Trustee shall distribute out of the
applicable Certificate Account the entire amount deposited therein pursuant
to Section 5.01(a) hereof by paying to each Certificateholder of the
related Series of record at the close of business on the Record Date for
such Regular Distribution Date (except as provided in Section 12.01 hereof
concerning the final distribution), at the address for such
Certificateholder appearing in the related Register, such
Certificateholder's pro rata share (based on the aggregate Fractional
Undivided Interest in the related Pass Through Trust held by such
Certificateholder) of the aggregate amount in the applicable Certificate
Account.
(b) Subject to any Intercreditor Agreement, for each Pass
Through Trust, on each related Special Distribution Date, or as soon
thereafter as the Pass Through Trustee has confirmed receipt of any Special
Payment due on the related Equipment Certificates or realized upon the sale
of any such Equipment Certificates, the Pass Through Trustee shall
distribute out of the applicable Special Payments Account the entire amount
of such Special Payment deposited therein pursuant to Section 5.01(b)
hereof by paying to each Certificateholder of the related Series of record
at the close of business on the Record Date for such Special Distribution
Date (except as provided in Section 12.01 hereof concerning the final
distribution), at the address for such Certificateholder appearing in the
related Register, such Certificateholder's pro rata share (based on the
aggregate Fractional Undivided Interest in the related Pass Through Trust
held by such Certificateholder) of the aggregate amount in the applicable
Special Payments Account on account of such Special Payment.
(c) For each Pass Through Trust, the Pass Through Trustee
shall at the expense of the Company notify each Certificateholder of the
related Series by mail at its address as it appears in the related Register
of each related Special Payment for such Series. If the related Equipment
Certificates are to be redeemed or purchased in whole prior to their
respective maturities, or if a Special Payment is to be made pursuant to
either of the last two paragraphs of Section 2.02(b) hereof, such notice
shall be mailed not less than 20 days prior to the date any such Special
Payment is scheduled to be distributed. For any other Special Payment,
such notice shall be mailed as soon as practicable after the Pass Through
Trustee has received funds for such Special Payment. Such notices of
Special Payments shall set forth:
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 12.01 hereof);
(ii) the amount of the Special Payment for each $1,000 face amount
Pass Through Certificate and the amount thereof constituting principal,
premium, if any, and interest on the related Equipment Certificates;
(iii) the reason for the Special Payment; and
(iv) if the Special Distribution Date is the same date as a Regular
Distribution Date for such Series, the total amount to be received on
such date for each $1,000 face amount Pass Through Certificate.
If the amount of premium, if any, payable upon the redemption or purchase
in whole of an Equipment Certificate has not been calculated at the time
that the Pass Through Trustee mails the notice of the related Special
Payment, it shall be sufficient if the notice sets forth the other amounts
to be distributed and states that any premium received will also be
distributed.
If, for any Pass Through Trust, any cancelable redemption of
the related Equipment Certificates is cancelled, the Pass Through Trustee,
as soon as possible after learning thereof, shall notify by mail each
Certificateholder of the related Series at its address as it appears on the
related Register.
(d) For each Pass Through Trust, any Scheduled Payment or
Special Payment to be distributed pursuant to this Article V shall be
payable at the Corporate Trust Office of the Pass Through Trustee or at any
office or agency maintained for such purpose for the related Series
pursuant to Section 3.02 hereof, provided that any Scheduled Payment or
Special Payment may be payable at the option of the Pass Through Trustee or
its Paying Agent for the related Series by mailing checks for such
Scheduled Payment or Special Payment payable to or upon the written order
of the related Certificateholders entitled thereto as they appear on the
related Register.
SECTION 5.03. Statements to Certificateholders. (a) On each
Regular Distribution Date and Special Distribution Date, the Pass Through
Trustee shall mail to Certificateholders of the related Series a statement,
giving effect to such distribution to be made on such Regular Distribution
Date or Special Distribution Date, as the case may be, setting forth the
following information (as to (i) and (ii) below, for each $1,000 face
amount Pass Through Certificate):
(i) the amount of such distribution allocable to principal and the
amount allocable to premium, if any, on the related Equipment
Certificates;
(ii) the amount of such distribution allocable to interest on the
related Equipment Certificates; and
(iii) the Pool Balance and the Pool Factor of the related Pass
Through Trust.
(b) For each Series, within a reasonable period of time after
the end of each calendar year but not later than the latest date permitted
by law, the Pass Through Trustee shall furnish to each Person who at any
time during such calendar year was a Certificateholder of such Series a
statement containing the sum of the amounts determined pursuant to clauses
(a)(i) and (a)(ii) of this Section 5.03 for the related Pass Through Trust
for such calendar year or, in the event such Person was a Certificateholder
of such Series during a portion of such calendar year, for the applicable
portion of such year.
SECTION 5.04. Investment of Special Payment Moneys. Any money
received by the Pass Through Trustee pursuant to Section 5.01(b) hereof
representing a Special Payment that is not to be promptly distributed
shall, to the extent practicable, be invested by the Pass Through Trustee
in Permitted Investments selected by the Company pending distribution of
such Special Payment pursuant to Section 5.02 hereof. Any investment made
pursuant to this Section 5.04 shall be in such Permitted Investments having
maturities not later than the date that such moneys are required to be used
to make the payment required under Section 5.02 hereof on the applicable
Special Distribution Date and the Pass Through Trustee shall hold any such
Permitted Investments until maturity. The proceeds upon maturity of any
Permitted Investment shall not be reinvested pending distribution. The
Pass Through Trustee shall have no liability with respect to any investment
made pursuant to this Section 5.04, other than by reason of the willful
misconduct or negligence of the Pass Through Trustee. All income and
earnings from such investments shall be distributed on such Special
Distribution Date as part of such Special Payment.
SECTION 5.05. Withholding Taxes. The Pass Through Trustee
shall withhold any taxes required to be withheld on payments to any
Certificateholder of any Series, except to the extent that such
Certificateholder has furnished evidence reasonably satisfactory to the
Pass Through Trustee of any exemption from withholding claimed by such
Certificateholder, and under no circumstances shall the failure of any such
Certificateholder to receive any amounts so withheld constitute an Event of
Default. The Pass Through Trustee agrees to act as such withholding agent
and, in connection therewith, whenever any taxes or similar charges are
required to be withheld with respect to any amounts payable in respect of
the Pass Through Certificates of such Series, to withhold such amounts and
timely pay the same to the appropriate authority in the name of and on
behalf of the Certificateholders of such Series, that it will file any
necessary withholding tax returns or statements when due, and that, as
promptly as possible after the payment thereof, it will deliver to each
such Certificateholder appropriate documentation showing the payment
thereof, together with such additional documentary evidence as any such
Certificateholder of such Series may reasonably request from time to time.
The Pass Through Trustee agrees to file any other information reports as it
may be required to file under law.
Notwithstanding any provision to the contrary herein, if the
Company is required to pay any withholding tax or any interest or penalty
thereon, or to indemnify an Owner Participant or Owner Trustee pursuant to
Section 8.01(c) of any related Participation Agreement with respect to the
Pass Through Trustee's failure to withhold with respect to any
Certificateholder, the Pass Through Trustee shall be entitled to retain any
payments otherwise distributable to such Certificateholder that was subject
to such withholding until such amounts shall have been recovered in full by
the Pass Through Trustee.
ARTICLE VI
CONCERNING THE CERTIFICATEHOLDERS
SECTION 6.01. Evidence of Action Taken by Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Pass Through Agreement to be given or
taken by Certificateholders of any Series may be embodied in and evidenced
by one or more substantially similar instruments signed by such
Certificateholders in person or by an agent duly appointed in writing, and,
except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to the Pass
Through Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Pass
Through Agreement and (subject to Sections 8.02 and 8.03 hereof) conclusive
in favor of the Pass Through Trustee, if made in the manner provided in
this Article VI.
(b) For the purpose of determining the Certificateholders of
any Series entitled to vote or consent to any direction, waiver or other
action of such Certificateholders under Section 7.10 or 7.11 hereof, the
Company may set a record date for such vote or consent by specifying such
record date in an Officer's Certificate delivered to the Pass Through
Trustee. Notwithstanding Section 316(c) of the Trust Indenture Act, such
record date shall be a date not more than 15 days prior to the first
solicitation of such vote or consent.
SECTION 6.02. Proof of Execution of Instruments and of Holding
of Certificates. Subject to Sections 8.02 and 8.03 hereof, the execution
of any instrument by a Certificateholder or his or her agent or proxy may
be proved in accordance with such reasonable rules and regulations as may
be prescribed by the Pass Through Trustee. The holding of Pass Through
Certificates shall be proved by the Register or by a certificate of the
Registrar.
SECTION 6.03. Certificateholders to Be Treated as Owners.
Prior to due presentment for registration of transfer of any Pass Through
Certificate, each related Indenture Trustee, the Pass Through Trustee, any
agent of any such related Indenture Trustee or the Pass Through Trustee,
the Paying Agent, if any, the Registrar and the Company may deem and treat
the Person in whose name such Pass Through Certificate shall be registered
upon the Register as the absolute owner of such Pass Through Certificate
(whether or not such Pass Through Certificate shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment on account of the principal payable with
respect to and, subject to the provisions of this Pass Through Agreement,
interest payable with respect to such Pass Through Certificate and for all
other purposes; and neither any such related Indenture Trustee nor the Pass
Through Trustee (nor any agent of any such related Indenture Trustee or the
Pass Through Trustee) nor the Paying Agent, if any, nor the Registrar nor
the Company shall be affected by any notice to the contrary. All such
payments so made to any such Person, or upon such Person's order, shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy
and discharge the liability for moneys payable upon any such Pass Through
Certificate.
SECTION 6.04. Pass Through Certificates Owned by the Company
and Related Owner Trustees Deemed Not Outstanding. In determining whether
the Certificateholders of the requisite aggregate Fractional Undivided
Interest of Pass Through Certificates of any Series have concurred in any
direction, consent or waiver under this Pass Through Agreement, Pass
Through Certificates of such Series that are owned by the Company, any
Related Owner Trustee or Related Owner Participant or any obligor on such
Pass Through Certificates or by any Affiliate of the Company, any such
Related Owner Trustee or Related Owner Participant or any obligor on such
Pass Through Certificates shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination; provided that for
the purpose of determining whether the Pass Through Trustee shall be
protected in relying on any such direction, consent or waiver, only if a
Responsible Officer of the Pass Through Trustee has actual knowledge that
certain Pass Through Certificates are so owned shall such Pass Through
Certificates be so disregarded; and provided further that if all Pass
Through Certificates of such Series that would be deemed Outstanding in the
absence of the foregoing provision are owned by the Company, any Related
Owner Trustee or Related Owner Participant or any obligor on such Pass
Through Certificates or by any Affiliate of the Company, any such Related
Owner Trustee or Related Owner Participant or any obligor on such Pass
Through Certificates, then such Pass Through Certificates shall be deemed
Outstanding for the purpose of any such determination. Pass Through
Certificates so owned that have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Pass
Through Trustee the pledgee's right so to act with respect to such Pass
Through Certificates and that the pledgee is not the Company, any Related
Owner Trustee or Related Owner Participant or any obligor upon the Pass
Through Certificates or any Affiliate of the Company, any Related Owner
Trustee or Related Owner Participant or any obligor on such Pass Through
Certificates. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Pass
Through Trustee in accordance with such advice.
For any Series, upon request of the Pass Through Trustee, the
Company, the Related Owner Trustees and the Related Owner Participants
promptly shall furnish to the Pass Through Trustee an Officer's Certificate
listing and identifying all Pass Through Certificates of such Series, if
any, known by the Company or any such Related Owner Trustee or Related
Owner Participant to be owned or held by or for the account of any of the
above-described persons; and the Pass Through Trustee shall be entitled to
accept such Officer's Certificate as conclusive evidence of the facts set
forth therein and of the fact that all Pass Through Certificates of such
Series not listed therein are Outstanding for the purpose of any such
determination. For the purpose of determining whether Pass Through
Certificates of a Series are Outstanding as described in this Section 6.04,
an "obligor" on such Pass Through Certificates shall include any obligor or
any Affiliate of any such obligor on any Equipment Certificates that
constitute Trust Property of the related Pass Through Trust.
SECTION 6.05. Right of Revocation of Action Taken. For any
Series, at any time prior to (but not after) the evidencing to the Pass
Through Trustee, as provided in Section 6.01 hereof, of any action taken by
the related Certificateholders of the percentage in aggregate of Fractional
Undivided Interests in the related Pass Through Trust specified in this
Pass Through Agreement in connection with such action, any
Certificateholder of a Pass Through Certificate of such Series, the serial
number of which is shown by the evidence to be included among the
outstanding serial numbers of the Pass Through Certificates of such Series,
the Certificateholders of which have consented to such action, may, by
filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article VI, revoke such action so far as
concerns such Pass Through Certificate. Except as aforesaid, any such
action taken shall be conclusive and binding upon such Certificateholder
for such Pass Through Certificate and upon all future Certificateholders
and owners of such Pass Through Certificate and of any Pass Through
Certificates issued in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon any such Pass
Through Certificate or otherwise. Any action taken by such
Certificateholders of the percentage in aggregate of Fractional Undivided
Interests in the related Pass Through Trust specified in this Pass Through
Agreement in connection with such action shall be conclusively binding upon
the Pass Through Trustee and all the Certificateholders of such Series.
SECTION 6.06. ERISA. Unless otherwise specified in the
applicable Series Supplement, no employee benefit plan subject to Title I
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or individual retirement account or plan subject to Section 4975
of the Code (hereinafter collectively referred to as an "ERISA Plan"), may
acquire or hold any of the Pass Through Certificates. If the Pass Through
Certificates are not described in the applicable Series Supplement as being
eligible for purchase by ERISA Plans, the purchase by any person of any
Pass Through Certificate constitutes a representation by such person to the
Company, the Related Owner Participants, the Related Owner Trustees, the
Related Indenture Trustees and the Pass Through Trustee that such person is
not an ERISA Plan and that such person is not acquiring, and has not
acquired, such Pass Through Certificate with assets of an ERISA Plan.
ARTICLE VII
REMEDIES OF PASS THROUGH TRUSTEE
AND CERTIFICATEHOLDERS
SECTION 7.01. Events of Default. (a) Exercise of Remedies. If,
for any Pass Through Trust, an Indenture Event of Default under an
Indenture relating to any Equipment Certificate that constitutes Trust
Property of such Pass Through Trust (an "Event of Default") shall occur and
be continuing, then, subject to the provisions of any Intercreditor
Agreement, the Pass Through Trustee may vote all of the Equipment
Certificates under such Indenture held by such Pass Through Trust, and upon
the direction of the Majority In Interest of Certificateholders of the
related Series, the Pass Through Trustee shall vote a corresponding
majority of such Equipment Certificates in favor of directing the
applicable Related Indenture Trustee to declare the unpaid principal of
such Equipment Certificates then outstanding, together with interest
accrued but unpaid thereon and all other amounts due under such Equipment
Certificates and the related Indenture, to be due and payable under, and in
accordance with the provisions of, such Indenture. In addition, if such
Event of Default shall have occurred and be continuing, subject to the
provisions of any Intercreditor Agreement, the Pass Through Trustee may in
accordance with such related Indenture vote such Equipment Certificates to
direct the applicable Related Indenture Trustee regarding the exercise of
remedies provided in such Indenture.
If, for any Pass Through Trust, an Event of Default shall have
occurred and be continuing, subject to the provisions of any Intercreditor
Agreement, the Pass Through Trustee may, and upon the direction of the
Majority In Interest of Certificateholders of the related Series shall, by
such officer or agent as it may appoint, sell, convey, transfer and deliver
any Equipment Certificates held in such Pass Through Trust that are subject
to the corresponding Indenture Event of Default, without recourse to or
warranty by the Pass Through Trustee or any Certificateholder of such
Series, to any Person. In any such case, the Pass Through Trustee shall
sell, assign, contract to sell or otherwise dispose of and deliver any such
Equipment Certificates in one or more parcels at public or private sale or
sales, at any location or locations at the option of the Pass Through
Trustee, all upon such terms and conditions as it may reasonably deem
advisable and at such prices as it may reasonably deem advisable, for cash.
If the Pass Through Trustee so decides or is required to sell
or otherwise dispose of any Equipment Certificates pursuant to this Section
7.01, the Pass Through Trustee shall take such of the actions described
above as it may reasonably deem most effective to complete the sale or
other disposition of such Equipment Certificates, so as to provide for the
payment in full of all amounts due on such Equipment Certificates with
respect to the related Series. Notwithstanding the foregoing, any action
taken by the Pass Through Trustee under this Section 7.01 shall not, in the
reasonable judgment of the Pass Through Trustee, be adverse to the best
interests of the Certificateholders of such Series.
If an Intercreditor Agreement is applicable and the Pass
Through Trustee is the Controlling Party thereunder, the Pass Through
Trustee upon the occurrence of an Indenture Event of Default may direct the
exercise of remedies in connection therewith.
(b) Purchase Rights of Certificateholders. If an
Intercreditor Agreement is applicable, by acceptance of its Pass Through
Certificate, each Certificateholder agrees that at any time after the
occurrence and during the continuation of a Triggering Event, each
Certificateholder of Pass Through Certificates of a Series will have
certain rights, the exercise of which will be specified in the applicable
Series Supplement, to purchase the class of Pass Through Certificates with
senior to the Pass Through Certificates held by the purchasing
Certificateholder. The purchase price with respect to the Pass Through
Certificates of any series shall be equal to the Pool Balance of the Pass
Through Certificates of such series, together with accrued and unpaid
interest thereon to the date of such purchase, without premium, but
including any other amounts then due and payable to the Certificateholders
under this Agreement, any Intercreditor Agreement or any other Indenture
Document or on or in respect of the Pass Through Certificate of such
Series; provided, however, that no such purchase of Pass Through
Certificates of such Series shall be effective unless the purchaser shall
certify to the Pass Through Trustee that contemporaneously with such
purchase, such purchaser is purchasing, pursuant to the terms of this
Agreement and the other Agreements, if any, relating to Pass Through
Certificates of a series that are subject to the same Intercreditor
Agreement (such other Agreements, the "Other Agreements"), the Pass Through
Certificates of each such series that is senior to the Pass Through
Certificates held by such purchaser. Each payment of the purchase price of
the Pass Through Certificates of any Series shall be made to an account or
accounts designated by the Pass Through Trustee and each such purchase
shall be subject to the terms of this Section. Each Certificateholder of
any Series agrees by its acceptance of Pass Through Certificates of such
Series that it will, upon payment from any such Certificateholders of Pass
Through Certificates with a lower seniority of the purchase price specified
herein, forthwith sell, assign, transfer and convey to the purchaser
thereof (without recourse, representation or warranty of any kind except
for its own acts), all of the right, title, interest and obligation of such
Certificateholder in this Agreement, any Intercreditor Agreement, the
Liquidity Facility, the Indenture Documents and all Pass Through
Certificates of such Series held by such Certificateholder (excluding all
right, title and interest under any of the foregoing to the extent such
right, title or interest is with respect to an obligation not then due and
payable as respects any action or inaction or state of affairs occurring
prior to such sale) and the purchaser shall assume all of such
Certificateholder's obligations under this Agreement, any Intercreditor
Agreement, the Liquidity Facility and the Indenture Documents. The Pass
Through Certificates of such Series will be deemed to be purchased on the
date of payment of the purchase price is made notwithstanding the failure
of the Certificateholders to delivery any Pass Through Certificates of such
Series and, upon such a purchase, (i) the only rights of the
Certificateholders will be to deliver the Pass Through Certificates to the
purchaser and receive the purchase price for such Pass Through Certificates
of such series and (ii) if the purchaser shall so request, such
Certificateholder will comply with all of the provisions of Section 2.08
hereof to enable new Pass Through Certificates of such Series to be issued
to the purchaser in such denominations as it shall request. All charges
and expenses in connection with the issuance of any such new Pass Through
Certificates shall be borne by the purchaser thereof.
SECTION 7.02. Incidents of Sale of Equipment Certificates.
Upon any sale of all or any part of the Equipment Certificates held in any
Pass Through Trust made either under the power of sale given under this
Pass Through Agreement or the related Series Supplement or otherwise for
the enforcement of this Pass Through Agreement and the related Series
Supplement, the following shall be applicable:
(1) Certificateholders and Pass Through Trustee May Purchase
Equipment Certificates. Any Certificateholder of the related Series,
the Pass Through Trustee in its individual or any other capacity or
any other Person may bid for and purchase any of such Equipment
Certificates, and upon compliance with the terms of sale, may hold,
retain, possess and dispose of such Equipment Certificates in its or
their own absolute right without further accountability.
(2) 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 or her
purchase money, and, after paying such purchase money and receiving
such receipt, such purchaser or its personal representative or
assigns shall not be obliged to see to the application of such
purchase money, or be in any way answerable for any loss,
misapplication or non-application thereof.
(3) 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 Agreement or the related
Series Supplement or otherwise for the enforcement of the related
Pass Through Trust, shall be deposited and distributed as a Special
Payment as provided in Article V hereof.
SECTION 7.03. Pass Through Trustee May Prove Debt. If any
amount payable under any Equipment Certificate held by any Pass Through
Trust is not paid when due and payable, the Pass Through Trustee, in its
own name and as trustee of an express trust, as holder of such Equipment
Certificate shall be, to the extent permitted by and in accordance with the
terms of the related Indenture Documents and any Intercreditor Agreement,
entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceedings to judgment or final decree, and may enforce
any such judgment or final decree against the applicable Owner Trustee, in
the case of an Equipment Trust Certificate, or the Company, in the case of
an Equipment Purchase Certificate, or other obligor upon such Equipment
Certificate and collect in the manner provided by law out of the property
of such Owner Trustee, or the Company or such other obligor upon such
Equipment Certificate, as the case may be, wherever situated, the moneys
adjudged or decreed to be payable.
All rights of action and of asserting claims under this Pass
Through Agreement, or under any of the Pass Through Certificates, may be
prosecuted and enforced by the Pass Through Trustee without the possession
of any of such Pass Through Certificates or the production thereof in any
trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Pass Through Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment,
subject to the payment of the expenses, disbursements and compensation of
the Pass Through Trustee, each predecessor Pass Through Trustee and their
respective agents and attorneys, shall be for the ratable benefit of the
Certificateholders of the related Series.
In any proceedings brought by the Pass Through Trustee (and
also any proceedings involving the interpretation of any provision of this
Pass Through Agreement, any Series Supplement or any Intercreditor
Agreement to which the Pass Through Trustee shall be a party) the Pass
Through Trustee shall be held to represent all the Certificateholders of
the related Series, and it shall not be necessary to make any such
Certificateholders parties to any such proceedings.
SECTION 7.04. Remedies Cumulative. Each and every right,
power and remedy given to the Pass Through Trustee or to any of the
Certificateholders of any Series specifically or otherwise under any Pass
Through Trust shall be cumulative and shall be in addition to every other
right, power and remedy specifically given thereunder or now or hereafter
existing at law, in equity or by statute, and each and every right, power
and remedy whether specifically given thereunder or otherwise existing may
be exercised from time to time and as often and in such order as may be
deemed expedient by the Pass Through Trustee or the Certificateholders of
the related Series, and the exercise or the beginning of the exercise of
any power or remedy shall not be construed to be a waiver of the right to
exercise at the same time or thereafter any other right, power or remedy.
No delay or omission by the Pass Through Trustee or of any such
Certificateholder in the exercise of any right, remedy or power or in the
pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the applicable Owner
Trustee, if any, or the Company, as the case may be, or to be an
acquiescence therein.
SECTION 7.05. Suits for Enforcement. If an Indenture Event of
Default has occurred, has not been waived and is continuing, the Pass
Through Trustee may in its discretion and subject to its rights of
appropriate indemnification under Sections 7.07 and 8.03 and Article IX
hereof, to the extent permitted by and in accordance with any Intercreditor
Agreement and the Indenture Documents, proceed to protect and enforce its
rights and rights of the Certificateholders of the related Series by such
appropriate judicial proceedings as the Pass Through Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or
in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement under the related Pass Through
Trust or in aid of the exercise of any power granted thereunder or to
enforce any other legal or equitable right vested in the Pass Through
Trustee or the Certificateholders under such Pass Through Trust or by law;
provided that any sale of any portion of the related Trust Property shall
be done in accordance with Section 7.02 hereof.
SECTION 7.06. Discontinuance of Proceedings. If the Pass
Through Trustee or any Certificateholder of any Series institutes any
proceeding to enforce any right, power or remedy under the related Pass
Through Trust, and such proceeding is discontinued or abandoned for any
reason or is determined adversely to the Pass Through Trustee or such
Certificateholder, then and in every such case the applicable Owner
Trustee, if any, and the applicable Indenture Trustee, the Pass Through
Trustee, the Certificateholders of such Series and the Company shall,
subject to any determination in such proceeding, be restored to their
former positions and rights under such Pass Through Trust with respect to
the Trust Property and all rights, remedies and powers of the Pass Through
Trustee and such Certificateholders shall continue as if no such proceeding
had been instituted.
SECTION 7.07. Limitations on Suits by Certificateholders. No
Certificateholder of any Series shall have any right by virtue or by
availing of any provision of the related Pass Through Trust to institute
any action or proceeding at law or in equity or in bankruptcy or otherwise
upon or under or with respect to such Pass Through Trust, or for the
appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy thereunder, unless such Certificateholder
previously has notified the Pass Through Trustee in writing of an Event of
Default under such Pass Through Trust and of the continuance thereof, as
provided herein, and the Certificateholders of the related Pass Through
Certificates then Outstanding (or the proxy therefor) representing in the
aggregate not less than 50% of the Fractional Undivided Interests of Pass
Through Certificates then Outstanding under such Pass Through Trust have
requested in writing that the Pass Through Trustee institute such action or
proceedings in its own name as trustee under such Pass Through Trust and
have offered to the Pass Through Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred
therein or thereby, and the Pass Through Trustee for 60 days after its
receipt of such notice, request and offer of indemnity has failed to
institute any such action or proceedings and no direction inconsistent with
such written request has been given to the Pass Through Trustee pursuant to
Section 7.10 hereof; it being understood and intended, and being expressly
covenanted by such Certificateholder with every other Certificateholder of
such Series and the Pass Through Trustee, that no one or more
Certificateholders of such Series shall have any right in any manner
whatever to affect, disturb or prejudice the rights of any other
Certificateholder of such Series or to obtain or seek to obtain priority
over or preference to any other Certificateholder of such Series or to
enforce any right under the related Pass Through Trust, except in the
manner provided therein and for the equal, ratable and common benefit of
all Certificateholders of such Series. For the protection and enforcement
of the provisions of this Section 7.07, each and every Certificateholder of
the related Series and the Pass Through Trustee shall be entitled to such
relief as can be given either at law or in equity.
SECTION 7.08. Unconditional Right of Certificateholders to
Receive Principal, Interest and Premium, and to Institute Certain Suits.
Notwithstanding any other provision in this Pass Through Agreement, any
Series Supplement or any Pass Through Certificate issued pursuant to such
Series Supplement, but subject to any Intercreditor Agreement, the right of
any Certificateholder of the related Series to receive distributions on
such Pass Through Certificate of Scheduled Payments or Special Payments
pursuant to Article V hereof on or after the respective due dates set forth
in such Series Supplement, or, subject to Section 7.07 hereof, to institute
suit for the enforcement of any such distribution on or after such
respective dates as provided herein or therein, shall not be impaired or
affected without the consent of such Certificateholder. The purchase by
any Certificateholder of any Pass Through Certificate constitutes the
consent of such Certificateholder to the retention by the Pass Through
Trustee of certain amounts otherwise distributable to such
Certificateholder in accordance with Section 5.05 hereof.
SECTION 7.09. Control by Certificateholders. Subject to any
Intercreditor Agreement, a Majority In Interest of Certificateholders of
any Series has the right with respect to the related Pass Through Trust to
direct the Pass Through Trustee as to the time, method, and place of
conducting any proceeding for any remedy available to the Pass Through
Trustee with respect to such Pass Through Trust or pursuant to the terms of
any Intercreditor Agreement, or exercising any trust or power conferred on
the Pass Through Trustee under this Agreement or any Intercreditor
Agreement, including any right of the Pass Through Trustee as Controlling
Party under any Intercreditor Agreement or as holder of the Equipment
Certificates; provided that such direction is not otherwise than in
accordance with law and the provisions of such Pass Through Trust and the
Pass Through Trustee has received, to the extent provided in Sections 7.07
and 8.03 and Article IX hereof, such reasonable indemnification as it may
require against the costs, expenses and liabilities to be incurred by the
Pass Through Trustee; and provided further that the Pass Through Trustee
has the right to decline to follow any such direction if the Pass Through
Trustee, being advised by counsel, determines that the action or proceeding
so directed may not lawfully be taken or if the Pass Through Trustee in
good faith by its board of directors, the executive committee, or a trust
committee of directors or Responsible Officers of the Pass Through Trustee
determines that the action or proceedings so directed would involve the
Pass Through Trustee in personal liability or if the Pass Through Trustee
in good faith so determines that the actions or forebearances specified in
or pursuant to such direction would be unduly prejudicial to the interests
of the Certificateholders of such Series not joining in the giving of said
direction, it being understood that the Pass Through Trustee shall have no
duty to ascertain whether or not such actions or forebearances are unduly
prejudicial to such Certificateholders.
Nothing in this Pass Through Agreement or any Series Supplement
shall impair the right of the Pass Through Trustee in its discretion to
take any action deemed proper by the Pass Through Trustee with respect to
the related Pass Through Trust and which is not inconsistent with such
direction by Certificateholders of the related Series.
SECTION 7.10. Waiver of Past Events of Default. Subject to
any Intercreditor Agreement, the Majority in Interest of Certificateholders
of any Series (i) may on behalf of all of the Certificateholders waive any
past Event of Default under the related Pass Through Trust or the related
Series Supplement and its consequences or (ii) if the Pass Through Trustee
is the Controlling Party, may direct the Pass Through Trustee to instruct
the applicable Indenture Trustee to waive, any past Indenture Default under
any Indenture and its consequences, and thereby annul any direction given
by such Certificateholders or the Pass Through Trustee to such Indenture
Trustee with respect thereto. Upon such waiver such Event of Default will
cease to exist and any Event of Default arising therefrom will be deemed to
have been cured for every purpose of such Pass Through Trust, but no such
waiver will extend to any subsequent or other Event of Default thereunder
or impair any right consequent thereon; provided that any such waiver will
be effective to waive any such past Event of Default and its consequences
as described above if, but only if, the correlative Indenture Event of
Default has been waived under the related Indenture by the requisite
holders of the Equipment Certificates outstanding thereunder; and provided
further that in the absence of written instructions from all
Certificateholders of any Series (or the proxy therefor), the Pass Through
Trustee shall not waive any Event of Default (i) consisting of the failure
to pay any principal of, or premium (if any), or interest on, or other
amounts due under, any Equipment Certificate held by the related Pass
Through Trust and the consequent failure to distribute any related
Scheduled Payment or Special Payment pursuant to Article V hereof on or
after the respective due date therefor set forth in the related Series
Supplement or (ii) in respect of a covenant or provision under any Pass
Through Trust that, under Article XI hereof or the related Series
Supplement, cannot be modified or amended without the consent of each
Certificateholder of the related Series (or the proxy therefor).
SECTION 7.11. Notice of Pass Through Defaults. The Pass
Through Trustee shall, in the manner and to the extent required by Section
313(c) of the Trust Indenture Act, notify the Certificateholders of any
Series of all Pass Through Defaults under the related Pass Through Trust
known to the Pass Through Trustee, unless such Pass Through Defaults have
been cured before the giving of such notice; provided that under no
circumstances shall the Pass Through Trustee give such notice until the
earlier of the time at which such Pass Through Default becomes an Event of
Default or the expiration of a period of 60 days from the occurrence of
such Pass Through Default; and provided further that, except in the case of
the failure to pay any principal of or interest on or any other amount due
under any of the Equipment Certificates held by any Pass Through Trust and
the consequent failure to distribute any related Scheduled Payment or
Special Payment pursuant to Article V hereof on or after the respective due
date therefor set forth in the related Series Supplement, the Pass Through
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of
directors or trustees or Responsible Officers of the Pass Through Trustee
in good faith determines that the withholding of such notice is in the
interests of the Certificateholders of the related Series.
ARTICLE VIII
CONCERNING THE PASS THROUGH TRUSTEE
SECTION 8.01. Acceptance by Pass Through Trustee. The Pass
Through Trustee, upon the execution and delivery of a Series Supplement
creating a Pass Through Trust and providing for the issuance of a Series of
Pass Through Certificates, shall acknowledge its acceptance of all right,
title and interest in and to the Equipment Certificates to be acquired as
Trust Property of such Pass Through Trust pursuant to the applicable
Participation Agreements and Section 2.02 hereof, and shall declare that
the Pass Through Trustee holds and will hold such right, title, and
interest, together with all other property constituting the Trust Property
of such Pass Through Trust, for the benefit of all then present and future
Certificateholders of such Series, upon the trusts set forth in such Pass
Through Trust.
SECTION 8.02. Pass Through Trustee's Liens. The Pass Through
Trustee agrees that it will, in its individual capacity and at its own cost
and expense (without any right of indemnity in respect of any such cost or
expense under Article IX hereof) promptly take such action as may be
necessary to duly discharge all Liens on any part of the Trust Property of
any Pass Through Trust that result from claims (i) against it in its
individual capacity not related to the administration of such Trust
Property or any other transaction pursuant to this Pass Through Agreement
or the related Series Supplement, or (ii) against it as Pass Through
Trustee hereunder or in its individual capacity which arise out of the
negligence or willful misconduct of the Pass Through Trustee as such
negligence or willful misconduct shall be determined by a final decision of
a court of competent jurisdiction.
SECTION 8.03. Certain Rights of the Pass Through Trustee.
Subject to the Trust Indenture Act:
(a) the Pass Through Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture, note,
coupon, security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request of any Related Indenture Trustee or Related
Owner Trustee in connection with any Pass Through Trust shall be
sufficiently evidenced by an Officer's Certificate (unless other
evidence in respect thereof is specifically prescribed herein) upon
which the Pass Through Trustee may rely to prove or establish a
matter set forth therein;
(c) whenever in the administration of this Agreement or any
Intercreditor Agreement the Pass Through Trustee may consult with
counsel and any advice or Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the Pass Through Trustee shall not be obligated to exercise
any of the trusts or powers vested in it under any Pass Through Trust
or any Intercreditor Agreement at the request, order or direction of
the Certificateholders of the related Series in accordance with the
provisions thereof, unless such Certificateholders have offered to
the Pass Through Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred therein or
thereby;
(e) the Pass Through Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon
it under any Pass Through Trust, under this Agreement or under any
Intercreditor Agreement;
(f) prior to the occurrence of an Event of Default under any
Pass Through Trust and after the curing or waiving of all Events of
Default thereunder, the Pass Through Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, appraisal, bond,
debenture, note, security, or other paper or document unless
requested in writing to do so by the Majority in Interest of
Certificateholders of the related Series; provided that if the
payment within a reasonable time to the Pass Through Trustee of the
costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Pass Through
Trustee, not reasonably assured to the Pass Through Trustee by the
security afforded to it by the terms of such Pass Through Trust, the
Pass Through Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such examination shall be paid by the Pass Through
Trustee or any predecessor trustee, and shall be repaid by the
Company upon demand;
(g) the Pass Through Trustee may execute any of the trusts or
powers under any Pass Through Trust or any Intercreditor Agreement or
perform any duties hereunder or thereunder either directly or by or
through agents or attorneys not regularly in its employ and the Pass
Through Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed by it
with due care under this Agreement or any Intercreditor Agreement;
and
(h) the Pass Through Trustee shall not be required to expend or
risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its
rights or powers under any Pass Through Trust, if the Pass Through
Trustee has determined in good faith that the repayment of such funds
or adequate indemnity against such liability is not reasonably
assured to it.
SECTION 8.04. Pass Through Trustee Not Responsible for Recitals.
The Pass Through Trustee assumes no responsibility for the correctness of
the recitals contained herein or in any Pass Through Certificates, except
for the execution and authentication of such Pass Through Certificates by
the Pass Through Trustee in accordance with Sections 2.05 and 2.06 hereof,
respectively.
SECTION 8.05. Pass Through Trustee and Agents May Hold Pass
Through Certificates; Collections. The Pass Through Trustee and any agent
of the Pass Through Trustee, in its individual or any other capacity, may
become the owner or pledgee of Pass Through Certificates with the same
rights it would have if it were not the Pass Through Trustee or such agent
and, subject to the applicable provisions of the Trust Indenture Act, may
otherwise deal with the Company, any Related Indenture Trustee or Related
Owner Trustee and receive, collect, hold and retain collections therefrom
with the same rights it would have if it were not the Pass Through Trustee
or such agent.
SECTION 8.06. Moneys Held by Pass Through Trustee. Subject to
Sections 5.04 and 12.04 hereof, all moneys received by the Pass Through
Trustee shall, until used or applied as provided herein, be held in trust
for the purposes for which they were received, but need not be segregated
from other funds except to the extent required by mandatory provisions of
law. Subject to Section 5.04 hereof, neither the Pass Through Trustee nor
any agent thereof shall be under any liability for interest on any moneys
received by it hereunder.
SECTION 8.07. Right of Pass Through Trustee to Rely on
Officer's Certificate. Subject to Section 8.03 hereof, whenever in the
administration of any Pass Through Trust the Pass Through Trustee shall
deem it necessary or desirable that a matter be proved or established prior
to taking or suffering or omitting any action thereunder, such matter
(unless other evidence in respect thereof is specifically prescribed
herein) may, in the absence of bad faith on the part of the Pass Through
Trustee, be deemed to be conclusively proved and established by an
Officer's Certificate delivered to the Pass Through Trustee by the Company,
any Related Indenture Trustee or any Related Owner Trustee, as the case may
be, and such certificate, in the absence of bad faith on the part of the
Pass Through Trustee, shall be full warrant to the Pass Through Trustee for
any action taken, suffered or omitted by it under the provisions of this
Pass Through Agreement upon the faith thereof.
SECTION 8.08. Compensation. The Company agrees to pay, and
the Pass Through Trustee shall be entitled to receive, reasonable
compensation and payment or reimbursement for its reasonable advances,
expenses and disbursements (including the reasonable compensation and
expenses and disbursements of its counsel, agents and other persons not
regularly in its employ) incurred in connection with its services rendered
hereunder or in any way relating to or arising out of the administration of
any Pass Through Trust or the related Trust Property, except any such
advance, expense or disbursement attributable to the Pass Through Trustee's
negligence, willful misconduct or bad faith or incurred as a result of the
breach of its representation, warranty or covenant set forth in Sections
3.03(iv) and 8.02 hereof, and shall have a priority claim on such Trust
Property for the payment of such compensation, advances, expenses and
disbursements to the extent that such compensation, advances, expenses and
disbursements shall not be paid by the Company.
In addition, the Pass Through Trustee shall be entitled to
reimbursement from, and shall have a priority claim on, all property and
funds held or collected by the Pass Through Trustee with respect to any
Series or the related Pass Through Trust in its capacity as Pass Through
Trustee for any tax incurred without negligence, bad faith or willful
misconduct on its part, arising out of or in connection with the acceptance
or administration of such Pass Through Trust (other than any tax
attributable to the Pass Through Trustee's compensation for serving as
such), including any costs and expenses incurred in contesting the
imposition of any such tax. If the Pass Through Trustee reimburses itself
from the Trust Property of such Pass Through Trust for any such tax it
shall within 20 days mail a brief report setting forth the circumstances
thereof to all Certificateholders of the related Series as their names and
addresses appear in the related Register.
ARTICLE IX
INDEMNIFICATION OF
PASS THROUGH TRUSTEE BY THE COMPANY
The Company hereby agrees to assume liability for, and does hereby
indemnify, save and keep harmless the Pass Through Trustee, in its
individual capacity, and its successors, assigns, agents and servants, with
respect to the claims of the Pass Through Trustee for payment or
reimbursement under Section 8.08 hereof and from and against any and all
liabilities, losses, damages, penalties, taxes (excluding any taxes payable
by the Pass Through Trustee on or measured by any compensation received by
the Pass Through Trustee for its services under this Pass Through
Agreement), claims, actions, suits, costs, expenses or disbursements
(including legal fees and expenses) of any kind and nature whatsoever which
may be imposed on, or incurred by, the Pass Through Trustee in its
individual capacity in any way relating to or arising out of this Pass
Through Agreement, or any Series Supplement or the enforcement of any of
the terms of any thereof, or in any way relating to or arising out of the
administration of any Pass Through Trust or the related Trust Property or
the action or inaction of the Pass Through Trustee hereunder, except only
(i) in the case of negligence, willful misconduct or bad faith of the Pass
Through Trustee in the performance of its duties hereunder or under any
Series Supplement, (ii) as may result from the inaccuracy of any
representation or warranty of the Pass Through Trustee herein or in any
Participation Agreement or (iii) as otherwise provided in Section 8.02
hereof.
The Pass Through Trustee in its individual capacity shall be
entitled to indemnification, from the related Trust Property, for any
liability, loss, damage, penalty, claim, action, suit, cost, expense or
disbursement indemnified against pursuant to this Article IX to the extent
not reimbursed by the Company or others, but without releasing any of them
from their respective agreements of reimbursement; and to secure the same
the Pass Through Trustee shall have a prior Lien on such Trust Property.
The indemnities contained in this Article IX shall survive the termination
of this Pass Through Agreement or any Pass Through Trust and the
resignation or removal of the Pass Through Trustee hereunder or thereunder.
ARTICLE X
SUCCESSOR TRUSTEES
SECTION 10.01. Resignation and Removal of Pass Through Trustee;
Appointment of Successor. (a) The Pass Through Trustee may resign at any
time as trustee of any Pass Through Trust without cause by giving at least
45 days prior written notice to the Company, the Related Indenture Trustees
and the Related Owner Trustees, if any, such resignation to be effective
upon the acceptance of the trusteeship by a successor Pass Through Trustee.
In addition, a Majority in Interest of Certificateholders of any Series or
the Company may at any time remove the related Pass Through Trustee without
cause by an instrument in writing delivered to the Company (in the case of
removal by a Majority in Interest of Certificateholders of any Series), the
Related Owner Trustees, if any, the Related Indenture Trustees and the Pass
Through Trustee, and the Pass Through Trustee shall promptly notify each
Certificateholder of such Series of such removal in writing, such removal
to be effective upon the acceptance of the trusteeship by a successor Pass
Through Trustee.
In the case of the resignation or removal of the Pass Through
Trustee, the Company or a Majority in Interest of Certificateholders of the
related Series may appoint a successor Pass Through Trustee by an
instrument signed by the Company or such Certificateholders, as the case
may be.
If a successor Pass Through Trustee shall not have been appointed
within 90 days after such notice of resignation or removal, the Pass
Through Trustee, the Company or any Certificateholder of the related Series
may apply to any court of competent jurisdiction to appoint a successor
Pass Through Trustee to act until such time, if any, as a successor shall
have been appointed as provided above. The successor Pass Through Trustee
so appointed by such court shall immediately and without further act be
superseded by any successor Pass Through Trustee appointed by the Company
or a Majority in Interest of Certificateholders as provided above within
one year from the date of the appointment by such court.
(b) If at any time any of the following occurs with respect to
any Pass Through Trust:
(i) the Pass Through Trustee fails to comply with the
requirements of Section 310(G) of the Trust Indenture Act after
written request for such compliance by any Certificateholder of
the related Series who has been a bona fide Certificateholder
of such Series for at least six months;
(ii) the Pass Through Trustee ceases to be eligible in
accordance with the provisions of Section 10.02 hereof to act
as trustee for such Pass Through Trust and fails to resign
after written request for such resignation by the Company or by
any such bona fide Certificateholder; or
(iii) the Pass Through Trustee becomes incapable of
acting, or shall be adjudged a bankrupt or insolvent, or a
receiver or liquidator of the Pass Through Trustee or of its
property shall be appointed, or any public officer takes charge
or control of the Pass Through Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;
then the Company may remove the Pass Through Trustee and appoint a successor
trustee by written instrument, one copy of which instrument shall be
delivered to the Pass Through Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 315(e) of the
Trust Indenture Act, any Certificateholder of the related Series who has
been a bona fide Certificateholder of such Series for at least six months
may, on behalf of itself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Pass Through Trustee
and the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the
Pass Through Trustee and appoint a successor trustee, which removal and
appointment shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 10.03 hereof. The successor Pass
Through Trustee so appointed by such court shall immediately and without
further act be superseded by any successor Pass Through Trustee appointed
by the Company or the Certificateholders of the related Series as provided
in subsection (a) above within one year from the date of appointment by
such court.
SECTION 10.02. Persons Eligible for Appointment as Pass Through
Trustee. Each Pass Through Trust shall at all times have a Pass Through
Trustee which shall be a Person eligible to act as trustee under Section
310(a) of the Trust Indenture Act and shall be a corporation organized and
doing business under the laws of the United States of America or of any
State or the District of Columbia having a combined capital and surplus of
at least $100,000,000, or a direct or indirect subsidiary of such a
corporation, or a member of a bank holding company group, having a combined
capital and surplus of at least $100,000,000 and such subsidiary or member
itself having a capital and surplus of at least $10,000,000, which
corporate trustee shall be a citizen of the United States of America as
defined under Title 49 of the United States Code, as amended, and which is
authorized under such laws to exercise corporate trust powers and is
subject to supervision of examination by federal, State or District of
Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section
10.02, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent
report of condition so published.
If at any time the Pass Through Trustee ceases to be eligible
in accordance with the provisions of this Section 10.02 to act as trustee
for any Pass Through Trust, the Pass Through Trustee shall resign
immediately as Pass Through Trustee for such Pass Through Trust in the
manner and with the effect specified in Section 10.01 hereof.
SECTION 10.03. Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 10.01 hereof for any
Pass Through Trust shall execute and deliver to the Company and to its
predecessor trustee an instrument accepting such appointment with respect
to such Pass Through Trust, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all
rights, powers, duties and obligations of its predecessor with respect to
such Pass Through Trust, as if such successor trustee was originally named
as trustee of such Pass Through Trust.
Notwithstanding the foregoing, on the written request of the
Company or the successor trustee, the trustee ceasing to act shall, upon
payment of its charges then unpaid and subject to Section 12.04 hereof, pay
over to the successor trustee all moneys at the time held by it with
respect to such Pass Through Trust and shall execute and deliver an
instrument transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor trustee, the
Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain
a prior claim upon all property or funds held or collected by such trustee
with respect to such Pass Through Trust to secure any amounts then due it
pursuant to the provisions of Article IX hereof.
If a successor trustee is appointed with respect to one or more
(but not all) of the Pass Through Trusts created pursuant to this Pass
Through Agreement, the predecessor trustee and each successor trustee with
respect to such Pass Through Trusts shall execute and deliver a
supplemental agreement hereto which shall be sufficient with respect to
each such Pass Through Trust to effect the removal of any predecessor
trustee retiring and to vest the successor trustee with all rights, powers,
duties and obligations of its predecessor under each such Pass Through
Trust as to which the predecessor Pass Through Trustee is retiring, as if
such successor trustee was originally named as Pass Through Trustee
hereunder or under the applicable Series Supplement, and shall add to or
change any of the provisions of this Pass Through Agreement and the
applicable Series Supplement as shall be necessary to provide for or
facilitate the administration of such Pass Through Trust hereunder by more
than one Pass Through Trustee.
An institution satisfying the criteria specified in Section
10.02 hereof may be appointed, including pursuant to the relevant Series
Supplement, as the Pass Through Trustee in respect of any Series issued or
proposed to be issued if such institution shall execute and deliver to the
Company with respect to the relevant Pass Through Trust an instrument
(which may be the relevant Series Supplement) accepting such appointment
and shall thereupon become vested with all the rights, powers, trusts and
duties of the Pass Through Trustee in respect of such Pass Through Trust.
It is understood that except as provided in Section 10.05
hereof nothing herein or in any supplemental agreement or Series Supplement
shall constitute any Pass Through Trustee a co-trustee of any Pass Through
Trustee and that each Pass Through Trustee may be the Pass Through Trustee
of one or more separate Pass Through Trusts.
No institution shall accept appointment as a Pass Through
Trustee as provided in this Section 10.03 unless at the time of such
acceptance such institution shall be eligible under the provisions of
Article X hereof to act as trustee of the relevant Pass Through Trust.
Upon acceptance of appointment by a successor trustee as
provided in this Section 10.03, the successor trustee shall notify the
Certificateholders of the related Series of such appointment by first-class
mail at their last addresses as they shall appear in the Register, and
shall mail a copy of such notice to the Company, the Related Indenture
Trustees and the Related Owner Trustees, if any. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 10.01 hereof.
SECTION 10.04. Merger, Conversion, Consolidation or Succession
to Business of Pass Through Trustee. Any corporation into which the Pass
Through Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Pass Through Trustee is a party, or any
corporation succeeding to the corporate trust business of the Pass Through
Trustee, shall be the successor to the Pass Through Trustee hereunder,
provided that, anything herein to the contrary notwithstanding, such
corporation shall be eligible under the provisions of Section 10.02 hereof
to act as trustee hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto.
If, with respect to any Pass Through Trusts at the time of such
succession to the Pass Through Trustee, any of the Pass Through
Certificates of the related Series have been authenticated but not
delivered, such successor may adopt the certificate of authentication of
any such predecessor Pass Through Trustee and deliver such Pass Through
Certificates so authenticated; and, if at that time any of such Pass
Through Certificates have not been authenticated, such successor may
authenticate such Pass Through Certificates either in the name of any of
its predecessor or in its own name as the successor Pass Through Trustee;
and in all such cases such certificate of authentication shall have the
full force of the certificate of authentication of the Pass Through Trustee
set forth in Section 2.01 hereof; provided that the right to adopt the
certificate of authentication of any predecessor Pass Through Trustee or to
authenticate Pass Through Certificates in the name of any predecessor Pass
Through Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 10.05. Appointment of Separate Pass Through Trustees.
(a) At any time or times, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Trust Property of
any Pass Through Trust may at the time be located or in which any action of
the Pass Through Trustee may be required to be performed or taken, the Pass
Through Trustee, by an instrument in writing signed by it, may appoint one
or more individuals or corporations to act as separate trustee or separate
trustees or co-trustee, acting jointly with the Pass Through Trustee, of
all or any part of such Trust Property, to the full extent that local law
makes it necessary for such separate trustee or separate trustees or co-
trustee, acting jointly with the Pass Through Trustee, to act.
(b) The Pass Through Trustee and, at the request of the Pass
Through Trustee, the Company, shall execute, acknowledge and deliver all
such instruments as may be required by the legal requirements of any
jurisdiction or by any such separate trustee or separate trustees or co-
trustee for the purpose of more fully confirming such title, rights or
duties to such separate trustee or separate trustees or co-trustee. Upon
the acceptance in writing of such appointment by any such separate trustee
or separate trustees or co-trustee, it, he, she or they shall be vested
with such title to such Trust Property or any part thereof, and with such
rights, powers, duties and obligations, as shall be specified in the
instrument of appointment, and such rights, powers, duties and obligations
shall be conferred or imposed upon and exercised or performed by the Pass
Through Trustee, or the Pass Through Trustee and such separate trustee or
separate trustees or co-trustee jointly with the Pass Through Trustee
subject to all the terms of this Pass Through Agreement, except to the
extent that under any law of any jurisdiction in which any particular act
or acts are to be performed the Pass Through Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
separate trustee or separate trustees or co-trustee, as the case may be.
Any separate trustee or separate trustees or co-trustee may, at
any time by an instrument in writing, constitute the Pass Through Trustee
its, her or his attorney-in-fact and agent with full power and authority to
do all acts and things and to exercise all discretion on its, her or his
behalf and in its, her or his name. In case any such separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, the
title to any Trust Property and all assets, property, rights, powers,
duties and obligations and duties of such separate trustee or co-trustee
shall, so far as permitted by law, vest in and be exercised by the Pass
Through Trustee, without the appointment of a successor to such separate
trustee or co-trustee unless and until a successor is appointed.
(c) All provisions of this Pass Through Agreement which are
for the benefit of the Pass Through Trustee (including without limitation
Article IX hereof) shall extend to and apply to each separate trustee or
co-trustee appointed pursuant to the foregoing provisions of this Section
10.06.
(d) For any Pass Through Trust, every additional trustee and
separate trustee hereunder shall, to the extent permitted by law, be
appointed and act and the Pass Through Trustee shall act, subject to the
following provisions and conditions:
(i) all powers, duties, obligations and rights conferred
upon the Pass Through Trustee in respect of the receipt,
custody, investment and payment of moneys shall be exercised
solely by the Pass Through Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Pass Through Trustee shall be
conferred or imposed and exercised or performed by the Pass
Through Trustee and such additional trustee or trustees and
separate trustee or trustees jointly except to the extent that
under any law of any jurisdiction in which any particular act
or acts are to be performed, the Pass Through Trustee shall be
incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations
(including the holding of title to the Trust Property in any
such jurisdiction) shall be exercised and performed by such
additional trustee or trustees or separate trustee or trustees;
(iii) no power hereby given to, or exercisable by, any
such additional trustee or separate trustee shall be exercised
hereunder by such additional trustee or separate trustee except
jointly with, or with the consent of, the Pass Through Trustee;
and
(iv) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder.
If at any time the Pass Through Trustee shall deem it no longer necessary
or prudent in order to conform to any such law, the Pass Through Trustee
shall execute and deliver all instruments and agreements necessary or
proper to remove any additional trustee or separate trustee.
(e) Any request, approval or consent in writing by the Pass
Through Trustee to any additional trustee or separate trustee shall be
sufficient warrant to such additional trustee or separate trustee, as the
case may be, to take such action as may be so requested, approved or
consented to.
(f) Notwithstanding any other provision of this Section 10.06,
the powers of any additional trustee or separate trustee shall not exceed
those of the Pass Through Trustee hereunder.
SECTION 10.06. Preferential Claims. Reference is made to
Section 311 of the Trust Indenture Act. For purposes of Section 311(b)(4)
and (6) of such Act:
(a) "cash transaction" means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of
the goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, ▇▇▇▇ of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by
the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds
arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the
Company arising from the making, drawing, negotiating or incurring of the
draft, ▇▇▇▇ of exchange, acceptance or obligation.
ARTICLE XI
SUPPLEMENTS AND AMENDMENTS TO THIS
PASS THROUGH AGREEMENT AND OTHER DOCUMENTS
SECTION 11.01. Supplemental Agreements Without Consent of
Certificateholders. The Company and the Pass Through Trustee may enter
into an agreement or agreements supplemental hereto or to any applicable
Intercreditor Agreement or Liquidity Facility for one or more of the
following purposes:
(a) to provide for the formation of any Pass Through Trust, the
issuance of the related Series and the other matters contemplated by
Section 2.01(b) hereof;
(b) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Company herein and in each Series Supplement;
(c) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions as the Pass Through Trustee shall
consider to be for the protection of the Certificateholders of any
Series;
(d) to surrender any right or power conferred upon the Company
herein or in any Series Supplement;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any Series Supplement, any Intercreditor Agreement
or any Liquidity Facility that may be defective or inconsistent with any
other provision contained herein or in such Series Supplement,
Intercreditor Agreement or Liquidity Facility; or to modify any other
provision in regard to matters or questions arising under this Pass
Through Agreement or under any Series Supplement, any Intercreditor
Agreement and any Liquidity Facility as the Company may deem necessary
or desirable and that will not adversely affect the interests of the
related Certificateholders;
(f) to correct or amplify the description of any property at any
time that constitutes Trust Property or better to assure, convey and
confirm unto the Pass Through Trustee any such property to be included
in any such Trust Property;
(g) to evidence and provide for the acceptance and appointment
under this Pass Through Agreement by the Pass Through Trustee or a
successor trustee with respect to one or more Pass Through Trusts and
to add to or change any of the provisions hereof as may be necessary
to provide for or facilitate the administration of one or more Pass
Through Trusts by more than one trustee, pursuant to the requirements
of Section 10.03 hereof;
(h) to modify, eliminate or add to the provisions of this Pass
Through Agreement or any Series Supplement to the extent necessary to
continue the qualification of this Pass Through Agreement or such Series
Supplement (including any supplemental agreement) under the Trust
Indenture Act, or under any similar federal statute enacted after the
date hereof, and to add to this Pass Through Agreement or any Series
Supplement such other provisions as may be expressly permitted by the
Trust Indenture Act, excluding, however, the provisions referred to in
Section 316(a)(2) of the Trust Indenture Act as in effect on the date
hereof or any corresponding provision in any similar federal statute
enacted after the date hereof;
(i) to make any other amendments or modifications to this Pass
Through Agreement, provided such amendments or modifications shall only
apply to one or more Series to be issued after the date of such amendment
or modification; or
(j) to add, eliminate or change any provision hereunder so long as
such action shall not adversely affect the interests of the
Certificateholders of any Series;
provided that no such supplemental agreement shall cause any Pass Through
Trust to become taxable as an association within the meaning of Treasury
Regulation Section 301.7701-4.
The Pass Through Trustee is hereby authorized to join in the
execution of any such supplemental agreement, to make any further
appropriate agreements and stipulations that may be contained therein and
to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Pass Through Trustee shall not be obligated to
enter into any such supplemental agreement that adversely affects the Pass
Through Trustee's own rights, duties or immunities under this Pass Through
Agreement, any Series Supplement or otherwise, whether in its official or
individual capacity.
Any supplemental agreement contemplated by this Section 11.01
may be executed without the consent of the Certificateholders of the
Outstanding Pass Through Certificates of any Series, notwithstanding any of
the provisions of Section 11.02 hereof.
SECTION 11.02. Supplemental Agreements With Consent of
Certificate-holders. With the consent (evidenced as provided in Article
VI) of the Majority in Interest of Certificateholders of any Series, the
Company and the Pass Through Trustee may, from time to time and at any
time, enter into an agreement or agreements supplemental hereto for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Pass Through Agreement or of the
related Series Supplement, any Intercreditor Agreement or any Liquidity
Facility or of modifying in any manner the rights of the related
Certificateholders; provided, that no such supplemental agreement shall
cause any Pass Through Trust to become taxable as an association within the
meaning of Treasury Regulation Section 301.7701-4; and provided further
that, without the consent of each Certificateholder of such Series (or the
proxy therefor), no such amendment of or supplement to this Pass Through
Agreement or such related Series Supplement, or modification of the terms
of, or consent under, any thereof, shall:
(a) modify any of the provisions of Section 7.10 or this Section
11.02,
(b) reduce the amount or extend the time of payment of any amount
owing or payable on the related Equipment Certificates or
distributions to be made on any related Pass Through Certificate
pursuant to Article V, or alter the currency in which any amount
payable under any such Pass Through Certificate is to be paid, or
impair the right of any related Pass Through Certificateholder to
commence legal proceedings to enforce a right to receive payment
hereunder,
(c) reduce, modify or amend any indemnities in favor of any
Certificateholder (except as consented to by each such Certificateholder
adversely affected thereby (or the proxy therefor)), or
(d) create or permit the creation of any Lien on the related Trust
Property or any part thereof, or deprive any related
Certificateholder of the benefit of the related Pass Through Trust
with respect to the related Trust Property, whether by disposition of
such Trust Property or otherwise, except as provided in Section 7.02
or in connection with the exercise of remedies under Article VII.
(e) waive, amend or modify the priority of distributions of any
Intercreditor Agreement in a manner adverse to the Certificateholder.
Upon the request of the Company and upon the filing with the
Pass Through Trustee of evidence of the consent of the applicable
Certificateholders required under this Section 11.02 and other documents,
if any, required by Section 6.01, the Pass Through Trustee shall join with
the Company in the execution of such supplemental agreement unless such
supplemental agreement affects the Pass Through Trustee's own rights,
duties or immunities under this Pass Through Agreement or the related
Series Supplement or otherwise, in which case the Pass Through Trustee may
in its discretion, but shall not be obligated to, enter into such
supplemental agreement.
It shall not be necessary for the consent of the
Certificateholders of any Series under this Section 11.02 to approve the
particular form of any proposed supplemental agreement, but it shall be
sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Pass
Through Trustee of any supplemental agreement relating to any Pass Through
Trust pursuant to the provisions of this Section 11.02, the Pass Through
Trustee shall mail a notice thereof by first-class mail to the related
Certificateholders at their addresses as they shall appear on the related
Register, setting forth in general terms the substance of such supplemental
agreement. Any failure of the Pass Through Trustee to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental agreement.
SECTION 11.03. Effect of Supplemental Agreements. Upon the
execution of any supplemental agreement pursuant to the provisions hereof
and of any applicable Series Supplement, this Pass Through Agreement and
such Series Supplement shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities hereunder and under the related Pass
Through Trust of the Pass Through Trustee, the Company and the related
Certificateholders shall thereafter be determined, exercised and enforced
hereunder and thereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
agreement shall be and be deemed to be part of the terms and conditions of
this Pass Through Agreement and such Pass Through Trust for any and all
purposes.
SECTION 11.04. Documents to Be Given to Trustee. The Pass
Through Trustee, subject to the provisions of Sections 8.02 and 8.03
hereof, may receive an Opinion of Counsel as conclusive evidence that any
such supplemental agreement complies with the applicable provisions of this
Pass Through Agreement and any applicable Series Supplement.
SECTION 11.05. Notation on Pass Through Certificates in
Respect of Supplemental Agreements. Pass Through Certificates of any
Series authenticated and delivered after the execution of any supplemental
agreement relating to such Series pursuant to the provisions of this
Article XI may bear a notation in form approved by the Pass Through Trustee
as to any matter provided for by such supplemental agreement. If the
Company or the Pass Through Trustee shall so determine, new Pass Through
Certificates for such Series so modified as to conform, in the opinion of
the Company and the Pass Through Trustee, to any modification of this Pass
Through Agreement contained in any such supplemental agreement may be
provided by the Company, executed and authenticated by the Pass Through
Trustee and delivered in exchange for the Outstanding Pass Through
Certificates of such Series.
SECTION 11.06. Trust Indenture Act. Any supplemental
agreement executed pursuant to the terms of this Article XI shall on the
date of the execution thereof conform to the provisions of the Trust
Indenture Act as in force on such date.
SECTION 11.07. Revocation and Effect of Consents. Until an
amendment or waiver becomes effective, a consent to it by a
Certificateholder is a continuing consent by such Certificateholder and
every subsequent Certificateholder of the related Pass Through Certificate,
even if notation of the consent is not made on such Pass Through
Certificate. However, any such Certificateholder or subsequent
Certificateholder may revoke the consent as to his or her Pass Through
Certificate if the Pass Through Trustee receives the notice of revocation
before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every
Certificateholder affected by such amendment or waiver.
SECTION 11.08. Amendments, Waivers, etc., of Related Indenture
Documents. If the Pass Through Trustee, as holder of any Equipment
Certificate in trust for the benefit of the Certificateholders of any
Series or as Controlling Party, receives a request for a consent to any
modification, amendment or supplement to any related Indenture or other
related Indenture Document or to give any consent, waiver, authorization or
approval under such related Indenture or such other related Indenture
Documents, the Pass Through Trustee shall forthwith notify each
Certificateholder of such Series, as shown on the related Register as of
such date, of such request. Such notice shall request instructions from
such Certificateholders with respect to such request. Subject to Section
7.10 hereof, the Pass Through Trustee shall, as the holder of such
Equipment Certificate, consent or vote with respect thereto in the same
proportion as so instructed by the respective Certificateholders of the
related Pass Through Certificates. Notwithstanding the foregoing, but
subject to Section 7.09 hereof and any Intercreditor Agreement, if an Event
of Default shall have occurred and be continuing, the Pass Through Trustee
may, in its own discretion and at its own direction, consent and notify the
Related Indenture Trustee of such consent to any modification, amendment,
supplement or waiver under any related Indenture Document.
ARTICLE XII
TERMINATION OF PASS THROUGH TRUSTS;
UNCLAIMED MONEYS
SECTION 12.01. Termination of Pass Through Trusts. For any Pass
Through Trust created by this Pass Through Agreement as supplemented by a
related Series Supplement, such Pass Through Trust and the respective
obligations and responsibilities of the Company and the Pass Through
Trustee under such Pass Through Trust shall terminate upon the distribution
to all Certificateholders of the related Series and the Pass Through
Trustee of all amounts required to be distributed to them pursuant to this
Pass Through Agreement and the related Series Supplement and the
disposition of all property held as part of the Trust Property of such Pass
Through Trust; provided that in no event shall such Pass Through Trust
continue beyond the final expiration date determined as provided in such
Series Supplement.
Notice of termination of any Pass Through Trust, specifying the
applicable Distribution Date upon which the Certificateholders of the
related Series may surrender their Pass Through Certificates to the Pass
Through Trustee for payment of the final distribution and cancellation
thereof, shall be mailed promptly by the Pass Through Trustee to such
Certificateholders not earlier than the 60th day and not later than the
20th day next preceding such final distribution specifying (i) the
Distribution Date upon which such final distribution will be made and that
such distribution will be made only upon presentation and surrender of the
related Pass Through Certificates at the office or agency of the Pass
Through Trustee specified therein, (ii) the amount of any such final
distribution, and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable. The Pass Through Trustee shall notify
the related Registrar at the time such Certificateholders are notified of
such final distribution. Upon presentation and surrender of the Pass
Through Certificates of such Series, the Pass Through Trustee shall
distribute all amounts distributable on such Pass Through Certificates on
such Distribution Date pursuant to Section 5.02 hereof.
SECTION 12.02. Application by Pass Through Trustee of Funds
Deposited for Payment of Pass Through Certificates. Subject to Section
12.04 hereof, all moneys deposited with the Pass Through Trustee for
payment pursuant to Section 12.01 hereof shall be held in trust and applied
by it to the prompt payment, either directly or through any Paying Agent,
to the Certificateholders of the particular Pass Through Certificates for
the payment or redemption of which such moneys have been deposited with the
Pass Through Trustee, of all sums due and to become due thereon; but such
money need not be segregated from other funds except to the extent required
by law.
In the event that all of the Certificateholders of such Series
shall not surrender their Certificates for cancellation within six months
after the date specified in the above-mentioned written notice, the Pass
Through Trustee shall give a second written notice to the remaining
Certificateholders of such Series to surrender their Certificates for
cancellation and to receive the final distribution with respect thereto.
SECTION 12.03. Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of any Pass Through Trust,
all moneys then held by any Paying Agent for such Pass Through Trust shall,
upon demand of the Pass Through Trustee, be repaid to it and thereupon such
Paying Agent shall be released from all further liability with respect to
such moneys.
SECTION 12.04. Transfer of Moneys Held by Pass Through Trustee
and Paying Agent Unclaimed for Two Years and Eleven Months. Any moneys
deposited with or paid to the Pass Through Trustee or any Paying Agent to
be distributed on any Pass Through Certificate and not applied but
remaining unclaimed for two years and eleven months after the date upon
which such amount has become due and payable, shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be paid to the applicable Related Indenture
Trustees by the Pass Through Trustee or such Paying Agent and the
applicable Certificateholder shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to such Related Indenture Trustees for any payment
which such Certificateholder may be entitled to collect, and all liability
of the Pass Through Trustee, or any Paying Agent with respect to such
moneys shall thereupon cease.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Capacity in Which Acting. The Pass Through
Trustee acts hereunder and under any Pass Through Trust not in its
individual capacity but solely as trustee except as expressly provided
herein or in the related Series Supplement.
SECTION 13.02. No Legal Title to Trust Property in
Certificateholders. No Certificateholder of any Series shall have legal
title to any part of the Trust Property of the related Pass Through Trust.
No transfer, by operation of law or otherwise, of any Pass Through
Certificate or other right, title and interest of any Certificateholder in
and to such Trust Property or under the related Pass Through Trust shall
operate to terminate such Pass Through Trust or entitle such
Certificateholder or any successor or transferee of such Certificateholder
to an accounting or to the transfer to it of legal title to any part of
such Trust Property.
SECTION 13.03. Certificates Nonassessable and Fully Paid. No
Certificateholder of any Series shall be personally liable for obligations
of the related Pass Through Trust, the Fractional Undivided Interests
represented by the Pass Through Certificates of such Series shall be
nonassessable for any losses or expenses of such Pass Through Trust or for
any reason whatsoever, and upon authentication of such Pass Through
Certificates by the Pass Through Trustee pursuant to Section 3.02 hereof,
such Pass Through Certificates will be and shall be deemed fully paid. No
Certificateholder of such Series shall have any right (except as expressly
provided herein) to vote or in any manner otherwise control the operation
and management of the related Trust Property, the related Pass Through
Trust, or the obligations of the parties hereto, nor shall anything set
forth herein, in the related Series Supplement or in the related Pass
Through Certificates be construed so as to constitute the
Certificateholders of such Series from time to time as partners or members
of an association.
SECTION 13.04. Pass Through Agreement for the Benefit of the
Company, the Pass Through Trustee and the Certificateholders. Nothing in
this Pass Through Agreement, in any Series Supplement or in any Pass
Through Certificate, whether express or implied, shall be construed to give
to any person other than the Company, the Pass Through Trustee, as trustee
and in its individual capacity, and the Certificateholders of the
respective related Series any legal or equitable right, remedy or claim
under or in respect of this Pass Through Agreement, any Pass Through Trust
or any such Pass Through Certificate.
SECTION 13.05. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder of any Series shall not
operate to terminate this Pass Through Agreement or the related Pass
Through Trust, nor entitle such Certificateholder's legal representatives
or heirs to claim an accounting or to take any action or commence any
proceeding in any court for a partition or winding up of such Pass Through
Trust, nor otherwise affect the rights, obligations, and liabilities of the
parties hereto or any of them. No Certificateholder of any Series shall be
entitled to revoke the related Pass Through Trust.
SECTION 13.06. Notices. Unless otherwise expressly specified
or permitted by the terms hereof or the applicable Series Supplement with
respect to any Pass Through Trust, all notices, requests, demands,
authorizations, directions, consents, waivers or documents provided or
permitted by this Pass Through Agreement or such Series Supplement to be
made, given, furnished or filed with respect to such Pass Through Trust
shall be in writing, mailed by certified mail, postage prepaid, or by
confirmed facsimile, and (i) if to ______________________, as Pass Through
Trustee, at its office at __________________________________,
________________, (fax (___) ___-____), Attention:
___________________________ or (ii) if to the Company, addressed to it at
its office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (fax (901)
▇▇▇-▇▇▇▇), Attention: Vice President and Treasurer, with a copy to
Executive Vice President and General Counsel at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (fax (▇▇▇) ▇▇▇-▇▇▇▇), and as to any Series, as
otherwise specified in the Series Supplement related thereto. The Company
or the Pass Through Trustee as to any Series, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications. Any party hereto may change the address to which notices
to such party will be sent by giving notice of such change to the other
party to this Pass Through Agreement.
Where this Pass Through Agreement or any Series Supplement
provides for notice to Certificateholders of any Series, such notice shall
be sufficiently given (unless otherwise expressly provided herein) if in
writing and mailed, first-class postage prepaid, to each such
Certificateholder entitled thereto, at his or her last address as it
appears in the related Register. In any case where notice to
Certificateholders of any Series is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Certificateholder shall affect the sufficiency of such notice with respect
to other Certificateholders of such Series. Where this Pass Through
Agreement or any Series Supplement provides for notice in any manner, such
notice may be waived in writing by the person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Certificateholders shall
be filed with the Pass Through Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon
such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to any
Certificateholders when such notice is required to be given pursuant to any
provision of this Pass Through Agreement or any related Series Supplement,
then any manner of giving such notice as shall be satisfactory to the Pass
Through Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 13.07. Officer's Certificate and Opinion of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Company to the Pass Through Trustee to take any action, the Company shall
furnish to the Pass Through Trustee (i) an Officer's Certificate stating
that all conditions precedent, if any, provided for in this Pass Through
Agreement and the applicable Series Supplement relating to the proposed
action have been complied with and that the proposed action is in
conformity with the requirements of this Pass Through Agreement and such
Series Supplement, or (ii) an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or demand as
to which the furnishing of such documents is specifically required by any
provision of this Pass Through Agreement or such Series Supplement relating
to such particular application or demand, no additional certificate or
opinion need be furnished.
Each certificate or opinion required by this Pass Through
Agreement or any Series Supplement and delivered to the Pass Through
Trustee with respect to compliance with a condition or covenant provided
for in this Pass Through Agreement or such Series Supplement, except for
the certificate required by Section 4.03(d) hereof shall include (a) a
statement that the person making such certificate or opinion has read such
covenant or condition, (b) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based, (c) a statement that,
in the opinion of such person, he or she has made such examination or
investigation as is 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 (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters information with respect to which
is in the possession of the Company, upon the certificate, statement or
opinion of or representations by an officer or officers of the Company
unless such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his or her
certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel thereto may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or representations by
an accountant or firm of accountants employed by the Company unless such
officer or counsel, as the case may be, knows that the certificate or
opinion or representations with respect to the accounting matters upon
which such certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same
are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Pass Through Trustee shall contain a statement
that such firm is independent.
SECTION 13.08. Conflict of Any Provision of Pass Through
Agreement with the Trust Indenture Act. If and to the extent that any
provision of this Pass Through Agreement limits, qualifies or conflicts
with another provision included in this Pass Through Agreement by operation
of Sections 310 to 317, inclusive, of the Trust Indenture Act (an
"incorporated provision"), such incorporated provision shall control.
SECTION 13.09. Severability. Any provision of this Pass
Through Agreement or any Series Supplement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or thereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 13.10. No Oral Modifications or Continuing Waivers.
No terms or provisions of this Pass Through Agreement, any Series
Supplement, or any Pass Through Certificates may be changed, waived,
discharged or terminated orally, but only by an instrument in writing
signed by the party or other person against whom enforcement of the change,
waiver, discharge or termination is sought; and any waiver of the terms
hereof or thereof shall be effective only in the specific instance and for
the specific purpose given.
SECTION 13.11. Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit
of, each of the parties hereto and the successors and permitted assigns of
each, all as herein provided. Any request, notice, direction, consent,
waiver or other instrument or action by any Certificateholder shall bind
the successors and assigns of such Certificateholder.
SECTION 13.12. Headings. The headings of the various Articles
and Sections herein and in the table of contents hereto are for the
convenience of reference only and shall not define or limit any of the
terms or provisions hereof.
SECTION 13.13. Normal Commercial Relations. Anything
contained in this Pass Through Agreement to the contrary notwithstanding,
the Pass Through Trustee and any Certificateholder, or any bank or other
affiliate of any such party, may conduct any banking or other financial
transactions, and have banking or other commercial relationships, with the
Company fully to the same extent as if this Pass Through Agreement were not
in effect, including without limitation the making of loans or other
extensions of credit to the Company for any purpose whatsoever, whether
related to any of the transactions contemplated hereby or otherwise.
SECTION 13.14. Governing Law; Counterpart Form. THROUGH
CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. This Pass Through Agreement may be
executed by the parties hereto in separate counterparts, each of which when
so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 13.15. Distributions Due on Days Other than Business
Days. If, for any Pass Through Trust, any Distribution Date is not a
Business Day, then such distribution need not be made on such date, but may
be made on the next succeeding Business Day with the same force and effect
as if made on the applicable Distribution Date, and no interest shall
accrue for the intervening period.
SECTION 13.16. Registration of Equipment Certificates in Name
of Subordination Agent. If a Pass Through Trust is party to an
Intercreditor Agreement, the Pass Through Trustee agrees that all Equipment
Certificates to be purchased by such Pass Through Trust shall be issued in
the name of the Subordination Agent under such Intercreditor Agreement or
its nominee and held by such Subordination Agent in trust for the benefit
of the Certificateholders, or, if not so held, such Subordination Agent or
its nominee shall be reflected as the owner of such Equipment Certificates
in the register of the issuer of such Equipment Certificates.
IN WITNESS WHEREOF, the parties hereto have caused this Pass
Through Agreement to be duly executed this _____ day of _________, ____ by
their respective officers thereunto duly authorized, and acknowledge that
this Pass Through Agreement has been made and delivered in the City of New
York, and this Pass Through Agreement shall be effective only upon such
execution and delivery.
______________________________________,
not in its individual capacity,
except as otherwise expressly
provided herein, but solely
as Pass Through Trustee
By: __________________________________________
Name:
Title:
FEDERAL EXPRESS CORPORATION
By: __________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Treasurer and
Managing Director - Structured Finance
Exhibit A
to
Pass Through Agreement
FORM OF PASS THROUGH CERTIFICATE
[THIS IS A REGISTERED GLOBAL CERTIFICATE REFERRED TO IN
SECTION 2.12 OF THE PASS THROUGH TRUST AGREEMENT.
Unless this pass through certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Pass Through Trustee or its agent for registration or
transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or
to such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE THEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede
& Co., has an interest herein.]
_________
This paragraph is required only if the Pass Through Certificates are
to be represented by the Registered Global Certificate.
FEDERAL EXPRESS CORPORATION PASS THROUGH TRUST, 199__ - __
199_ Pass Through Certificate, Series ___
CUSIP ______
Final Regular Distribution Date: _______
evidencing a fractional undivided interest in a pass
through trust, the property of which includes certain
Equipment Certificates.
Certificate No. _______
Applicable interest rate on Equipment Certificates held in
Pass Through Trust, 199__ - _____: ____%.
$___________ Fractional Undivided Interest representing _______ of the Pass
Through Trust per $1,000 face amount.
THIS CERTIFIES THAT ______________, for value received, is the
registered owner of a $_________ (_____________ dollars) Fractional
Undivided Interest in the Federal Express Corporation Pass Through Trust,
199_-_ (the "Pass Through Trust") created and declared by
___________________________________, as pass through trustee (the "Pass
Through Trustee"), pursuant to the Pass Through Trust Agreement dated as of
__________, _____ (the "Pass Through Agreement"), as supplemented by Series
Supplement __ thereto dated ____________, 199_ (the "Series Supplement")
between the Pass Through Trustee and Federal Express Corporation, a
Delaware corporation (the "Company"), a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings
assigned to them in the Pass Through Agreement and the Series Supplement.
This Pass Through Certificate is one of the duly authorized
Pass Through Certificates designated as "Federal Express Corporation 199_
Pass Through Certificates, Series _______." This Pass Through Certificate
is issued under and is subject to the terms, provisions, and conditions of
the Pass Through Agreement, the Series Supplement and any Intercreditor
Agreement, to which the Certificateholder of this Pass Through Certificate
by virtue of the acceptance hereof assents and by which such
Certificateholder is bound. The property of the Pass Through Trust
includes certain Equipment Certificates and all rights of the Pass Through
Trust to receive any payments under any Intercreditor Agreement or
Liquidity Facility (the "Trust Property"). Each series of Equipment
Certificates is secured by a security interest in (A) an aircraft leased to
or owned by the Company and, in the case of a leased aircraft, an
assignment of the rights of the Related Owner Trustee with respect to such
aircraft, including the right to receive rent and other amounts payable
under the related Lease or Indenture with respect to such aircraft or (B) a
collateral account holding securities purchased with the proceeds of the
sale of such series of Equipment Certificates. The Pass Through
Certificates represent fractional undivided interests in the Pass Through
Trust and the Trust Property, and have no rights, benefits or interests in
respect of any other separate trust established pursuant to the terms of
the Pass Through Agreement for any other series of Pass Through
Certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Pass Through
Agreement, the Series Supplement and any Intercreditor Agreement, from
funds then available to the Pass Through Trustee, there will be distributed
on each ______ and _____ (a "Regular Distribution Date"), commencing on
_______, __, to the Person in whose name this Pass Through Certificate is
registered at the close of business on the 15th day preceding the
applicable Regular Distribution Date, an amount in respect of the Scheduled
Payments on the Equipment Certificates due on such Regular Distribution
Date, equal to the product of the percentage interest in the Pass Through
Trust evidenced by this Pass Through Certificate and an amount equal to the
sum of such Scheduled Payments.
Subject to and in accordance with the terms of the Pass Through
Agreement, the Series Supplement and any Intercreditor Agreement, if
Special Payments on the Equipment Certificates are received by the Pass
Through Trustee, from funds then available to the Pass Through Trustee,
there shall be distributed on the applicable Special Distribution Date, to
the Person in whose name this Pass Through Certificate is registered at the
close of business on the 15th day preceding such Special Distribution Date,
an amount in respect of such Special Payments on the Equipment
Certificates, equal to the product of the percentage interest in the Pass
Through Trust evidenced by this Pass Through Certificate and an amount
equal to the sum of such Special Payments so received.
If a Distribution Date is not a Business Day, distribution
shall be made on the immediately following Business Day with the same force
and effect as if made on such Distribution Date and no interest shall
accrue during the intervening period. The Special Distribution Date shall
be the ______ day of the month determined as provided in the Pass Through
Agreement and the Series Supplement, except in certain circumstances, in
which case it will be the date of receipt of proceeds by the Pass Through
Trustee as provided in the Series Supplement. The Pass Through Trustee
shall mail notice of each Special Payment and the Special Distribution Date
therefor to the Certificateholder of this Pass Through Certificate.
Distributions on this Pass Through Certificate will be made by
the Pass Through Trustee to the Person entitled thereto, without the
presentation or surrender of this Pass Through Certificate or the making of
any notation hereon. Except as otherwise provided in the Pass Through
Agreement and notwithstanding the above, the final distribution on this
Pass Through Certificate will be made after notice mailed by the Pass
Through Trustee of the pendency of such distribution and only upon
presentation and surrender of this Pass Through Certificate at the office
or agency of the Pass Through Trustee specified in such notice.
[NO EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR INDIVIDUAL
RETIREMENT ACCOUNT OR PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (HEREINAFTER COLLECTIVELY REFERRED TO AS AN
"ERISA" PLAN), MAY ACQUIRE OR HOLD ANY OF THE PASS THROUGH CERTIFICATES.
THE PURCHASE BY ANY PERSON OF ANY PASS THROUGH CERTIFICATE CONSTITUTES A
REPRESENTATION BY SUCH PERSON TO FEDERAL EXPRESS CORPORATION, THE RELATED
OWNER PARTICIPANTS, THE RELATED OWNER TRUSTEES, THE RELATED INDENTURE
TRUSTEES AND THE PASS THROUGH TRUSTEE OR THEIR RESPECTIVE SUCCESSORS, AS
THE CASE MAY BE, THAT SUCH PERSON IS NOT AN ERISA PLAN AND THAT SUCH PERSON
IS NOT ACQUIRING, AND HAS NOT ACQUIRED, SUCH PASS THROUGH CERTIFICATE WITH
ASSETS OF AN ERISA PLAN.]
This Pass Through Certificate shall be governed by and construed in
accordance with the laws of the State of New York.
_________
Subject to revision as set forth in Section 6.06 hereof.
Reference is hereby made to the further provisions of this Pass
Through Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been
executed by the Pass Through Trustee, by manual signature, this Pass
Through Certificate shall not be entitled to any benefit under the related
Pass Through Trust or be valid for any purpose.
IN WITNESS WHEREOF, the Pass Through Trustee has caused this Pass
Through Certificate to be duly executed.
FEDERAL EXPRESS CORPORATION
PASS THROUGH TRUST, SERIES 199__-__
By: __________________________,
as Pass Through Trustee
By: ___________________________
Authorized Signatory
[FORM OF THE PASS THROUGH TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
This is one of the Pass Through Certificates referred to in the
within-mentioned Pass Through Agreement and related Series Supplement.
_________________________,
as Pass Through Trustee
By: ______________________
Authorized Signatory
[Reverse of Pass Through Certificate]
The Pass Through Certificates do not represent a direct
obligation of, or an obligation guaranteed by, or an interest in, the
Company or the Pass Through Trustee or any affiliate thereof. The Pass
Through Certificates are limited in right of payment, all as more
specifically set forth on the face hereof and in the Pass Through Agreement
and the Series Supplement. All payments or distributions made to
Certificateholders under the Pass Through Agreement shall be made only from
the Trust Property and only to the extent that the Pass Through Trustee
shall have sufficient income or proceeds from the Trust Property to make
such payments in accordance with the terms of the Pass Through Agreement
and the Series Supplement.
Each Certificateholder of this Pass Through Certificate, by its
acceptance hereof, agrees that it will look solely to the income and
proceeds from the Trust Property to the extent available for distribution
to such Certificateholder as provided in the Pass Through Agreement and the
Series Supplement.
In connection with withholding taxes, under certain
circumstances the Pass Through Trustee may retain certain amounts otherwise
distributable to a Certificateholder. The purchase by any
Certificateholder of any Pass Through Certificate constitutes the consent
of such Certificateholder to such retention in accordance with the terms of
the Pass Through Agreement.
This Pass Through Certificate does not purport to summarize the
Pass Through Agreement and the Series Supplement and reference is made to
the Pass Through Agreement and the Series Supplement for information with
respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby. A copy of the Pass Through Agreement may be
examined by any Certificateholder upon request, during normal business
hours at the principal office of the Pass Through Trustee, and at such
other places designated by the Pass Through Trustee.
As of the date of issuance of this Pass Through Certificate,
and assuming that no prepayment or default in respect of the Equipment
Certificates shall occur, the aggregate scheduled repayments of principal
on the Equipment Certificates for the Pass Through Trust and the resulting
Pool Factors for the Pass Through Trust after taking into account each such
repayment are set forth below:
Pass Through Trust, 199__-___
Regular Scheduled Principal
Distribution Date Payments on
Equipment Certificates Pool Factor
$ 0.0000000
The Pass Through Agreement and the Series Supplement permits, with
certain exceptions provided therein, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of
the Certificateholders under the Pass Through Trust at any time by the
Company and the Pass Through Trustee with the consent of the Majority In
Interest of Certificateholders in the Pass Through Trust. Any such consent
by the Certificateholder of this Pass Through Certificate shall be
conclusive and binding on such Certificateholder and upon all future
Certificateholders of this Pass Through Certificate and of any Pass Through
Certificate issued upon the transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent is made upon this Pass
Through Certificate. The Pass Through Agreement and the Series Supplement
also permits the amendment thereof, in certain limited circumstances,
without the consent of the Certificateholders of any of the Pass Through
Certificates.
As provided in the Pass Through Agreement and the Series
Supplement and subject to certain limitations set forth therein, the
transfer of this Pass Through Certificate is registrable in the Register
upon surrender of this Pass Through Certificate for registration of
transfer at the facilities or agencies maintained by the Pass Through
Trustee in its capacity as Registrar, or by any successor Registrar, duly
endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Pass Through Trustee and the Registrar duly executed by
the Certificateholder hereof or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Pass Through
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Pass Through Trust will be issued to
the designated transferee or transferees.
The Pass Through Certificates are issuable only as registered
Pass Through Certificates without coupons in minimum denominations of
$1,000 fractional undivided interest and integral multiples thereof. As
provided in the Pass Through Agreement and the Series Supplement and
subject to certain limitations set forth therein, the Pass Through
Certificates are exchangeable for new Pass Through Certificates of
authorized denominations evidencing the same aggregate Fractional Undivided
Interest in the Pass Through Trust, as requested by the Certificateholder
surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Pass Through Trustee may require payment of a
sum sufficient to cover any tax or governmental charge payable in
connection therewith.
The Pass Through Trustee, the Registrar, and any agent of the
Pass Through Trustee or the Registrar may treat the person in whose name
this Pass Through Certificate is registered as the owner hereof for all
purposes, and neither the Pass Through Trustee, the Registrar, nor any such
agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Pass
Through Agreement and the Series Supplement and the Pass Through Trust
created thereby shall terminate upon the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Pass
Through Agreement and the Series Supplement and the disposition of all
property held as part of the Trust Property.
Exhibit B
to
Pass Through Agreement
__________________________________________
SERIES SUPPLEMENT 199__-___
Dated __________, 199__
Between
___________________________________
as Pass Through Trustee,
and
FEDERAL EXPRESS CORPORATION
to
PASS THROUGH TRUST AGREEMENT
Dated as of _________, ____
$__________________
Federal Express Corporation
Pass Through Trust, 199__-___
Federal Express Corporation
199__ Pass Through Certificates,
Series ___
__________________________________________
ARTICLE I
CERTAIN DEFINITIONS
ARTICLE II
DESIGNATIONS; TRUST FORMATION;
ISSUANCE OF PASS THROUGH CERTIFICATES
SECTION 2.01. Designations; Aggregate Amount. ......................... 4
SECTION 2.02. Declaration of Trust; Authorization...................... 4
SECTION 2.03. Issuance of Pass Through Certifi-▇▇▇▇▇................... 5
SECTION 2.04. Purchase of Equipment Certificates. ..................... 5
SECTION 2.05. Representations and Warranties of the Company............ 5
SECTION 2.06. The Trustee. ............................................ 5
SECTION 2.07. Conditions Precedent..................................... 5
SECTION 2.08. Acceptance of Appointment of Pass Through Trustee........ 5
ARTICLE III
DISTRIBUTION AND RECORD DATES;
CERTIFICATE AND SPECIAL PAYMENT ACCOUNTS;
CONCERNING AUTHENTICATING AGENT, PAYING AGENT AND REGISTRAR AND
THE CERTIFICATEHOLDERS
SECTION 3.01. Distribution Dates. ..................................... 6
SECTION 3.02. Record Dates............................................. 6
SECTION 3.03. Certificate Account and Special Payments Account. ....... 6
SECTION 3.04. Form of Pass Through Certificates. ...................... 6
SECTION 3.05. Indenture Documents...................................... 7
SECTION 3.06. Appointment of Authenticating Agent; Paying Agent and
Registrar................................................ 7
SECTION 3.07. Predelivery Funding...................................... 7
SECTION 3.08. ERISA.................................................... 8
SECTION 3.09. Registered Global Certificate............................ 8
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Governing Law; Counterpart Form. ........................ 9
SECTION 4.02. Reports by the Company................................... 9
SECTION 4.03. Modification and Ratification of Pass Through Agreement.. 9
SECTION 4.04. Termination. ............................................ 9
Exhibit A Form of Pass Through Certificate
SERIES SUPPLEMENT 199__-___
SERIES SUPPLEMENT 199__-___, dated _________, 199__ (this "Series
Supplement"), between FEDERAL EXPRESS CORPORATION, a Delaware corporation (the
"Company") and ______________________________________, a _____________________
company, as Pass Through Trustee (the "Pass Through Trustee"), to the Pass
Through Trust Agreement, dated as of ________, ____ (the "Pass Through
Agreement"), between the Company and ___________________________________, a
___________________________.
RECITALS
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article I hereof;
WHEREAS, Section 2.01 of the Pass Through Agree-ment provides,
among other things, that the Company and
the Pass Through Trustee may execute and deliver one or more series
supplements, each for the purpose of forming a separate pass through trust
for the benefit of the certificate-holders of the series of pass through
certificates to be issued pursuant to such pass through trust, appointing
an institution to act as Pass Through Trustee if different from the
institution executing the Pass Through Agreement, establishing certain
terms of such pass through certificates, and pursuant to which the pass
through certificates of such series shall be executed and authenticated by
the Pass Through Trustee and delivered as directed by the Company;
WHEREAS, pursuant to the Participation Agreements, the Company
has agreed to cause the Equipment Certificates to be issued and sold to the
Pass Through Trustee, and the Pass Through Trustee has agreed to purchase
the Equipment Certificates, which will be held in trust as Trust Property
for the benefit of the Certificateholders;
WHEREAS, in order to facilitate such sale, the Company has
agreed, pursuant to the Underwriting Agreement, to cause the Pass Through
Trustee to issue and sell the Pass Through Certificates to the
Underwriters;
WHEREAS, pursuant to the Pass Through Agreement and the terms
of this Series Supplement, the Pass Through Trustee will execute,
authenticate and deliver the Pass Through Certificates to the Underwriters
upon receipt by the Pass Through Trustee of the purchase price therefor,
which will be applied in accordance with this Series Supplement to purchase
the Equipment Certificates;
WHEREAS, the Pass Through Trustee hereby declares the creation
of this Pass Through Trust for the benefit of the Certificateholders, and
the initial Certificateholders of such Pass Through Certificates, as the
grantors of such Pass Through Trust, by their respective acceptances of
such Pass Through Certificates, join in the creation of such Pass Through
Trust;
WHEREAS, to facilitate the sale of the Equipment Certificates
to, and the purchase of the Equipment Certificates by, the Pass Through
Trustee on behalf of this Pass Through Trust, the Company has duly
authorized the execution and delivery of this Series Supplement as the
"issuer," as such term is defined in and solely for purposes of the
Securities Act, of the Pass Through Certificates and as the "obligor," as
such term is defined in and solely for purposes of the Trust Indenture Act,
with respect to all such Pass Through Certificates; and
WHEREAS, this Series Supplement is subject to the provisions of
the Trust Indenture Act and shall, to the extent applicable, be governed by
such provisions;
IT IS HEREBY COVENANTED AND AGREED by and between the parties
hereto as follows:
ARTICLE I
CERTAIN DEFINITIONS
All terms used in this Series Supplement that are defined in
the Pass Through Agreement, either directly or by reference therein, have
the meanings assigned to them therein as supplemented by this Article I, if
applicable, except to the extent the context requires otherwise. Any such
defined term that is defined in the Pass Through Agreement as relating to a
particular Pass Through Trust or Series rather than to any Pass Through
Trust or Series generally shall, when used in this Series Supplement,
relate solely to the Federal Express Corporation Pass Through Trust, 199__-
___, or the Federal Express Corporation 199__ Pass Through Certificates,
Series ___, as the case may be, whether or not expressly so stated herein.
"Aircraft" means ___________________________ aircraft ,
including the Engines (as such term is defined in the related Participation
Agreement) relating thereto, (i) leased or to be leased by the Owner
Trustee to the Company pursuant to a Lease or (ii) to be purchased by the
Company as provided, and under the circumstances specified, in Section 3.07
hereof) and, collectively, means all of the foregoing.
"Authenticating Agent" has the meaning set forth in Section
3.06 hereof.
"Certificate Account" means the Certificate Account specified
in Section 3.03 hereof.
"Certificateholders" means the Certificateholders of the Series
of Pass Through Certificates designated in Section 2.01 hereof.
"Collateral Account" means the Collateral Account established
pursuant to the Indenture for Federal Express Corporation Trust No.
N_____FE into which the proceeds of sale of the related Equipment
Certificates will be deposited.
"Cut-off Date for Pass Through Trust" is inapplicable.
"Delivery Date" means, for any Equipment Certificates, the
Refunding Date (as such term is defined in the related Participation
Agreement) for such Equipment Certificates.
"Equipment Certificates" means those Equipment Certificates
listed in Schedule I hereto.
"Intercreditor Agreement" has the meaning defined in Article I
of the Pass Through Agreement.
"Issuance Date" means the date defined as the Closing Time in
the Underwriting Agreement.
"Liquidity Facility" has the meaning defined in Article I of
the Pass Through Agreement.
"Liquidity Provider" means _______________________________.
"Participation Agreements" means those Participation Agreements
listed in Schedule I hereto.
"Pass Through Certificates" means the Pass Through Certificates
designated in Section 2.01 hereof.
"Pass Through Trust," "this Pass Through Trust" and other like
words means the Pass Through Trust designated in Section 2.01 hereof.
"Paying Agent" means the Person specified as such in Section
3.06 hereof.
"Record Date" means any Record Date specified in Section 3.02
hereof.
"Registrar" means the Person specified as such in Section 3.06
hereof.
"Regular Distribution Date" means any Regular Distribution Date
specified in Section 3.01 hereof.
"Special Distribution Date" means, for any Special Payment, the
Special Distribution Date for such Special Payment specified in Section
3.01 hereof.
"Special Payments Account" means the Special Payments Account
specified in Section 3.03 hereof.
"Subordination Agent" shall have the meaning specified therefor
in any Intercreditor Agreement.
"Trust Property" means (i) all money, instruments, including
the Equipment Certificates that have been issued by the related Owner
Trustee and delivered to and accepted by the Pass Through Trustee for the
benefit of the Certificateholders, and other property held as the property
of this Pass Through Trust, including all distributions thereon and
proceeds thereof and (ii) all rights of the Pass Through Trust and the Pass
Through Trustee, on behalf of the Pass Through Trust, under any
Intercreditor Agreement and the Liquidity Facility, including, without
limitation, all rights to receive certain payments thereunder, and all
monies paid to the Pass Through Trustee on behalf of the Pass Through Trust
pursuant to any Intercreditor Agreement or the Liquidity Facility.
"Underwriters" means the several Underwriters named in the
Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement dated
_________, 199__ among the Company and ____________________________.
ARTICLE II
DESIGNATIONS; TRUST FORMATION;
ISSUANCE OF PASS THROUGH CERTIFICATES
SECTION 2.01. Designations; Aggregate Amount. The Pass
Through Trust created hereby shall be designated Federal Express
Corporation Pass Through Trust, 199__-___ (herein some-times called this
"Pass Through Trust"). The Pass Through Certificates evidencing Fractional
Undivided Interests in such Pass Through Trust shall be designated as the
Federal Express Corporation 199__ Pass Through Certificates, Series ___
(herein sometimes called the "Series ___ Pass Through Certifi-▇▇▇▇▇"). The
Series ___ Pass Through Certificates shall be the only instruments
evidencing a fractional undivided interest in such Pass Through Trust.
Except as provided in Sections 2.08, 2.09 and 2.11 of the Pass
Through Agreement, the aggregate amount of Series ___ Pass Through
Certificates that may be authenticated, delivered and outstanding under
this Series Supplement is limited to $_________________.
SECTION 2.02. Declaration of Trust; Authorization. Each
initial Certificateholder, by its acceptance of any Series ___ Pass Through
Certificate is hereby deemed (1) as grantor, to join in the creation and
declaration of this Pass Through Trust and (2) as beneficiary of such Pass
Through Trust, to authorize and direct the Pass Through Trustee to execute
and deliver all documents to which the Pass Through Trustee is a party that
may be necessary or desirable to consummate the transactions contemplated
hereby and to exercise its rights and perform its duties under the
Participation Agreements, the Indentures, the Pass Through Agreement and
this Series Supplement.
The Pass Through Trustee hereby acknowledges and accepts this
grant of trust and declares that it will hold the Trust Property as Pass
Through Trustee of this Pass Through Trust for the use and benefit of the
Certificate-holders.
SECTION 2.03. Issuance of Pass Through Certifi-▇▇▇▇▇. Subject
to the terms set forth herein, on the Issuance Date (i) the Company shall
direct the Underwriters to execute a wire transfer or intra-bank transfer
to the Pass Through Trustee in the amount of the total proceeds payable by
such Underwriters pursuant to the Underwriting Agreement with respect to
the Series ___ Pass Through Certificates and (ii) the Pass Through Trustee
shall deliver the Series ___ Pass Through Certificates to the Underwriters
as provided in the Underwriting Agreement upon receipt by the Pass Through
Trustee of such proceeds.
SECTION 2.04. Purchase of Equipment Certificates. On the
Issuance Date, the Pass Through Trustee shall pur-chase, in accordance with
Section 2.02 of the Pass Through Agreement, each of the Equipment
Certificates upon the satisfaction or waiver of the conditions for such
purchase by the Pass Through Trustee set forth in the related Participation
Agreement.
SECTION 2.05. Representations and Warranties of the Company.
All of the representations and warranties of the Company set forth or
incorporated by reference in Section 1 of the Underwriting Agreement are
incorporated by reference in this Series Supplement as if set forth herein
and the Company represents and warrants that such representations and
warranties are true and correct on the date hereof, except to the extent
that such representations and warranties expressly relate solely to an
earlier date or later date (in which case such representations and
warranties were correct on and as of such earlier date or will be correct
on and as of such later date, as the case may be).
SECTION 2.06. The Trustee. The Trustee is hereby directed to
execute and deliver the Intercreditor Agreement on or prior to the Issuance
Date in the form delivered to the Trustee by the Company. The Trustee
represents and warrants that the Intercreditor Agreement will be duly
executed and delivered by one of its officers who is duly authorized to
execute and deliver such document on its behalf.
SECTION 2.07. Conditions Precedent. The obliga-tions of the
Pass Through Trustee to participate in the transactions described in
Sections 2.03 and 2.04 hereof are subject to (i) receipt by the Pass
Through Trustee of a certificate of the Company to the same effect as the
certifi-cate of the Company delivered to the Underwriters pursuant to
Section 5(c) of the Underwriting Agreement, and (ii) satis-faction or
waiver of the conditions for the purchase by the Underwriters of the Pass
Through Certificates set forth in Section 5 of the Underwriting Agreement,
which satisfaction or waiver for the purposes hereof shall be conclusively
demonstrated by the receipt by the Pass Through Trustee of the total
proceeds payable by such Underwriters pursuant to the Underwriting
Agreement with respect to the Series ___ Pass Through Certificates.
SECTION 2.08. Acceptance of Appointment of Pass Through
Trustee. __________________________ represents and warrants that it is
qualified to serve as Pass Through Trustee and satisfies the criteria
specified in Section 10.02 of the Pass Through Agreement for eligibility as
a Pass Through Trustee. _______________________________ hereby agrees to
serve as Pass Through Trustee for the Pass Through Certificates and
acknowledges its appointment as Pass Through Trustee in accordance with the
provisions of, and subject to all of the terms and conditions set forth in,
the Pass Through Agreement and this related Series Supplement upon the
execution and delivery of this Series Supplement.
ARTICLE III
DISTRIBUTION AND RECORD DATES;
CERTIFICATE AND SPECIAL PAYMENT ACCOUNTS;
CONCERNING AUTHENTICATING AGENT, PAYING AGENT AND REGISTRAR AND
THE CERTIFICATEHOLDERS
SECTION 3.01. Distribution Dates. The Regular Distribution
Dates are each _____________ and ____________, commencing on ____________,
199__. The Special Distribution Date for any month in which a Special
Payment is to be distributed will be the __________ day of such month,
except that the Special Distribution Date for any Special Payment received
by the Pass Through Trustee in connection with a prepayment of any
Equipment Certificate pursuant to Section 6.02(a)(i), 6.02(a)(v) or, in the
case of the Indenture in respect of Federal Express Corporation Trust No.
N_____FE, 6.02(a)(vi) of the related Indenture will correspond to the date
of the receipt of such Special Payment by the Pass Through Trustee. Notice
of such Special Payment shall be mailed as soon as practicable after
receipt by the Pass Through Trustee of the notice of such prepayment.
SECTION 3.02. Record Dates. The Record Dates for the Regular
Distribution Dates are __________ and ___________, respectively, and the
Record Date for any Special Distribu-tion Date is the fifteenth day
preceding such Special Distri-bution Date, in any event, whether or not
such date is a Business Day.
SECTION 3.03. Certificate Account and Special Payments
Account. In accordance with Section 5.01(a) of the Pass Through Agreement
and upon receipt of any Scheduled Payment, the Pass Through Trustee shall
immediately deposit such Scheduled Payment into the Certificate Account, a
separate and non-interest bearing account designated by the Pass Through
Trustee to be used for such purpose. In accordance with Section 5.01(b) of
the Pass Through Agreement and upon receipt of any Special Payment, the
Pass Through Trustee shall immediately deposit such Special Payment into
the Special Payments Account, a separate and, except as provided in Section
5.04 of the Pass Through Agreement, non-interest bearing account designated
by the Pass Through Trustee to be used for such purpose.
SECTION 3.04. Form of Pass Through Certificates. Subject to
Section 2.07 of the Pass Through Agreement, each of the Series ___ Pass
Through Certificates will be substan-tially in the form of Exhibit A
hereto. The Series ___ Pass Through Certificates will be issued pursuant
to a book-entry system in the form of one Registered Global Certificate and
subject to the conditions set forth in the Letter of Representations among
the Company, the Pass Through Trustee and The Depository Trust Company.
SECTION 3.05. Indenture Documents. The related Indenture
Documents are listed in Schedule I hereto.
SECTION 3.06. Appointment of Authenticating Agent; Paying
Agent and Registrar. (a) The Pass Through Trustee may appoint an
authenticating agent (the "Authenticating Agent") with respect to the Pass
Through Certificates which shall be authorized to act on behalf of the Pass
Through Trustee to authenticate the Pass Through Certificates issued upon
original issue and upon exchange or registration of transfer thereof or
pursuant to Section 2.09 of the Pass Through Agreement. Pass Through
Certificates so authenti-cated shall be entitled to the benefits of the
Pass Through Agreement and this Series Supplement and shall be valid and
obligatory for all purposes as if authenticated by the Pass Through
Trustee. Whenever reference is made in the Pass Through Agreement or this
Series Supplement to the authenti-ca-tion and delivery of Pass Through
Certificates by the Pass Through Trustee or the Pass Through Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Pass Through Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf
of the Pass Through Trustee by an Authenticating Agent.
(b) The Paying Agent, Registrar and Authenticating Agent for
the Series ___ Pass Through Certificates initially shall be
________________________________________.
________________________________________ hereby represents and warrants to
the Company that it is qualified to serve as Paying Agent, Registrar and
Authenticating Agent under the provisions of, and subject to all of the
terms and conditions set forth in, the Pass Through Agreement and this
related Series Supplement.
SECTION 3.07. Predelivery Funding. During the period between
the date of issuance of Equipment Certificates by the Owner Trustee in
respect of Federal Express Corporation Trust No. N_____FE and the delivery
date of the related Aircraft, such Equipment Certificates will not be
secured by such Aircraft or the related Lease, but will be secured by the
Collateral Account. Pursuant to the related Indenture, the Owner Trustee
will deposit the proceeds from the sale of the related Equipment
Certificates into the Collateral Account for the benefit of the related
Indenture Trustee.
Sums deposited in the Collateral Account will be invested in:
(a) direct obligations of the United States of America or obligations fully
guaranteed by the United States of America; (b) commercial paper rated A-
1/P-1 by Standard & Poor's Ratings Group and ▇▇▇▇▇'▇ Investors Service,
Inc., respectively or, if such ratings are unavailable, rated by any
nationally recognized rating organization in the United States equal to the
highest rating assigned by such rating organization; (c) overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers; and (d) overnight repurchase agreements with respect
to the securities described in clause (a) above entered into with an office
of a bank or trust company which is located in the United States of America
of any bank or trust company which is organized under the laws of the
United States or any state thereof and has capital, surplus and undivided
profits aggregating at least $500 million. The Company will pay to the
Indenture Trustee on demand any losses on such investments. On the
delivery date of such Aircraft, upon satisfaction or waiver of the
conditions to the Indenture Trustee's release of amounts in the Collateral
Account, the Indenture Trustee will release such amounts. Such amounts
will be applied by the Indenture Trustee in accordance with the related
Participation Agreement to pay a portion of the purchase price for such
Aircraft on the delivery date thereof.
The Company will pay to the Indenture Trustee on such delivery
date the excess, if any, of the portion of the purchase price for such
Aircraft required to be paid by the Indenture Trustee over the amounts
released from the Collateral Account net of investment earnings (which will
be paid to the Company). The Company is obligated to cause the proceeds of
the Equipment Certificates to be utilized to acquire such Aircraft in all
circumstances other than the failure of the manufacturer to deliver such
Aircraft. Accordingly, if the related Owner Participant does not make
available its portion of the purchase price on the delivery date of such
Aircraft or the Company does not enter into the related Lease on or prior
to ______________, 199__ for any reason other than the failure of the
manufacturer to deliver such Aircraft, the Company will purchase such
Aircraft and assume on a fully recourse basis all of the obligations of the
Owner Trustee under the related Equipment Certificates pursuant to an
indenture containing terms substantially identical to those contained in
the Leases and Indentures in respect of Federal Express Corporation Trust
No. N____FE. In such case, the Indenture Trustee will release the amounts
in the Collateral Account to the Company to pay a portion of the purchase
price for such Aircraft.
SECTION 3.08. ERISA. [Any Person who is, or who in acquiring a
Pass Through Certificate is or may be using the assets of, an employee
benefit plan subject to Title I of The Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or an individual retirement account or
plan subject to Section 4975 of the Code, or any trust established under
any such plan or account, may acquire or hold any of the Pass Through
Certificates, if such Person determines either that an administrative or a
statutory exemption from the prohibited transaction rules under Section 406
of ERISA and Section 4975 of the Code is applicable to its purchase and
holding of a Pass Through Certificate or that its purchase and holding of a
Pass Through Certificate will not result in a prohibited transaction under
Section 406 of ERISA and Section 4975 of the Code.]
_________
Subject to revision as set forth in Section 6.06 of The Pass Through
Agreement.
SECTION 3.09. Registered Global Certificate. The Series ___
Pass Through Certificates are to be issued in whole in the form of a
Registered Global Certificate, and Section 2.12 of the Pass Through
Agreement shall, accordingly, be applicable. The Depository for the
Registered Global Certificate and the Letter of Representations is The
Depository Trust Company.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Governing Law; Counterpart Form. AS PROVIDED IN
SECTION 13.14 OF THE PASS THROUGH AGREEMENT, THIS SERIES SUPPLEMENT AND EACH
SERIES ___ PASS THROUGH CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
This Series Supplement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall
be an original, but all such counterparts shall together constitute but one
and the same instrument.
SECTION 4.02. Reports by the Company. In addition to the
reports required to be provided by the Company pursuant to Section 4.03 of
the Pass Through Agreement, the Company agrees to furnish to the Pass
Through Trustee from time to time, such other financial information as the
Pass Through Trustee may reasonably request.
SECTION 4.03. Modification and Ratification of Pass Through
Agreement. The Pass Through Agreement is incor-porated herein by reference
in its entirety, and shall be deemed to be a part of this Series Supplement
as if set forth in full herein, and is in all respects ratified and
confirmed, as supplemented and modified by this Series Supple-ment.
SECTION 4.04. Termination. In no event shall this Pass
Through Trust continue beyond the expiration of 21 years after the death of
the last survivor of ▇▇▇▇▇▇ ▇▇▇▇▇▇, Governor of New York State, living on
the date of this Series Supplement.
IN WITNESS WHEREOF, the parties have caused their names to be
signed hereto by their respective officers thereunto duly authorized, all
on the day and year first above written.
FEDERAL EXPRESS CORPORATION
By: _________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Treasurer and
Managing Director -
Structured Finance
_____________________________________,
as Pass Through Trustee
By: _________________________________
Name:
Title:
Exhibit A
to
Series Supplement
FORM OF PASS THROUGH CERTIFICATE
THIS IS A REGISTERED GLOBAL CERTIFICATE REFERRED TO IN
SECTION 2.12 OF THE PASS THROUGH TRUST AGREEMENT.
[Unless this pass through certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Pass Through Trustee or its agent for registration or
transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or
to such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE THEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede
& Co., has an interest herein.]
_________
This paragraph is required only if the Pass Through Certificates are to
be represented by the Registered Global Certificate.
FEDERAL EXPRESS CORPORATION PASS THROUGH TRUST, 199__-___
199__ Pass Through Certificate, Series ___
CUSIP _________________
Final Regular Distribution Date: __________, ______ evidencing a fractional
undivided interest in a pass through trust, the property of which includes
certain Equipment Certificates.
Certificate No. _______
Applicable interest rate on Equipment Certificates held in Pass Through
Trust, 199__-___: _____%.
$___________ Fractional Undivided Interest representing _______ of the
Pass Through Trust per $1,000 face amount.
THIS CERTIFIES THAT ____________________, for value received, is
the registered owner of a $_________ (_____________ dollars) Fractional
Undivided Interest in the Federal Express Corporation Pass Through Trust,
199__-___ (the "Pass Through Trust") created and declared by
___________________________, as pass through trustee (the "Pass Through
Trustee"), pursuant to the Pass Through Trust Agreement dated as of
_________, ____ (the "Pass Through Agreement"), as supplemented by Series
Supplement 199__-___ thereto dated _________, 199__ (the "Series
Supplement") between the Pass Through Trustee and Federal Express
Corporation, a Delaware corporation (the "Company"), a summary of certain
of the pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Pass Through Agreement and the Series
Supplement.
This Pass Through Certificate is one of the duly authorized
Pass Through Certificates designated as "Federal Express Corporation 199__
Pass Through Certificates, Series ___." This Pass Through Certificate is
issued under and is subject to the terms, provisions, and conditions of the
Pass Through Agreement, the Series Supplement and any Intercreditor
Agreement, to which the Certificateholder of this Pass Through Certificate
by virtue of the acceptance hereof assents and by which such
Certificateholder is bound. The property of the Pass Through Trust
includes certain Equipment Certificates and all rights of the Pass Through
Trust to receive payments under the Intercreditor Agreement and the
Liquidity Facility (the "Trust Property"). Each series of Equipment
Certificates is secured by a security interest in (A) an aircraft leased to
or owned by the Company and, in the case of a leased aircraft, an
assignment of the rights of the Related Owner Trustee with respect to such
aircraft, including the right to receive rent and other amounts payable
under the related Lease or Indenture with respect to such aircraft or (B) a
collateral account holding securities purchased with the proceeds of the
sale of such series of Equipment Certificates. Each of the Pass Through
Certificates represents a Fractional Undivided Interest in the Pass Through
Trust and the Trust Property, and has no rights, benefits or interests in
respect of any other separate trust established pursuant to the terms of
the Pass Through Agreement for any other series of Pass Through
Certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Pass Through
Agreement, the Series Supplement and any Intercreditor Agreement, from
funds then available to the Pass Through Trustee, there will be distributed
on each ___________ and ___________ (a "Regular Distribution Date"),
commencing on ___________, 199__, to the Person in whose name this Pass
Through Certificate is registered at the close of business on the 15th day
preceding the applicable Regular Distribution Date, an amount in respect of
the Scheduled Payments on the Equipment Certificates due on such Regular
Distribution Date, equal to the product of the percentage interest in the
Pass Through Trust evidenced by this Pass Through Certificate and an amount
equal to the sum of such Scheduled Payments.
Subject to and in accordance with the terms of the Pass Through
Agreement, the Series Supplement and any Intercreditor Agreement, if
Special Payments on the Equipment Certificates are received by the Pass
Through Trustee, from funds then available to the Pass Through Trustee,
there shall be distributed on the applicable Special Distribution Date, to
the Person in whose name this Pass Through Certificate is registered at the
close of business on the 15th day preceding such Special Distribution Date,
an amount in respect of such Special Payments on the Equipment
Certificates, equal to the product of the percentage interest in the Pass
Through Trust evidenced by this Pass Through Certificate and an amount
equal to the sum of such Special Payments so received.
If a Distribution Date is not a Business Day, distribution shall be
made on the immediately following Business Day with the same force and
effect as if made on such Distribution Date and no interest shall accrue
during the intervening period. The Special Distribution Date shall be the
______ day of the month determined as provided in the Pass Through
Agreement and the Series Supplement, except in certain circumstances, in
which case it will be the date of receipt of proceeds by the Pass Through
Trustee as provided in the Series Supplement. The Pass Through Trustee
shall mail notice of each Special Payment and the Special Distribution Date
therefor to the Certificateholder of this Pass Through Certificate.
Distributions on this Pass Through Certificate will be made by the
Pass Through Trustee to the Person entitled thereto, without the
presentation or surrender of this Pass Through Certificate or the making of
any notation hereon. Except as otherwise provided in the Pass Through
Agreement and notwithstanding the above, the final distribution on this
Pass Through Certificate will be made after notice is mailed by the Pass
Through Trustee of the pendency of such distribution and only upon
presentation and surrender of this Pass Through Certificate at the office
or agency of the Pass Through Trustee specified in such notice.
[Any Person who is, or who in acquiring this Pass Through Certificate
is or may be using the assets of, an employee benefit plan subject to Title
I of The Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or an individual retirement account or plan subject to Section
4975 of the Code, or any trust established under any such plan or account,
may acquire or hold any of the Pass Through Certificates, if such Person
determines either that an administrative or a statutory exemption from the
prohibited transaction rules under Section 406 of ERISA and Section 4975 of
the Code is applicable to its purchase and holding of this Pass Through
Certificate or that its purchase and holding of this Pass Through
Certificate will not result in a prohibited transaction under Section 406
of ERISA and Section 4975 of the Code.]
This Pass Through Certificate shall be governed by and construed in
accordance with the laws of the State of New York.
Reference is hereby made to the further provisions of this Pass
Through Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by
the Pass Through Trustee, by manual signature, this Pass Through
Certificate shall not be entitled to any benefit under the Pass Through
Trust or be valid for any purpose.
_________
Subject to revision as set forth in Section 6.06 of The Pass Through
Agreement.
IN WITNESS WHEREOF, the Pass Through Trustee has caused this Pass
Through Certificate to be duly executed.
FEDERAL EXPRESS CORPORATION
PASS THROUGH TRUST, 199__-___
_______________________________________,
as Pass Through Trustee
By: ________________________________
Authorized Signatory
[FORM OF THE PASS THROUGH TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
This is one of the Pass Through Certificates referred to in the
within-mentioned Pass Through Agreement and the Series Supplement.
_______________________________________,
as Pass Through Trustee
By: ________________________________
Authorized Signatory
[Reverse of Pass Through Certificate]
The Pass Through Certificates do not represent a direct
obligation of, or an obligation guaranteed by, or an interest in, the
Company or the Pass Through Trustee or any affiliate thereof. The Pass
Through Certificates are limited in right of payment, all as more
specifically set forth on the face hereof and in the Pass Through Agreement
and the Series Supplement. All payments or distributions made to
Certificateholders under the Pass Through Agreement shall be made only from
the Trust Property and only to the extent that the Pass Through Trustee
shall have sufficient income or proceeds from the Trust Property to make
such payments in accordance with the terms of the Pass Through Agreement
and the Series Supplement. Each Certificateholder of this Pass Through
Certificate, by its acceptance hereof, agrees that it will look solely to
the income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Pass Through
Agreement and the Series Supplement.
In connection with withholding taxes, under certain
circumstances the Pass Through Trustee may retain certain amounts otherwise
distributable to a Certificateholder. The purchase by any
Certificateholder of any Pass Through Certificate constitutes the consent
of such Certificateholder to such retention in accordance with the terms of
the Pass Through Agreement.
This Pass Through Certificate does not purport to summarize the
Pass Through Agreement and the Series Supplement and reference is made to
the Pass Through Agreement and the Series Supplement for information with
respect to the interests, rights, benefits, obligations, proceeds and
duties evidenced hereby. A copy of the Pass Through Agreement may be
examined by any Certificateholder upon request during normal business hours
at the principal office of the Pass Through Trustee, and at such other
places designated by the Pass Through Trustee.
As of the date of issuance of this Pass Through Certificate,
and assuming that no prepayment or default in respect of payment on the
Equipment Certificates shall occur, the aggregate scheduled repayments of
principal on the Equipment Certificates for the Pass Through Trust and the
resulting Pool Factors for the Pass Through Trust after taking into account
each such repayment are set forth below:
Pass Through Trust, 199__-___
Scheduled
Principal
Payments on
Regular Equipment
Distribution Dates Certificates Pool Factor
The Pass Through Agreement and the Series Supple-ment permit, with
certain exceptions provided therein, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of
the Certificate-holders under the Pass Through Trust at any time by the
Company and the Pass Through Trustee with the consent of the Majority In
Interest of Certificateholders in the Pass Through Trust. Any such consent
by the Certificate-holder of this Pass Through Certificate shall be
conclusive and binding on such Certificateholder and upon all future
Certificateholders of this Pass Through Certificate and of any Pass Through
Certificate issued upon the transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent is made upon this Pass
Through Certificate. The Pass Through Agreement and the Series Supplement
also permit the amendment thereof, in certain limited circumstances,
without the consent of the Certificate-holders of any of the Pass Through
Certificates.
As provided in the Pass Through Agreement and the Series Supplement
and subject to certain limitations set forth therein, the transfer of this
Pass Through Certificate is registrable in the Register upon surrender of
this Pass Through Certificate for registration of transfer to the Pass
Through Trustee in its capacity as Registrar, or by any successor
Registrar, duly endorsed or accompanied by a written instrument of transfer
in form satisfactory to the Pass Through Trustee and the Registrar duly
executed by the Certificateholder hereof or such Certificateholder's
attorney duly authorized in writing, and thereupon one or more new Pass
Through Certificates of authorized denomina-tions evidencing the same
aggregate Fractional Undivided Interest in the Pass Through Trust will be
issued to the designated transferee or transferees.
The Pass Through Certificates are issuable only as registered Pass
Through Certificates without coupons in minimum denominations of $1,000
fractional undivided interests and integral multiples thereof. As provided
in the Pass Through Agreement and the Series Supplement and subject to
certain limitations set forth therein, the Pass Through Certificates are
exchangeable for new Pass Through Certifi-▇▇▇▇▇ of authorized denominations
evidencing the same aggregate Fractional Undivided Interest in the Pass
Through Trust, as requested by the Certificateholder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Pass Through Trustee may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Pass Through Trustee, the Registrar, and any agent of the Pass
Through Trustee or the Registrar may treat the person in whose name this
Pass Through Certificate is registered as the owner hereof for all
purposes, and neither the Pass Through Trustee, the Registrar, nor any such
agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Pass Through
Agreement and the Series Supplement and the Pass Through Trust created
thereby shall terminate upon the distribution to Certificateholders of all
amounts required to be distributed to them pursuant to the Pass Through
Agreement and the Series Supplement and the disposition of all property
held as part of the Trust Property.
Schedule I
to
Series Supplement
Federal Express Corporation Pass Through Trust, 199__-___
Equipment Certificates; Related Indenture Documents
Equipment Certificates (Federal Express Corporation Trust No. N___ FE):
Interest Rate: ________%
Maturity: _____________
Principal Amount: $____________
Related Indenture Documents: