EXHIBIT 4.1
MOBIL CORPORATION,
MOBIL MARINE FINANCE COMPANY I INC.,
MOBIL MARINE FINANCE COMPANY II INC.,
MOBIL LEASE FINANCE COMPANY INC.,
MOBIL CHEMICAL FINANCE (TEXAS) INC.,
MOBIL CHEMICAL FINANCE (LOUISIANA) INC.,
MOBIL PETRORAIL FINANCE INC.,
MOBIL TRANSPORT FINANCE COMPANY INC.,
MOBIL EQUIPMENT FINANCE COMPANY INC.
and
STATE STREET BANK AND TRUST COMPANY
as Trustee
_______________________________
PASS THROUGH TRUST AGREEMENT
Dated as of October 4, 1996
_______________________________
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.1. Definitions............................................. 2
Section 1.2. Compliance Certificates and Opinions.................... 11
Section 1.3. Form of Documents Delivered to Trustee.................. 12
Section 1.4. Acts of Certificateholders.............................. 12
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF SECURED NOTES
Section 2.1. Amount Unlimited, Issuable in Series.................... 14
Section 2.2. Acquisition of Secured Notes............................ 16
Section 2.3. Acceptance by Trustee................................... 18
Section 2.4. Limitation of Powers.................................... 18
ARTICLE III
THE CERTIFICATES
Section 3.1. Form, Denomination and Execution of Certificates........ 19
Section 3.2. Authentication of Certificates.......................... 19
Section 3.3. Temporary Certificates.................................. 20
Section 3.4. Registration of Transfer and Exchange of Certificates... 20
Section 3.5. Mutilated, Destroyed, Lost or Stolen Certificates....... 21
Section 3.6. Persons Deemed Owners................................... 21
Section 3.7. Cancellation............................................ 21
Section 3.8. Limitation of Liability................................. 21
Section 3.9. Book-Entry and Definitive Certificates.................. 22
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.1. Certificate Account and Special Payments Account........ 24
Section 4.2. Distributions from Certificate Account and
Special Payments Account.............................. 25
i
Section 4.3. Statements to Certificateholders........................ 26
Section 4.4. Investment of Special Payment Moneys.................... 27
ARTICLE V
THE GUARANTOR AND THE COMPANIES
Section 5.1. Maintenance of Corporate Existence...................... 27
Section 5.2. Consolidation, Merger, etc.............................. 27
Section 5.3. Right of Guarantor to Act............................... 28
ARTICLE VI
DEFAULT
Section 6.1. Events of Default....................................... 28
Section 6.2. Incidents of Sale of Secured Notes...................... 29
Section 6.3. Judicial Proceedings Instituted by Trustee, Trustee
May Bring Suit........................................ 30
Section 6.4. Control by Certificateholders........................... 30
Section 6.5. Waiver of Past Defaults................................. 30
Section 6.6. Right of Certificateholders to Receive Payments
Not to Be Impaired.................................... 31
Section 6.7. Certificateholders May Not Bring Suit Except
Under Certain Conditions.............................. 31
Section 6.8. Remedies Cumulative..................................... 32
Section 6.9. Undertaking to Pay Court Costs.......................... 32
ARTICLE VIII
THE TRUSTEE
Section 7.1. Notice of Defaults...................................... 33
Section 7.2. Certain Rights of Trustee............................... 33
Section 7.3. Not Responsible for Recitals or Issuance of
Certificates.......................................... 34
Section 7.4. May Hold Certificates................................... 35
Section 7.5. Money Held in Trust..................................... 35
Section 7.6. Compensation and Reimbursement.......................... 35
Section 7.7. Corporate Trustee Required, Eligibility................. 36
Section 7.8. Resignation and Removal, Appointment of Successor....... 37
Section 7.9. Acceptance of Appointment by Successor.................. 39
Section 7.10. Merger, Conversion, Consolidation or
Succession to Business............................... 39
Section 7.11. Maintenance of Agencies................................ 40
Section 7.12. Money for Certificate Payments to Be Held in Trust..... 41
ii
Section 7.13. Registration of Secured Notes in Trustee's Name........ 41
Section 7.14. Representations and Warranties of Trustee.............. 41
Section 7.15. Withholding Taxes, Information Reporting............... 42
Section 7.16. Trustee's Liens........................................ 43
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.1. Names and Addresses of Certificateholders............... 43
Section 8.2. Preservation of Information, Communications to
Certificateholders.................................... 43
Section 8.3. Reports by Trustee...................................... 43
Section 8.4. Reports by the Guarantor and each Company............... 44
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.1. Supplemental Agreements Without Consent of
Certificateholders.................................... 45
Section 9.2. Supplemental Agreements with Consent of
Certificateholders.................................... 46
Section 9.3. Documents Affecting Trustee............................. 47
Section 9.4. Execution of Supplemental Agreements.................... 47
Section 9.5. Effect of Supplemental Agreements....................... 47
Section 9.6. Conformity with Trust Indenture Act..................... 47
Section 9.7. Reference in Certificates to Supplemental Agreements.... 47
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.1. Amendments and Supplements to Indenture and
Other Note Documents................................. 47
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.1. Termination of the Trusts.............................. 48
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ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1. Limitation on Rights of Certificateholders............. 49
Section 12.2. Certificates Nonassessable and Fully Paid.............. 49
Section 12.3. Notices................................................ 49
Section 12.4. Governing Law.......................................... 51
Section 12.5. Severability of Provisions............................. 51
Section 12.6. Trust Indenture Act Controls........................... 51
Section 12.7. Effect of Headings and Table of Contents............... 51
Section 12.8. Successors and Assigns................................. 51
Section 12.9. Benefits of Agreement.................................. 51
Section 12.10. Legal Holidays........................................ 51
Section 12.11. Counterparts.......................................... 52
EXHIBIT A - Form of Certificate
iv
Reconciliation and tie between Pass Through Trust Agreement dated as of October
4, 1996 and the Trust Indenture Act of 1939. This reconciliation does not
constitute part of the Pass Through Trust Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
--------------- -----------------
310(a)(1) 7.7
(a)(2) 7.7
312(a) 3.9; 8.1; 8.2
313 8.3
314(a) 8.4(a) - (c)
(a)(4) 8.4(d)
(c)(1) 1.2
(c)(2) 1.2
(d)(1) 7.12
11.1
(d)(2) 7.12; 11.1
(d)(3) 2.1
(e) 1.2
315(b) 8.3
316(a)(last sentence) 1.1
(a)(1)(A) 6.4
(a)(1)(B) 6.5
(b) 6.6
(c) 1.4(d)
317(a)(1) 6.3
(b) 7.12
318(a) 12.6
v
This PASS THROUGH TRUST AGREEMENT, dated as of ___________, 1996, among
Mobil Corporation, a Delaware corporation (the "Guarantor"), Mobil Marine
Finance Company I Inc., a Delaware corporation, Mobil Marine Finance Company II
Inc., a Delaware corporation, Mobil Lease Finance Company Inc., a Delaware
corporation, Mobil Chemical Finance (Texas) Inc., a Delaware corporation, Mobil
Chemical Finance (Louisiana) Inc., a Delaware corporation, Mobil Petrorail
Finance Inc., a Delaware corporation, Mobil Transport Finance Company Inc., a
Delaware corporation, Mobil Equipment Finance Company Inc., a Delaware
corporation (each a "Company" and collectively the "Companies") and State Street
Bank and Trust Company, a Massachusetts trust company, as Trustee, is made with
respect to the formation from time to time of separate Mobil Corporation
Pass Through Trusts, and the issuance from time to time of separate series of
Pass Through Certificates representing fractional undivided interests in the
respective Trusts.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, from time to time the Guarantor and one or more Companies and the
Trustee may enter into a Trust Supplement (this and certain other defined terms
used herein are defined in Section 1.1) pursuant to which the Trustee shall
declare the creation of a separate Trust for the benefit of the Holders of the
series of Certificates to be issued in respect of such Trust, and the initial
Holders of the Certificates of such series, as the grantors of such Trust, by
their respective acceptances of the Certificates of such series, shall join in
the creation of such Trust with the Trustee;
WHEREAS, all Certificates to be issued in respect of each separate Trust
will be issued as a separate series pursuant to this Agreement, will evidence
fractional undivided interests in such Trust and will have no rights, benefits
or interests in respect of any other separate Trust or the property held
therein;
WHEREAS, from time to time, pursuant to the terms and conditions of this
Agreement with respect to each separate Trust formed hereunder, the Trustee on
behalf of such Trust shall purchase one or more issues of Secured Notes having
the same interest rate as, and final maturity dates not later than the final
Regular Distribution Date of, the series of Certificates issued in respect of
such Trust and shall hold such Secured Notes in trust for the benefit of the
Certificateholders of such Trust;
WHEREAS, to facilitate the sale of Secured Notes to, and the purchase of
Secured Notes by, the Trustee on behalf of each Trust created from time to time
pursuant to this Agreement, the Guarantor and each Company has duly authorized
the execution and delivery of this Basic Agreement and are undertaking to
perform certain administrative and ministerial duties hereunder and to pay the
fees and expenses of the Trustee; and
WHEREAS, this Basic Agreement, as supplemented from time to time, is
subject to the provisions of the Trust Indenture Act of 1939, as amended, and
shall, to the extent applicable, be governed by such provisions;
NOW THEREFORE, in consideration of the mutual agreements herein contained,
and of other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. (a) For all purposes of this Basic Agreement,
-----------
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms used herein that are defined in this Article have the
meanings assigned to them in this Article, and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, or by SEC rule
under the Trust Indenture Act, have the meanings assigned to them therein;
(3) all references in this Basic Agreement to designated "Articles",
"Sections", "Subsections" and other subdivisions are to the designated
Articles, Sections, Subsections and other subdivisions of this Basic
Agreement;
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Basic Agreement as a whole and not to any
particular Article, Section or other subdivision;
(5) the term "this Agreement" (as distinguished from "this Basic
Agreement") refers, unless the context otherwise requires, to this Basic
Agreement as supplemented by the Trust Supplement creating a particular
Trust and establishing the series of Certificates issued or to be issued in
respect thereof, with reference to such Trust and such series of
Certificates, as this Basic Agreement as so supplemented may be further
supplemented with respect to such Trust and such series of Certificates;
and
(6) unless the context otherwise requires, whenever words "including",
"include" or "includes" are used herein, it shall be deemed followed by the
phrase "without limitation".
(b) For all purposes of this Basic Agreement, the following
capitalized terms have the following respective meanings:
Act: With respect to any Certificateholder, has the meaning specified
---
in Section 1.4.
2
Affiliate: With respect to any specified Person, means any other
---------
Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such Person. For the purposes of this
definition, "control", when used with respect to any specified Person,
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
Agreement: Has the meaning specified in Section 1.1(a)(5).
---------
Applicable Company: With respect to any Trust means the Company or
------------------
Companies that execute and deliver the Trust Supplement relating thereto
and are liable as lessee under each related Lease or, if the related
Property is not leased to a Company, are liable on the related Secured
Notes. If with respect to any Trust there is more than one Applicable
Company, all references in this Agreement to "Applicable Company" shall be
deemed to include, as the context may require, each Applicable Company and
each request, consent or other action by the "Applicable Company" requires
the request, consent or other action, severally, of each Applicable
Company, it being understood that the obligations of each such Applicable
Company with respect to such Trust shall be several and not joint, and that
such obligations shall be, as the context may require, determined by
reference to the relative obligations of such Applicable Company under each
Lease related to such Trust on which such Applicable Company is liable, or
if the related Property is not leased to such Applicable Company, on each
series of Secured Notes related to such Trust on which such Applicable
Company is liable.
Authorized Agent: With respect to the Certificates of any series,
----------------
means any Paying Agent or Registrar for the Certificates of such series.
Basic Agreement: Means this Pass Through Trust Agreement, as the same
---------------
may from time to time be supplemented, amended or modified, but not as
supplemented by any Trust Supplement.
Book-Entry Certificates: With respect to the Certificates of any
-----------------------
series, means a beneficial interest in the Certificates of such series,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 3.9.
Business Day: With respect to the Certificates of any series, means
------------
any day other than a Saturday, a Sunday or a day on which commercial banks
are required or authorized to close in New York, New York and, so long as
any such Certificate is outstanding, a city and state in which the Trustee
or any related Loan Trustee maintains its Corporate Trust Office or
receives and disburses funds in respect of such Certificates or the related
Secured Notes, as the case may be.
3
Certificate: Means any one of the certificates executed and
-----------
authenticated by the Trustee, substantially in the form of Exhibit A
hereto.
Certificate Account: With respect to the Certificates of any series,
-------------------
means the account or accounts created and maintained for such series
pursuant to Section 4.1(a) and the related Trust Supplement.
Certificate Owner: With respect to the Certificates of any series,
-----------------
means, for purposes of Section 3.9, the Person who has a beneficial
ownership interest in a Book-Entry Certificate of such series.
Certificateholder or Holder: With respect to the Certificates of any
---------------------------
series, means the Person in whose name a Certificate of such series is
registered in the Register for Certificates of such series.
Clearing Agency: Means an organization registered as a "clearing
---------------
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
Clearing Agency Participant: Means a broker, dealer, bank, other
---------------------------
financial institution or other Person for whom from time to time a Clearing
Agency effects, directly or indirectly, book-entry transfers and pledges of
securities deposited with the Clearing Agency.
Company: Means any of Mobil Marine Finance Company I Inc., Mobil
-------
Marine Finance Company II Inc., Mobil Lease Finance Company Inc., Mobil
Chemical Finance (Texas) Inc., Mobil Chemical Finance (Louisiana) Inc.,
Mobil Petrorail Finance Inc., Mobil Transport Finance Company Inc. or Mobil
Equipment Finance Company Inc. or their respective successors in interest
pursuant to Section 5.2; provided, that with respect to any Trust created
--------
pursuant to a Trust Supplement, "Company" means any Applicable Company or
Applicable Companies which are a party to such Trust Supplement.
Corporate Trust Office: With respect to the Trustee or any Loan
----------------------
Trustee, means the office of such trustee in the city at which at any
particular time its corporate trust business in respect of the related
Certificates or Secured Notes, as the case may be, shall be principally
administered.
Cut-off Date: With respect to the Certificates of any series, means
------------
the date designated as such in this Agreement.
Definitive Certificates: With respect to the Certificate of any
-----------------------
series, has the meaning specified in Section 3.9.
Direction: Has the meaning specified in Section 1.4(c).
---------
4
ERISA: Means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time, or any successor federal statute.
Escrow Account: With respect to the Certificates of any series, has
--------------
the meaning specified in Section 2.2(b).
Escrowed Funds: With respect to any Trust, has the meaning specified
--------------
in Section 2.2(b).
Event of Default: Means, in respect of any Trust, the occurrence of
----------------
an Indenture Event of Default under any Indenture pursuant to which Secured
Notes held by such Trust were issued.
Fractional Undivided Interest: Means the fractional undivided
-----------------------------
interest in a Trust that is evidenced by a Certificate relating to such
Trust.
Guarantor: Means Mobil Corporation, a Delaware corporation, or its
---------
successor in interest.
Holder: See "Certificateholder or Holder".
------
Indenture: With respect to any Trust, means each of the one or more
---------
separate trust indenture and security agreements or similar documents
described in, or on a schedule attached to, the Trust Supplement creating
such Trust which relates to an issue of Secured Notes to be held in such
Trust; and Indentures means all of such agreements.
----------
Indenture Event of Default: With respect to any Indenture, means any
--------------------------
Indenture Event of Default (as such term is defined in such Indenture).
Initial Regular Distribution Date: With respect to the Certificates
---------------------------------
of any series, means the first Regular Distribution Date on which a
Scheduled Payment is to be made.
Issuance Date: With respect to the Certificates of any series, means
-------------
the date of the issuance of such Certificates.
Lease: With respect to any Secured Note, means any lease between an
-----
Owner Trustee, as the lessor, and a Company, as the lessee, referred to in
the related Indenture, as each such lease may be amended, modified or
supplemented in accordance with its terms; and Leases means all such
------
Leases.
Letter of Representations: With respect to the Certificates of any
-------------------------
series, means the agreement with the initial Clearing Agency relating to
such Certificates.
5
Loan Trustee: With respect to any Secured Note or the Indenture
------------
applicable thereto, means the bank or trust company designated as
"Indenture Trustee" under such Indenture, and any successor to such Loan
Trustee as such trustee; and Loan Trustees means all of the "Indenture
-------------
Trustees" under the Indentures.
Note Documents: With respect to any Secured Note, means the related
--------------
Indenture, Note Purchase Agreement and, if the related Property is leased
to a Company, the related Lease and the related Owner Trustee's Purchase
Agreement.
Note Purchase Agreement: With respect to the Certificates of any
-----------------------
series, means any note purchase, participation, refunding or similar
agreement providing for, among other things, the purchase of Secured Notes
by the Trustee on behalf of the relevant Trust; and Note Purchase
-------------
Agreements means all such agreements.
----------
Officer's Certificate: Means a certificate signed, (a) in the case of
---------------------
any corporation, by the President, any Vice President or the Treasurer, or
(b) in the case of an Owner Trustee or a Loan Trustee, a Responsible
Officer of such Owner Trustee or such Loan Trustee, as the case may be.
Opinion of Counsel: Means a written opinion of legal counsel who (a)
------------------
in the case of counsel for the Guarantor or a Company may be (i) an
attorney who may be employed by the Guarantor or such Company, (ii) the
Guarantor's Legal Department or (iii) such other counsel designated by the
Guarantor or such Company and (b) in the case of any Owner Trustee or any
Loan Trustee may be such counsel as may be designated by any of them,
whether or not such counsel is an employee of any of them, and who shall be
reasonably acceptable to the Trustee.
Outstanding: With respect to Certificates of any series, means, as of
-----------
the date of determination, all Certificates of such series theretofore
authenticated and delivered under this Agreement, except:
(i) Certificates of such series theretofore cancelled by the
Registrar or delivered to the Trustee or the Registrar for
cancellation;
(ii) All of the Certificates of such series if money in the full
amount required to make the final distribution with respect to such
series pursuant to Section 11.1 hereof has been theretofore deposited
with the Trustee in trust for the Holders of the Certificates of such
series as provided in Section 4.1 pending distribution of such money
to such Certificateholders pursuant to such final distribution
payment; and
(iii) Certificates of such series in exchange for or in lieu of
which other Certificates of such series have been authenticated and
delivered pursuant to this Agreement.
6
Owner Participant: With respect to any Secured Note, means the "Owner
-----------------
Participant", if any, as referred to in the Indenture pursuant to which
such Secured Note is issued and any permitted successor or assign of such
Owner Participant; and Owner Participants at any time of determination
------------------
means all of the Owner Participants thus referred to in the related
Indentures.
Owner Trustee: With respect to any Secured Note, means the "Owner
-------------
Trustee", if any, as referred to in the Indenture pursuant to which such
Secured Note is issued, not in its individual capacity but solely as
trustee; and Owner Trustees means all of the Owner Trustees party to any of
--------------
the respective Indentures.
Owner Trustee's Purchase Agreement: With respect to any Secured Note,
----------------------------------
if the related Property is leased to a Company, means the "Participation
Agreement" as defined in the related Lease.
Paying Agent: With respect to the Certificates of any series, means
------------
the paying agent maintained and appointed for the Certificates of such
series pursuant to Section 7.11.
Permitted Investments: Means obligations of the United States of
---------------------
America or agencies or instrumentalities thereof for the payment of which
the full faith and credit of the United States of America is pledged,
maturing in not more than 60 days from the date of purchase thereof or such
lesser time as is necessary for payment of any Special Payments on a
Special Distribution Date.
Person: Means any person, including any individual, corporation,
------
partnership, limited partnership, limited liability company, joint venture,
association, joint stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof.
Pool Balance: With respect to any Trust, means as of any date the
------------
aggregate unpaid principal amount of the Secured Notes held in such Trust
on such date plus the amount of the principal payments on such Secured
Notes held by the Trustee and not yet distributed plus the amount of any
moneys held in the related Escrow Account (other than earnings thereon).
The Pool Balance as of any Regular Distribution Date or Special
Distribution Date with respect to such Trust shall be computed after giving
effect to the payment of principal, if any, on such Secured Notes and
distribution thereof to be made on that date.
Pool Factor: With respect to any Trust, means as of any date the
-----------
quotient (rounded to the seventh decimal place, with .00000005 being
rounded upwards) computed by dividing (i) the Pool Balance by (ii) the
aggregate original principal amount of the Certificates issued by such
Trust. The Pool Factor as of any Regular Distribution Date or Special
Distribution Date with respect to such Trust shall be computed after giving
7
effect to the payment of principal, if any, on the Secured Notes held in
such Trust and distribution thereof to be made on that date.
Postponed Notes: With respect to any Trust or the related series of
---------------
Certificates, means the Secured Notes to be held in such Trust as to which
a Postponement Notice shall have been delivered pursuant to Section 2.2(b).
Postponement Notice: With respect to any Trust or the related series
-------------------
of Certificates, means an Officer's Certificate of the Applicable Company
(1) requesting that the Trustee temporarily postpone purchase of the
related Secured Notes to be held in such Trust to a date later than the
Issuance Date of such series of Certificates, (2) identifying the amount of
the purchase price of each such Secured Note and the aggregate purchase
price for all such Secured Notes, (3) setting forth the reasons for such
postponement and (4) with respect to each such Secured Note, either (a)
setting or resetting a new Transfer Date (which shall be on or prior to the
applicable Cut-off Date) for payment by the Trustee of such purchase price
and issuance of the related Secured Notes, or (b) indicating that such new
Transfer Date (which shall be on or prior to the applicable Cut-off Date)
will be set by subsequent written notice not less than one Business Day
prior to such new Transfer Date.
Property: With respect to any Trust or the related series of
--------
Certificates, means the "Property" as defined in the related Trust
Supplement.
Record Date: With respect to any Trust or the related series of
-----------
Certificates, means (i) for Scheduled Payments to be distributed on any
Regular Distribution Date, other than the final distribution, with respect
to such series, the 15th day (whether or not a Business Day) preceding such
Regular Distribution Date, and (ii) for Special Payments to be distributed
on any Special Distribution Date, other than the final distribution, with
respect to such series, the 15th day (whether or not a Business Day)
preceding such Special Distribution Date.
Register and Registrar: With respect to the Certificates of any
----------------------
series, mean the register maintained and the registrar appointed for such
series pursuant to Sections 3.4 and 7.11.
Regular Distribution Date: With respect to distributions of Scheduled
-------------------------
Payments in respect of any series of Certificates, means each date
designated as such in this Agreement, until payment of all the Scheduled
Payments to be made under the Secured Notes held in the related Trust has
been made or until such Secured Notes have been prepaid in full.
Request: Means a request by the Applicable Company or the Guarantor
-------
setting forth the subject matter of the request accompanied by an Officer's
Certificate and an
8
Opinion of Counsel of the Applicable Company or the Guarantor, as provided
in Section 1.2.
Responsible Officer: With respect to any Trustee, any Loan Trustee
-------------------
and any Owner Trustee, means any officer in the Corporate Trust
Administration Department or similar department of the Trustee, Loan
Trustee or Owner Trustee or any other person customarily performing
functions similar to those performed by the persons who at the time shall
be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with a
particular subject.
Scheduled Payment: With respect to any Secured Note held in a Trust,
-----------------
means any payment (other than a Special Payment) of principal of and/or
interest on such Secured Note due from the obligor thereon, which
installment represents the installment of principal at the stated maturity
of such installment of principal on such Secured Note or the payment of
regularly scheduled interest accrued on the unpaid principal amount of such
Secured Note, or both.
SEC: Means the Securities and Exchange Commission, as from time to
---
time constituted or created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on such
date.
Secured Note: With respect to the Certificates of any series, means
------------
each note, certificate or other instrument issued pursuant to any Indenture
relating to such Certificates.
Special Distribution Date: With respect to the Certificates of any
-------------------------
series, means each date on which a Special Payment is to be distributed as
specified in this Agreement.
Special Payment: With respect to a Special Distribution Date in
---------------
respect of the Certificates of any series, means (i) any payment of
principal of, premium, if any, and interest resulting from the redemption
or purchase of a Secured Note held in the applicable Trust, (ii) any
payment of principal of and interest (including any interest accruing upon
default) on, or any other amount in respect of, any such Secured Note upon
an Indenture Event of Default in respect thereof or upon an acceleration
under the Indenture relating thereto, (iii) the amounts required to be
distributed in respect thereof pursuant to the antepenultimate paragraph of
Section 2.2(b), (iv) the amounts required to be distributed in respect
thereof pursuant to the penultimate paragraph of Section 2.2(b), (v) any
Scheduled Payment that is not in fact paid within five days of the Regular
Distribution Date applicable thereto or (vi) any proceeds from the sale of
any such Secured Note by the Trustee pursuant to Article VI hereof; and
Special Payments means all of such Special Payments.
----------------
9
Special Payments Account: With respect to the Certificates of any
------------------------
series, means the account or accounts created and maintained for such
series pursuant to Section 4.1(b) and the related Trust Supplement.
Specified Investments: With respect to any Trust, means, unless
---------------------
otherwise specified in the related Trust Supplement, (i) obligations of the
United States Government or agencies thereof, or guaranteed by the United
States Government, (ii) open market commercial paper of any corporation
incorporated under the laws of the United States of America or any State
thereof rated at least P-2 or its equivalent by Xxxxx'x Investors Service,
Inc. or at least A-2 or its equivalent by Standard & Poor's Ratings
Services, (iii) certificates of deposit issued by commercial banks
organized under the laws of the United States or of any political
subdivision thereof having a combined capital and surplus in excess of
$500,000,000, which banks or their holding companies have a rating of A or
its equivalent by Xxxxx'x Investors Service, Inc. or A2 or its equivalent
by Standard & Poor's Ratings Services (including the Trustee if such
conditions are met); provided, however, that the aggregate amount at
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any one time so invested in certificates of deposit issued by any one
bank shall not exceed 5% of such bank's capital and surplus, (iv) U.S.
dollar denominated offshore certificates of deposit issued by, or offshore
time deposits with, any commercial bank described in (iii) or any
subsidiary thereof and (v) repurchase agreements with any financial
institution having combined capital and surplus of at least $500,000,000
(including the Trustee if such conditions are met) with any of the
obligations described in clauses (i) through (iv) as collateral; provided
--------
further that if all of the above investments are unavailable, the entire
-------
amounts to be invested may be used to purchase Federal Funds from an entity
described in clause (iii) above; and provided further that no investment
-------- -------
shall be eligible as a "Specified Investment" unless the final maturity or
date of return of such investment is on or before the Special Distribution
Date next following the Cut-off Date for such Trust by more than 20 days.
Transfer Date: Has the meaning assigned to that term or any of the
-------------
terms "Delivery Date", "Funding Date" or "Closing Date" in a Note Purchase
Agreement.
Trust: With respect to the Certificates of any series, means the
-----
related trust created by a Trust Supplement.
Trust Indenture Act: Except as otherwise provided in Section 9.6,
-------------------
means the Trust Indenture Act of 1939, as amended.
Trust Property: With respect to any Trust, means the Secured Notes
--------------
held as the property of such Trust and all monies at any time paid thereon
and all monies due and to become due thereunder, debt instruments issued by
the Guarantor or by an Applicable Company (and guaranteed by the Guarantor)
in accordance with the first paragraph of Section 2.2(b), funds from time
to time deposited in the related Escrow Account, the
10
related Certificate Account and the related Special Payments Account and
any proceeds from the sale by the Trustee pursuant to Article VI hereof of
any such Secured Note.
Trust Supplement: Means an agreement supplemental hereto pursuant to
----------------
which (i) a separate Trust is created for the benefit of the Holders of the
Certificates of a series, (ii) the issuance of the Certificates of such
series representing fractional undivided interests in such Trust is
authorized and (iii) the terms of the Certificates of such series are
established, as such agreement may from time to time be supplemented,
amended or modified.
Trustee: In respect of each Trust, means each of the institution or
-------
institutions executing this Basic Agreement and the applicable Trust
Supplement as Trustee, or its successor in interest, and any successor
trustee appointed as provided herein.
Section 1.2. Compliance Certificates and Opinions. Upon any
------------------------------------
application or request by any Company, the Guarantor, any Owner Trustee or any
Loan Trustee to the Trustee to take any action under any provision of this Basic
Agreement or, in respect of the Certificates of any series, this Agreement, such
Company, the Guarantor, such Owner Trustee or such Loan Trustee, as the case may
be, shall furnish to the Trustee an Officer's Certificate stating that, in the
opinion of the signers, all conditions precedent (including any covenants
compliance with which constitutes a condition precedent), if any, provided for
in this Basic Agreement or, in respect of any Series, this Agreement relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent (including any
covenants compliance with which constitutes a condition precedent), if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Basic Agreement or, in respect of any Series, this Agreement
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Basic Agreement or, in respect of the
Certificates of any series, this Agreement (other than a certificate provided
pursuant to Section 8.4(d)) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions in this
Basic Agreement or this Agreement relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
11
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In any case
--------------------------------------
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any Opinion of Counsel stated to be based on the opinion of other
counsel shall be accompanied by a copy of such other opinion. Any certificate
or opinion of an officer of the Guarantor or any Company may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Guarantor or Applicable
Company stating that the information with respect to such factual matters is in
the possession of such Company unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Basic Agreement or, in respect of the Certificates of any
series, this Agreement, they may, but need not, be consolidated and form one
instrument.
Section 1.4. Acts of Certificateholders. (a) Any direction,
--------------------------
consent, waiver or other action provided by this Agreement in respect of the
Certificates of any series to be given or taken by Certificateholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Certificateholders in person or by an agent or proxy duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required pursuant to this
Agreement, to the Applicable Company or any Loan Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Certificateholders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee, the Guarantor, the Applicable
Company and the related Loan Trustee, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any
12
jurisdiction authorized to take acknowledgments of deeds or administer oaths
that the Person executing such instrument acknowledged to him the execution
thereof, or by an affidavit of a witness to such execution sworn to before any
such notary or such other officer and where such execution is by an officer of a
corporation or association or a member of a partnership, on behalf of such
corporation, association or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other reasonable manner which the
Trustee deems sufficient.
(c) In determining whether the Certificateholders of the requisite
Fractional Undivided Interests of Certificates of any series Outstanding have
given any direction, consent or waiver (a "Direction"), under this Agreement,
Certificates owned by the Guarantor, any Company, any related Owner Trustee,
any related Owner Participant or any Affiliate of any such Person shall be
disregarded and deemed not to be Outstanding for purposes of any such
determination. In determining whether the Trustee shall be protected in relying
upon any such Direction, only Certificates that the Trustee knows to be so owned
shall be so disregarded. Notwithstanding the foregoing, (i) if any such Person
owns 100% of the Certificates of any series Outstanding, such Certificates shall
not be so disregarded as aforesaid, and (ii) if any amount of Certificates of
such series so owned by any such Person have been pledged in good faith, such
Certificates shall not be disregarded as aforesaid if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right so to act with respect to
such Certificates and that the pledgee is not the Guarantor, or a Company, any
related Owner Trustee, any related Owner Participant or any Affiliate of any
such Person.
(d) The Applicable Company may at its option by delivery of an
Officer's Certificate to the Trustee set a record date to determine the
Certificateholders in respect of the Certificates of any series entitled to give
any consent, request, demand, authorization, direction, notice, waiver or other
action. Notwithstanding Section 316(c) of the Trust Indenture Act, such record
date shall be the record date specified in such Officer's Certificate, which
shall be a date not more than 15 days prior to the first solicitation of
Certificateholders in connection therewith. If such a record date is fixed,
such consent, request, demand, authorization, direction, notice, waiver or other
action may be given before or after such record date, but only the
Certificateholders of record of the applicable series at the close of business
on such record date shall be deemed to be Certificateholders for the purposes of
determining whether Certificateholders of the requisite proportion of
Outstanding Certificates of such series have authorized or agreed or consented
to such consent, request, demand, authorization, direction, notice, waiver or
other action, and for that purpose the Outstanding Certificates of such series
shall be computed as of such record date; provided that no such consent,
--------
request, demand, authorization, direction, notice, waiver or other action by the
Certificateholders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Agreement not later than one
year after the record date.
(e) Any request, demand, authorization, notice, direction, consent,
waiver or other action by the Certificateholder of any Certificate shall bind
the Certificateholder of every
13
Certificate issued upon the transfer thereof or in exchange therefor or in lieu
thereof, whether or not notation of such action is made upon such Certificate.
(f) Except as otherwise provided in Section 1.4(c), Certificates of
any series owned by or pledged to any Person shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority, or distinction as among all of the Certificates of such
series.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF SECURED NOTES
Section 2.1. Amount Unlimited, Issuable in Series. (a) The
------------------------------------
aggregate principal amount of Certificates that may be authenticated and
delivered under this Basic Agreement is unlimited. The Certificates may be
issued from time to time in one or more series and shall be designated generally
as the "Pass Through Certificates", with such further designations added or
incorporated in such title for the Certificates of each series as specified in
the related Trust Supplement. Each Certificate shall bear upon its face the
designation so selected for the series to which it belongs. All Certificates of
the same series shall be substantially identical except that the Certificates of
a series may differ as to denomination and as may otherwise be provided in the
Trust Supplement establishing the Certificates of such series. Each series of
Certificates issued pursuant to this Agreement will evidence Fractional
Undivided Interests in the related Trust and will have no rights, benefits or
interests in respect of any other Trust or the Trust Property held therein. All
Certificates of the same series shall be in all respects equally and ratably
entitled to the benefits of this Agreement 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 Agreement.
(b) The following matters shall be established with respect to the
Certificates of each series issued hereunder by a Trust Supplement executed and
delivered by and among the Guarantor, the Applicable Company and the Trustee:
(1) the formation of the Trust as to which the Certificates of such
series represent Fractional Undivided Interests and its designation (which
designation shall distinguish such Trust from each other Trust created
under this Basic Agreement and a Trust Supplement);
(2) the specific designation and title of the Certificates of such
series (which title shall distinguish the Certificates of such series from
each other series of Certificates created under this Basic Agreement and a
Trust Supplement);
14
(3) any limit upon the aggregate principal amount of the Certificates
of such series that may be authenticated and delivered (which limit shall
not pertain to Certificates authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Certificates of
the series pursuant to Sections 3.3, 3.4 and 3.5);
(4) the Cut-off Date with respect to the Certificates of such series
and the related Trust;
(5) the Regular Distribution Dates applicable to the Certificates of
such series and the related Trust;
(6) the Special Distribution Dates applicable to the Certificates of
such series and the related Trust;
(7) if other than as provided in Section 3.4 or 7.11(b), the
Registrar or the Paying Agent for the Certificates of such series,
including any Co-Registrar or additional Paying Agent;
(8) if other than as provided in Section 3.1, the denominations in
which the Certificates of such series shall be issuable and, if other than
United States dollars, the currency or currencies (including currency
units) thereof;
(9) the specific form of the Certificates of such series (including
the interest rate applicable thereto) and whether or not Certificates of
such series are to be issued as Book-Entry Certificates and, if such
Certificates are to be Book-Entry Certificates, the form of Letter of
Representations, if any;
(10) a description of the related Secured Notes to be acquired and
held in the related Trust and of the related Property and the related Note
Documents, including whether or not such Secured Notes are senior or
subordinate to any other Secured Notes and if so, the terms and conditions
pursuant to which such Secured Notes are senior to or subordinate to other
Secured Notes or other debt secured by the Property;
(11) provisions with respect to the terms for which the definitions
set forth in Article I hereof or the terms of Section 9.1 hereof permit or
require further specification in the related Trust Supplement;
(12) any restrictions (including legends) in respect of ERISA;
(13) whether such series will be subject to any intercreditor
agreement, liquidity or credit facility or other agreement or instrument;
(14) any other terms of the Certificates of such series (which terms
shall not be inconsistent with the provisions of the Trust Indenture Act),
including any terms that
15
may be required or advisable under United States laws or regulations or
advisable in connection with the marketing of Certificates of such series;
(15) the extent, if any, to which the Guarantor or the Applicable
Company may acquire Certificates and deliver such Certificates or cash to
the respective Trusts and obtain the release of Secured Notes held by such
Trusts; and
(16) whether the Certificates are issuable as bearer instead of
registered Certificates or both, and the terms upon which bearer
Certificates may be exchanged for registered Certificates.
(c) At any time and from time to time after the execution and delivery
of this Basic Agreement and a Trust Supplement forming a Trust and establishing
the terms of Certificates of a series, Certificates of such series shall be
executed, authenticated and delivered by the Trustee to the Person or Persons
specified by the Applicable Company upon request of the Applicable Company and
upon satisfaction of any conditions precedent set forth in such Trust Supplement
or in any other document to which a Trustee is a party relating to the issuance
of the Certificates of such series.
Section 2.2. Acquisition of Secured Notes. (a) Unless otherwise
----------------------------
specified in the related Trust Supplement, on or prior to the Issuance Date of
the Certificates of a series, the Trustee shall execute and deliver the related
Note Purchase Agreements in the forms delivered to the Trustee by the Applicable
Company. The Trustee shall issue and sell such Certificates, in authorized
denominations and in such Fractional Undivided Interests, so as to result in the
receipt of consideration in an amount equal to the aggregate purchase price of
Secured Notes to be held in the applicable Trust as specified in the related
Note Purchase Agreements and, concurrently therewith, the Trustee shall
purchase, pursuant to the terms and conditions of such Note Purchase Agreements,
the Secured Notes (except Postponed Notes, if any) at a purchase price equal to
the amount of such consideration so received. Except as provided in Sections
3.3, 3.4 and 3.5 hereof, the Trustee shall not execute, authenticate or deliver
Certificates of such series in excess of the aggregate amount specified in this
paragraph. The provisions of this Subsection (a) are subject to the provisions
of Subsection (b) below.
(b) If on or prior to the Issuance Date with respect to a series of
Certificates the Applicable Company shall deliver to the Trustee a Postponement
Notice relating to one or more Postponed Notes, the Trustee shall postpone the
purchase of such Postponed Notes and shall deposit into an escrow account (as to
such Trust, the "Escrow Account") to be maintained as a part of the related
Trust an amount equal to the purchase price of such Postponed Notes (the
"Escrowed Funds"). The Escrowed Funds so deposited shall be (i) invested by the
Trustee at the direction and risk of the Applicable Company in Specified
Investments or (ii) if provided in the Trust Supplement relating to such series
of Certificates and subject to the terms and conditions set forth therein,
invested in debt instruments of the Guarantor or the Applicable Company (and
guaranteed by the Guarantor), in each case (x) maturing no later than any
scheduled Transfer Date relating to such series of Certificates, or (y) if no
such Transfer Date
16
has been scheduled, maturing on the next Business Day, or (z) if subsequent to
the giving of the applicable Postponement Notice the Applicable Company has
given notice to the Trustee that any Postponed Notes will not be issued,
thereafter with respect to the portion of the Escrowed Funds relating to such
Postponed Notes, maturing on or before the next applicable Special Distribution
Date, if such investments are reasonably available for purchase. The Trustee
shall make withdrawals from the Escrow Account only as provided in this
Agreement. Upon request of the Applicable Company on one or more occasions and
the satisfaction of the closing conditions specified in the applicable Note
Purchase Agreements on or prior to the related Cut-off Date, the Trustee shall
purchase the applicable Postponed Notes with the Escrowed Funds withdrawn from
the Escrow Account.
The Trustee shall hold all Specified Investments until the maturity
thereof and will not sell or otherwise transfer Specified Investments. If
Specified Investments held in an Escrow Account mature prior to any applicable
Transfer Date, any proceeds received on the maturity of such Specified
Investments (other than any earnings thereon) shall be reinvested by the Trustee
at the direction and risk of, and for the benefit of, the Applicable Company in
Specified Investments maturing as provided in the preceding paragraph.
Any earnings on Specified Investments received from time to time by
the Trustee shall be distributed to the Applicable Company periodically upon its
demand, or if not so distributed, reinvested by the Trustee in Specified
Investments maturing as provided in the applicable Trust Supplement or in the
second preceding paragraph. The Applicable Company shall pay to the Trustee for
deposit to the relevant Escrow Account an amount equal to any losses incurred on
such Specified Investments made at the direction and risk of such Applicable
Company. On the Initial Regular Distribution Date in respect of the
Certificates of any series, the Applicable Company will pay (in immediately
available funds) to the Trustee an amount equal to the interest that would have
accrued on these Postponed Notes related to such Applicable Company, if any,
purchased after the Issuance Date as if such Postponed Notes had been purchased
on the Issuance Date, from the Issuance Date to, but not including, the date of
the purchase of such Postponed Notes by the Trustee, but only to the extent such
accrued interest would be payable on the next succeeding payment date, unless
otherwise specified in the related Trust Supplement.
If, in respect of the Certificates of any series, the Applicable
Company notifies the Trustee prior to the applicable Cut-off Date that any
Postponed Notes will not be issued on or prior to such Cut-off Date for any
reason, on the next Special Distribution Date for such Certificates occurring
more than 20 days following the date of such notice, unless otherwise specified
in the related Trust Supplement, (i) the Applicable Company shall pay to the
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
Postponed Notes related to such Applicable Company designated in such notice at
a rate equal to the interest rate applicable to such Certificates from the
Issuance Date to, but not including, such Special Distribution Date and (ii) the
Trustee shall transfer an amount equal to the sum of that amount of Escrowed
Funds that would have been used to purchase the Postponed Notes designated in
such notice plus the
17
amount paid by such Applicable Company pursuant to the immediately preceding
clause (i) to the related Special Payments Account for distribution as a Special
Payment in accordance with the provisions hereof.
If, on such Cut-off Date, an amount equal to less than all of the
Escrowed Funds (other than Escrowed Funds referred to in the immediately
preceding paragraph) has been used to purchase Postponed Notes, on the next such
Special Distribution Date occurring more than 20 days following such Cut-off
Date, unless otherwise specified in the related Trust Supplement, (i) the
Applicable Company shall pay to the Trustee for deposit in such Special Payments
Account, in immediately available funds, an amount equal to the interest that
would have accrued on such Postponed Notes related to such Applicable Company
contemplated to be purchased with such unused Escrowed Funds (other than
Escrowed Funds referred to in the immediately preceding paragraph) but not so
purchased at a rate equal to the interest rate applicable to such Certificates
from the Issuance Date to, but not including, such Special Distribution Date and
(ii) the Trustee shall transfer the sum of such unused Escrowed Funds plus the
amount paid by such Applicable Company pursuant to the immediately preceding
clause (i) to such Special Payments Account for distribution as a Special
Payment in accordance with the provisions hereof.
If the Applicable Company shall fail to make any payment due under
this Section 2.2, the Guarantor agrees to make such payment in its place.
Section 2.3. Acceptance by Trustee. The Trustee, upon the execution
---------------------
and delivery of a Trust Supplement creating a Trust and establishing a series of
Certificates, shall acknowledge its acceptance of all right, title, and interest
in and to the Secured Notes to be acquired pursuant to Section 2.2 hereof and
the Note Purchase Agreements and shall declare that the Trustee holds and will
hold such right, title, and interest, together with all other property
constituting the Trust Property of such Trust, for the benefit of all then
present and future Certificateholders of such series, upon the trusts herein and
in such Trust Supplement set forth. By its payment for and acceptance of each
Certificate of such series issued to it under this Agreement, each initial
Certificateholder of such series as grantor of such Trust shall thereby join in
the creation and declaration of such Trust.
Section 2.4. Limitation of Powers. Each Trust shall be constituted
--------------------
solely for the purpose of making the investment in the Secured Notes provided
for in the related Trust Supplement, and, except as set forth in Section 2.2(b)
or otherwise in this Agreement, the Trustee shall not be authorized or empowered
to acquire any other investments or engage in any other activities and, in
particular, the Trustee shall not be authorized or empowered to do anything that
would cause such Trust to fail to qualify as a "grantor trust" for federal
income tax purposes (including as subject to this restriction, acquiring any
Property by bidding such Secured Notes or otherwise, or taking any action with
respect to any such Property once acquired).
18
ARTICLE III
THE CERTIFICATES
Section 3.1. Form, Denomination and Execution of Certificates. The
------------------------------------------------
Certificates of each series shall be issued in registered form (except as
otherwise specified in the relevant Trust Supplement) without coupons and shall
be substantially in the form attached hereto as Exhibit A, with such omissions,
variations and insertions as are permitted by this Agreement, and may have such
letters, numbers or other marks of identification and such legends or
endorsements typed, printed, lithographed or engraved thereon, as may be
required to comply with the rules of any securities exchange on which such
Certificates may be listed or to conform to any usage in respect thereof, or as
may, consistently herewith, be prescribed by the Trustee or by the officer
executing such Certificates, such determination by said officer to be evidenced
by his signing the Certificates.
Except as provided in Section 3.9, the definitive Certificates of such
series shall be typed, printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner permitted by
the rules of any securities exchange on which such Certificates may be listed,
all as determined by the officer executing such Certificates, as evidenced by
his execution of such Certificates.
Except as otherwise provided in the related Trust Supplement, the
Certificates of each series shall be issued in minimum denominations of $1,000
or integral multiples thereof, except that one Certificate of such series may be
issued in a denomination of less than $1,000.
The Certificates of each series shall be executed on behalf of the
Trustee by manual or facsimile signature of a Responsible Officer of the
Trustee. Certificates of any series bearing the manual or facsimile signature
of an individual who was, at the time when such signature was affixed,
authorized to sign on behalf of the Trustee shall be valid and binding
obligations of the Trustee, notwithstanding that such individual has ceased to
be so authorized prior to the authentication and delivery of such Certificates
or did not hold such office at the date of such Certificates. No Certificate of
any series shall be entitled to any benefit under this Agreement, or be valid
for any purpose unless there appears on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A hereto executed
by or on behalf of the Trustee by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates of any series shall be dated on the date of their
authentication.
Section 3.2. Authentication of Certificates. The Trustee shall duly
------------------------------
authenticate and deliver Certificates of each series in authorized denominations
equalling in the aggregate the aggregate principal amount of the Secured Notes
to be purchased by the Trustee pursuant to the related Note Purchase Agreements,
and evidencing the entire ownership of the related Trust.
19
Section 3.3. Temporary Certificates. Pending the preparation of
----------------------
definitive Certificates of any series, the Trustee may execute, authenticate and
deliver temporary Certificates of such series that are printed, lithographed,
typewritten or otherwise produced, in any denomination, containing substantially
the same terms and provisions as set forth in Exhibit A hereto, except for such
appropriate insertions, omissions, substitutions and other variations relating
to their temporary nature as the officer executing such temporary Certificates
may determine, as evidenced by such officer's execution of such temporary
Certificates.
If temporary Certificates of any series are issued, the Trustee will
cause definitive Certificates of such series to be prepared without unreasonable
delay. After the preparation of definitive Certificates of such series, the
temporary Certificates shall be exchangeable for definitive Certificates upon
surrender of such temporary Certificates at the Corporate Trust Office of the
Trustee, or at the office or agency of the Trustee maintained in accordance with
Section 7.11, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Certificates, the Trustee shall execute, authenticate
and deliver in exchange therefor definitive Certificates of like series, in
authorized denominations and of a like aggregate Fractional Undivided Interest.
Until so exchanged, such temporary Certificates shall in all respects be
entitled to the same benefits under this Agreement as definitive Certificates.
Section 3.4. Registration of Transfer and Exchange of Certificates.
-----------------------------------------------------
The Trustee shall cause to be kept at the office or agency to be maintained by
it in accordance with the provisions of Section 7.11 a register (the "Register")
for each series of Certificates in which, subject to such reasonable regulations
as it may prescribe, the Trustee shall provide for the registration of
Certificates of such series and of transfers and exchanges of such Certificates
as herein provided. The Trustee shall initially be the registrar (the
"Registrar") for the purpose of registering Certificates of each series and
transfers and exchanges of such Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office or such other office or agency, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of like series, in authorized
denominations of a like aggregate Fractional Undivided Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of like series, in authorized denominations and of a like
aggregate Fractional Undivided Interest, upon surrender of the Certificates to
be exchanged at the Corporate Trust Office or at any such office or agency.
Whenever any Certificates are so surrendered for exchange, the Trustee shall
execute, authenticate and deliver the Certificates that the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Registrar duly executed by the Certificateholder thereof or its
attorney duly authorized in writing.
20
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Trustee shall
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee.
Section 3.5. Mutilated, Destroyed, Lost or Stolen Certificates. If
-------------------------------------------------
(a) any mutilated Certificate is surrendered to the Registrar, or the Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (b) there is delivered to the Registrar and the Trustee such
security, indemnity or bond as may be required by them to save each of them
harmless, then, in the absence of notice to the Registrar or the Trustee that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate or
Certificates of like series, in authorized denominations and of like Fractional
Undivided Interest. In connection with the issuance of any new Certificate
under this Section 3.5, the Trustee shall require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Registrar) connected therewith. Any duplicate Certificate
issued pursuant to this Section 3.5 shall constitute conclusive evidence of the
appropriate Fractional Undivided Interest in the related Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
Section 3.6. Persons Deemed Owners. Prior to due presentation of a
---------------------
Certificate for registration of transfer, the Guarantor, the Applicable Company,
the Trustee, the Registrar, and any Paying Agent of the Trustee may treat the
Person in whose name any Certificate is registered on the Register as the owner
of such Certificate for the purpose of receiving distributions pursuant to
Section 4.2 and for all other purposes whatsoever, and neither the Guarantor,
the Applicable Company, the Trustee, the Registrar, nor any Paying Agent of the
Trustee shall be affected by any notice to the contrary.
Section 3.7. Cancellation. All Certificates surrendered for payment
------------
or registration of transfer or exchange shall, if surrendered to any Person
party hereto or any agent of the Trustee other than the Registrar, be delivered
to the Registrar for cancellation. No Certificates shall be authenticated in
lieu of or in exchange for any Certificates cancelled as provided in this
Section, except as expressly permitted by this Agreement. All cancelled
Certificates held by the Registrar shall be destroyed and a certification of
their destruction delivered to the Trustee.
Section 3.8. Limitation of Liability. All payments or distributions
-----------------------
made to Certificateholders of any series under this Basic Agreement and the
related Trust Supplement shall be made only from the Trust Property of the
related Trust and only to the extent that the Trustee shall have sufficient
income or proceeds from such Trust Property to make such
21
payments in accordance with the terms of Article IV of this Agreement. Each
Certificateholder, by its acceptance of a Certificate, agrees that it will look
solely to the income and proceeds from the Trust Property of the related Trust
to the extent available for distribution to such Certificateholder as provided
in this Agreement.
Nothing in this Agreement shall be construed as an agreement, or
otherwise creating an obligation, of the Guarantor or any Applicable Company to
pay any of the principal, premium, if any, and interest due from time to time
under the Secured Notes or in respect of the Certificates. The Guarantor and
each Company are parties to this 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).
Section 3.9. Book-Entry and Definitive Certificates. (a) Except for
--------------------------------------
one Certificate of each series that may be issued in a denomination of less than
$1,000, the Certificates of any series may, at the sole option of the Applicable
Company, be issued in the form of one or more typewritten Certificates
representing the Book-Entry Certificates of such series, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the
Applicable Company. In such case, the Certificates of such series delivered to
The Depository Trust Company shall initially be registered on the Register in
the name of CEDE & Co., the nominee of the initial Clearing Agency, and no
Certificate Owner will receive a definitive certificate representing such
Certificate Owner's interest in the Certificates of such series, except as
provided above and in Subsection (d) below. As to the Certificates of any
series, except with respect to the one Certificate of such series that may be
issued in a denomination of less than $1,000, unless and until definitive, fully
registered Certificates of such series (the "Definitive Certificates") have been
issued pursuant to Subsection (d) below:
(i) the provisions of this Section 3.9 shall be in full force and
effect;
(ii) the Guarantor, the Applicable Company, the Paying Agent, the
Registrar and the Trustee may deal with the Clearing Agency for all
purposes (including the making of distributions on the Certificates) as the
authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.9 conflict
with any other provisions of this Agreement (other than the provisions of
any Trust Supplement amending this Section 3.9 as permitted by this Basic
Agreement), the provisions of this Section 3.9 shall control;
(iv) the rights of Certificate Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law and
agreements between such Certificate Owners and the Clearing Agency
Participants; and until Definitive Certificates are issued pursuant to
Subsection (d) below, the Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and transmit
22
distributions of principal and interest and premium, if any, on the
Certificates to such Clearing Agency Participants;
(v) such Certificates of such series may be transferred in whole, but
not in part, and in the manner provided in Section 3.4 by the Clearing
Agency holding such Certificates to a nominee of such Clearing Agency or by
such Clearing Agency to a successor Clearing Agency selected or approved by
the Applicable Company upon notice to the Trustee or to a nominee of such
successor Clearing Agency; and
(vi) whenever this Agreement requires or permits actions to be taken
based upon instructions or directions of Certificateholders of such series
holding Certificates of such series evidencing a specified percentage of
the Fractional Undivided Interests in the related Trust, the Clearing
Agency shall be deemed to represent such percentage only to the extent that
it has received instructions to such effect from Certificate Owners and/or
Clearing Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in Certificates of such
series and has delivered such instructions to the Trustee. The Trustee
shall have no obligation to determine whether the Clearing Agency has in
fact received any such instructions.
(b) Except with respect to the one Certificate of each series that may
be issued in a denomination of less than $1,000, whenever notice or other
communication to the Certificateholders of such series is required under this
Agreement, unless and until Definitive Certificates shall have been issued
pursuant to Subsection (d) below, the Trustee shall give all such notices and
communications specified herein to be given to Certificateholders of such series
to the Clearing Agency and/or the Clearing Agency Participants, and shall make
available additional copies as requested by such Clearing Agency Participants.
(c) Unless and until Definitive Certificates of a series are issued
pursuant to Subsection (d) below, on the Record Date prior to each applicable
Regular Distribution Date and Special Distribution Date, the Trustee will
request from the Clearing Agency a securities position listing setting forth the
names of all Clearing Agency Participants reflected on the Clearing Agency's
books as holding interests in the Certificates of such series on such Record
Date. The Trustee shall mail to each such Clearing Agency Participant the
statements described in Section 4.3 hereof and will make available additional
copies as requested by such Clearing Agency Participant for forwarding by such
Clearing Agency Participant to Certificate Owners.
(d) If with respect to the Book-Entry Certificates of any series (i)
the Applicable Company advises the Trustee in writing that the Clearing Agency
is no longer willing or able to properly discharge its responsibilities and the
Trustee or the Applicable Company is unable to locate a qualified successor or
(ii) the Applicable Company, at its option, advises the Trustee in writing of
its election to terminate the book-entry system through the Clearing Agency in
respect of the Certificates or (iii) after the occurrence of an Event of
Default, Certificate Owners of Book-Entry Certificates of such series evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in the related Trust advise the Applicable
23
Company, the Trustee and the Clearing Agency through the Clearing Agency
Participants in writing that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interests of the Certificate Owners of
such series, then the Trustee shall notify all Certificate Owners of such
series, through the Clearing Agency, of the occurrence of such event and of the
availability of Definitive Certificates. Upon surrender to the Trustee of all
the Certificates of such series held by the Clearing Agency, accompanied by
written registration instructions from the Clearing Agency for registration of
Definitive Certificates in the names of Certificate Owners of such series, the
Trustee shall execute, authenticate and deliver the Definitive Certificates of
such series pursuant to Section 3.4 in accordance with the instructions of the
Clearing Agency. Neither the Guarantor, any Company, the Registrar, the Paying
Agent nor the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such registration instructions. Upon the authentication and delivery of
Definitive Certificates of such series, the Trustee shall recognize the Persons
in whose name the Definitive Certificates are registered in the Register as
Certificateholders hereunder. None of the Applicable Company, the Guarantor and
the Trustee shall be liable if the Trustee or the Applicable Company is unable
to locate a qualified successor Clearing Agency.
(e) Except as otherwise provided in the related Trust Supplement, the
Trustee shall enter into the applicable Letter of Representations with respect
to such series of Certificates and fulfill its responsibilities thereunder.
(f) The provisions of this Section 3.9 may be made inapplicable to any
series or may be amended with respect to any series in the related Trust
Supplement.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.1. Certificate Account and Special Payments Account. (a)
------------------------------------------------
The Trustee shall establish and maintain on behalf of the Certificateholders of
each series a Certificate Account as one or more non-interest-bearing accounts.
The Trustee shall hold the Certificate Account in trust for the benefit of the
Certificateholders of such series, and shall make or permit withdrawals
therefrom only as provided in this Agreement. On each day when a Scheduled
Payment is made under an Indenture to the Trustee, the Trustee, as holder of the
Secured Notes issued under such Indenture and held in the related Trust, upon
receipt shall immediately deposit the aggregate amount of such Scheduled Payment
in the applicable Certificate Account.
(b) The Trustee shall establish and maintain on behalf of the
Certificateholders of each series a Special Payments Account as one or more
accounts, which shall be non-interest bearing except as provided in Section 4.4.
The Trustee shall hold the Special Payments Account in trust for the benefit of
the Certificateholders of such series, and shall make or permit
24
withdrawals therefrom only as provided in this Agreement. On each day when one
or more Special Payments (other than a Special Payment that represents the
proceeds of any sale pursuant to Article VI hereof by the Trustee of a Secured
Note) are made under the Indenture to the Trustee, as holder of the Secured
Notes issued under such Indenture and held in the related Trust or pursuant to
the penultimate and antepenultimate paragraphs of Section 2.2(b), the Trustee
upon receipt shall immediately deposit the aggregate amounts of such Special
Payments in such Special Payments Account. Upon the sale of Secured Notes by
the Trustee pursuant to Article VI hereof and the realization of any proceeds
thereof, the Trustee shall deposit the aggregate amount of such proceeds as a
Special Payment in the applicable Special Payments Account.
(c) The Trustee shall present to the Loan Trustee to which a Secured
Note held in a related Trust relates such Secured Note on the date of its stated
final maturity or, in the case of any Secured Note held in a related Trust that
is to be redeemed or purchased in whole pursuant to the relevant Indenture, on
the applicable redemption or purchase date under such Indenture.
Section 4.2. Distributions from Certificate Account and Special
--------------------------------------------------
Payments Account. (a) On each Regular Distribution Date with respect to a
----------------
series of Certificates or as soon thereafter as the Trustee has confirmed
receipt of the payment of the Scheduled Payments due on the Secured Notes held
in the related Trust on such date, the Trustee shall distribute out of the
applicable Certificate Account the entire amount deposited therein pursuant to
Section 4.1 (a). There shall be so distributed to each Certificateholder of
record of such series on the Record Date with respect to such Regular
Distribution Date (other than as provided in Section 11.1 concerning the final
distribution) by check mailed to such Certificateholder at the address appearing
in the Register such Certificateholder's pro rata share (based on the aggregate
Fractional Undivided Interest in the related Trust held by such
Certificateholder) of the aggregate amount in the applicable Certificate
Account.
(b) On each Special Distribution Date with respect to any Special
Payment with respect to a series of Certificates or as soon thereafter as the
Trustee has confirmed receipt of such Special Payment due on the Secured Notes
held in the related Trust or realized upon the sale of any such Secured Notes,
the Trustee shall distribute out of the applicable Special Payments Account the
entire amount deposited therein pursuant to Section 4.1(b) of such Special
Payment. There shall be so distributed to each Certificateholder of record of
such series on the Record Date with respect to such Special Distribution Date
(other than as provided in Section 11.1 concerning the final distribution) by
check mailed to such Certificateholder at the address appearing in the Register
such Certificateholder's pro rata share (based on the aggregate Fractional
Undivided Interest in the related Trust held by such Certificateholder) of the
aggregate amount in the applicable Special Payments Account on account of such
Special Payment.
(c) The Trustee shall, at the expense of the Applicable Company, cause
notice of each Special Payment with respect to a series of Certificates to be
mailed to each Certificateholder of such series at its address as it appears in
the Register. In the event of redemption or purchase of Secured Notes held in
the related Trust, such notice shall be mailed
25
not less than 20 days prior to the date any such Special Payment is scheduled to
be distributed. In the case of any other Special Payments, such notice shall be
mailed as soon as practicable after the Trustee has confirmed that it has
received funds for such Special Payment. Notices mailed by the Trustee shall
set forth:
(i) the Special Distribution Date and the Record Date therefor (except
as otherwise provided in Section 11.1),
(ii) the amount of the Special Payment for each $1,000 face amount
Certificate (taking into account any payment to be made by the Applicable
Company pursuant to Section 2.2(b)) and the amount thereof constituting
principal, premium, if any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a Regular
Distribution Date for the Certificates of such series, the total amount to
be received on such date for each $1,000 face amount Certificate.
If the amount of premium, if any, payable upon the redemption or purchase of a
Secured Note has not been calculated at the time that the Trustee mails notice
of a Special Payment, it shall be sufficient if the notice sets forth the other
amounts to be distributed and states that any premium received will also be
distributed.
If any redemption or purchase of the Secured Notes held in any Trust
is cancelled, the Trustee, as soon as possible after learning thereof, shall
cause notice thereof to be mailed to each Certificateholder of the related
series at its address as it appears on the Register.
Section 4.3. Statements to Certificateholders. (a) On each Regular
--------------------------------
Distribution Date and Special Distribution Date with respect to a series of
Certificateholders, the Trustee will include with each distribution to
Certificateholders of record of the related series on the Record Date with
respect to such Regular Distribution Date or Special Distribution Date 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 (per $1,000 face amount Certificate as to (i)
and (ii) below):
(i) The amount of such distribution allocable to principal and the
amount allocable to premium, if any;
(ii) The amount of such distribution allocable to interest; and
(iii) The Pool Balance and the Pool Factor of the related Trust.
26
(b) Within a reasonable period of time after the end of each calendar
year but not later than the latest date permitted by law, the Trustee shall
furnish to each Person who at any time during such calendar year was a
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i) and (a)(ii) with respect to the related
Trust for such calendar year or, in the event such Person was a
Certificateholder of record during a portion of such calendar year, for the
applicable portion of such year, and such other items as are readily available
to the Trustee and that a Certificateholder shall reasonably request as
necessary for the purpose of such Certificateholder's preparation of its Federal
income tax returns.
Section 4.4. Investment of Special Payment Moneys. Any money
------------------------------------
received by the Trustee pursuant to Section 4.1(b) representing a Special
Payment that is not to be promptly distributed shall, to the extent practicable,
be invested (and reinvested) in at the written direction of the Applicable
Company Permitted Investments by the Trustee pending distribution of such
Special Payment pursuant to Section 4.2. Any investment (including any
reinvestment) made pursuant to this Section 4.4 shall be in such Permitted
Investments having maturities not later than the date that such moneys are
required to be used to make the payment required under Section 4.2 on the
applicable Special Distribution Date and the Trustee shall hold any such
Permitted Investments until maturity. The Trustee shall have no liability with
respect to any investment made pursuant to this Section 4.4, other than by
reason of the willful misconduct or negligence of the Trustee. All income and
earnings from such investments shall be distributed on such Special Distribution
Date as part of such Special Payment.
ARTICLE V
THE GUARANTOR AND THE COMPANIES
Section 5.1. Maintenance of Corporate Existence. The Guarantor and
----------------------------------
each Company, at its own cost and expense, will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises, except as otherwise
specifically permitted in Section 5.2; provided, however, that neither the
-------- -------
Guarantor nor any Company shall be required to preserve any right or franchise
if it shall determine that the preservation thereof is no longer desirable in
the conduct of its business.
Section 5.2. Consolidation, Merger, etc. Neither the Guarantor nor
--------------------------
any Company shall consolidate with or merge into any other corporation or
convey, transfer or lease substantially all of its assets as an entirety to any
Person unless:
(a) the corporation formed by such consolidation or into which the
Guarantor or such Company is merged or the Person that acquires by
conveyance, transfer or lease substantially all of the assets of the
Guarantor or such Company as an entirety shall be organized and validly
existing under the laws of the United States of America or any
27
State thereof or the District of Columbia or, in the case of the Guarantor,
any other jurisdiction;
(b) the corporation formed by such consolidation or into which the
Guarantor or such Company is merged or the Person that acquires by
conveyance, transfer or lease substantially all of the assets of the
Guarantor or such Company as an entirety shall execute and deliver to the
Trustee an agreement containing an assumption by such successor corporation
or Person of the due and punctual performance and observance of each
covenant and condition to be performed or observed by the Guarantor or such
Company under this Agreement;
(c) the Guarantor or such Company shall have delivered to the Trustee
an Officer's Certificate and an Opinion of Counsel stating that such
consolidation, merger, conveyance, transfer or lease and the assumption
agreement mentioned in clause (b) above comply with this Section 5.2.
Upon any consolidation or merger, or any conveyance, transfer or lease
of substantially all of the assets of the Guarantor or a Company as an entirety
in accordance with this Section 5.2, the successor corporation or Person formed
by such consolidation or into which the Guarantor or such 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 Guarantor or
such Company under this Agreement applicable to the Certificates of each series
with the same effect as if such successor corporation or Person had been named
as the Guarantor or such Company herein.
Section 5.3. Right of Guarantor to Act. The Guarantor shall be
-------------------------
entitled, without further confirmation by any Company, to take, give or make on
behalf of any Company any action, direction or Request under this Basic
Agreement or this Agreement that may be taken, given or made by such Company.
ARTICLE VI
DEFAULT
Section 6.1. Events of Default. If, in respect of any Trust, any
-----------------
Indenture Event of Default under any related Indenture shall occur and be
continuing, then, and in each and every case, so long as such Indenture Event of
Default shall be continuing, (a) the Trustee may vote all Secured Notes issued
under the relevant Indenture held in such Trust, and upon the direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests in such Trust aggregating not less than a majority in interest in such
Trust, the Trustee shall vote not less than a corresponding majority of such
Secured Notes, in favor of directing the Loan Trustee under such Indenture to
declare the unpaid principal amount of such Secured Notes then outstanding to
which such Indenture Event of Default relates and accrued interest thereon to be
28
due and payable under, and in accordance with the provisions of, such Indenture,
and (b) the Trustee may in accordance with the provisions of the relevant
Indenture vote such Secured Notes held in such Trust to direct the Loan Trustee
regarding the exercise of remedies provided in such Indenture.
In addition, after an Indenture Event of Default shall have occurred
and be continuing with respect to any Secured Note or Secured Notes held in a
Trust, the Trustee thereof may, subject to Section 6.4, in its discretion, and
upon the direction of the Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in such Trust shall, by such officer or agent as it may appoint, sell, convey,
transfer and deliver such Secured Note or Secured Notes, without recourse to or
warranty by the Trustee or any Certificateholder, to any Person. In any such
case, the Trustee shall sell, assign, contract to sell or otherwise dispose of
and deliver such Secured Note or Secured Notes in one or more parcels at public
or private sale or sales, in accordance with applicable law, including any
applicable securities laws, and the terms of the applicable Note Documents, at
any location or locations at the option of the 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 Trustee so decides or is required
to sell or otherwise dispose of such Secured Note pursuant to this Section, the
Trustee shall take such of the actions described above as it may reasonably deem
most effectual to complete the sale or other disposition of such Secured Note at
the best price obtainable under the circumstances. Notwithstanding the
foregoing, the Trustee shall not take any action under this Section unless, in
the reasonable judgment of the Trustee, such action shall not be adverse to the
best interests of the Certificateholders of the applicable series.
Section 6.2. Incidents of Sale of Secured Notes. Upon any sale of
----------------------------------
all or any part of the Secured Notes held in a Trust made either under the power
of sale given under this Agreement or otherwise for the enforcement of this
Agreement, the following shall be applicable:
(1) Certificateholders and Trustee May Purchase Secured Notes. Any
---------------------------------------------------------
Certificateholder, the Trustee in its individual or any other capacity or
any other Person may bid for and purchase any of such Secured Notes, and
upon compliance with the terms of sale, may hold, retain, possess and
dispose of such Secured Notes in its own absolute right without further
accountability.
(2) Receipt of Trustee Shall Discharge Purchaser. The receipt of the
--------------------------------------------
Trustee or of the officer or agent making such sale shall be a sufficient
discharge to any purchaser for his purchase money, and, after paying such
purchase money and receiving such receipt, such purchaser or its personal
representative or assigns shall not be obliged to see to the application of
such purchase money, or be in any way answerable for any loss,
misapplication or non-application thereof.
29
(3) Application of Moneys Received upon Sale. Any moneys collected by
----------------------------------------
the Trustee upon any sale made either under the power of sale given by this
Agreement or otherwise for the enforcement of this Agreement shall be
applied as provided in Section 4.2.
Section 6.3. Judicial Proceedings Instituted by Trustee, Trustee May
-------------------------------------------------------
Bring Suit. If there shall be a failure to make payment of the principal of,
----------
premium, if any, or interest on any Secured Note held in a Trust when due and
payable, then the Trustee, in its own name, and as trustee of an express trust,
as holder of such Secured Notes, shall be, to the extent permitted by and in
accordance with the terms of the applicable Note Documents, entitled and
empowered to institute any suits, actions or proceedings at law, in equity or
otherwise, for the collection of the sums so due and unpaid on such Secured
Notes and may prosecute any such claim or proceeding to judgment or final decree
with respect to the whole amount of any such sums so due and unpaid.
Section 6.4. Control by Certificateholders. Subject to Section 6.3,
-----------------------------
the Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the related Trust
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee with respect to such Trust,
or exercising any trust or power conferred on the Trustee under this Agreement,
including any right of the Trustee as holder of the related Secured Notes held
in such Trust, provided that:
--------
(1) such direction shall not be in conflict with any rule of law or
with this Agreement or the terms of the applicable Note Documents and would
not involve the Trustee in personal liability or expense,
(2) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Certificateholders of such series not taking
part in such direction,
(3) the Trustee may take any other action permitted by this Agreement
deemed proper by the Trustee that is not inconsistent with such direction,
and
(4) if an Indenture Event of Default under a related Indenture shall
have occurred and be continuing, such direction shall not obligate the
Trustee to vote more than a corresponding majority of the related Secured
Notes held by the Trust in favor of directing any action by the related
Loan Trustee with respect to such Indenture Event of Default.
Section 6.5. Waiver of Past Defaults. The Certificateholders holding
-----------------------
Certificates of a series evidencing Fractional Undivided Interests aggregating
not less than a majority in interest in the related Trust may on behalf of all
of the Certificateholders of such series waive any past default or Event of
Default hereunder or under the related Trust Supplement with
30
respect to such series and its consequences or may instruct the Trustee to waive
any past default under any related Indenture or this Agreement or the related
Trust Supplement with respect to such series and its consequences, except a
default:
(1) in the deposit of any Scheduled Payment or Special Payment under
Section 4.1 or in the distribution of any payment under Section 4.2 on the
Certificates of such series, or
(2) in the payment of the principal of (premium, if any) or interest
on the Secured Notes, or
(3) in respect of a covenant or provision hereof that under Article IX
hereof cannot be modified or amended without the consent of each
Certificateholder holding an Outstanding Certificate of such series
affected.
Upon any such waiver, such default shall cease to exist with respect
to the Certificates of such series and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose in respect of such series
and any direction given by the Trustee on behalf of the Certificateholders of
such series to the relevant Loan Trustee shall be annulled with respect thereto;
but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon. Upon any such waiver, the
Trustee shall vote the Secured Notes issued under the relevant Indenture held in
the applicable Trust to waive the corresponding Indenture Event of Default (and,
if applicable, the corresponding Lease default).
Section 6.6. Right of Certificateholders to Receive Payments Not to
------------------------------------------------------
Be Impaired. Anything in this Agreement to the contrary notwithstanding,
-----------
including without limitation Section 6.7, the right of any Certificateholder to
receive distributions of payments required pursuant to Section 4.2 on the
applicable Certificates when due, or to institute suit for the enforcement of
any such payment on or after the applicable Regular Distribution Date or Special
Distribution Date, shall not be impaired or affected without the consent of such
Certificateholder.
Section 6.7. Certificateholders May Not Bring Suit Except Under
--------------------------------------------------
Certain Conditions. A Certificateholder of any series shall not have the right
------------------
to institute any suit, action or proceeding at law or in equity or otherwise
with respect to this Agreement, for the appointment of a receiver or for the
enforcement of any other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given written notice
to the Trustee of a continuing Event of Default;
(2) the Certificateholders holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not less than 25% of
the related Trust shall
31
have requested the Trustee in writing to institute such action, suit or
proceeding and shall have offered to the Trustee indemnity as provided in
Section 7.2(e);
(3) the Trustee shall have refused or neglected to institute any such
action, suit or proceeding for 60 days after receipt of such notice,
request and offer of indemnity; and
(4) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Certificateholders holding
Certificates of such series evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the related Trust.
It is understood and intended that no one or more of the
Certificateholders of any series shall have any right in any manner whatever
hereunder or under the related Trust Supplement or under the Certificates of
such series to (i) surrender, impair, waive, affect, disturb or prejudice any
property in the Trust Property of the related Trust or the lien of any related
Indenture on any property subject thereto, or the rights of the
Certificateholders of such series or the holders of the related Secured Notes,
(ii) obtain or seek to obtain priority over or preference to any other such
Certificateholder of such series or (iii) enforce any right under this
Agreement, except in the manner herein provided and for the equal, ratable and
common benefit of all the Certificateholders of such series subject to the
provisions of this Agreement.
Section 6.8. Remedies Cumulative. Every remedy given hereunder to
-------------------
the Trustee or to any of the Certificateholders of any series shall not be
exclusive of any other remedy or remedies, and every such remedy shall be
cumulative and in addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise.
Section 6.9. Undertaking to Pay Court Costs. All parties to this
------------------------------
Agreement, and each Certificateholder by his acceptance of a Certificate, shall
be deemed to have agreed that any court may in its discretion require, in any
suit, action or proceeding for the enforcement of any right or remedy under this
Agreement, or in any suit, action or proceeding against the Trustee for any
action taken or omitted by it as Trustee hereunder, the filing by any party
litigant in such suit, action or proceeding of an undertaking to pay the costs
of such suit, action or proceeding, and that such court may, in its discretion,
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, action or proceeding, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided,
--------
however, that the provisions of this Section shall not apply to (a) any suit,
-------
action or proceeding instituted by any Certificateholder or group of
Certificateholders of any series evidencing Fractional Undivided Interests
aggregating more than 10% of the related Trust, (b) any suit, action or
proceeding instituted by any Certificateholder for the enforcement of the
distribution of payments pursuant to Section 4.2 hereof on or after the
respective due dates expressed herein or (c) any suit, action or proceeding
instituted by the Trustee.
32
ARTICLE VIII
THE TRUSTEE
Section 7.1. Notice of Defaults. As promptly as practicable after,
------------------
and in any event within 90 days after, the occurrence of any default (as such
term is defined below) hereunder, the Trustee shall transmit by mail to the
Applicable Company, the Guarantor, any related Owner Trustees, the related Loan
Trustees and the Certificateholders holding Certificates of the related series
in accordance with Section 313(c) of the Trust Indenture Act, notice of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided that, in the case of defaults not relating to the
--------
payment of money, the Trustee shall not give such notice until the earlier of
the time at which such default becomes an Event of Default and the expiration of
60 days from the occurrence of such default; provided, however, that, except in
-------- -------
the case of a default in the payment of the principal of (premium, if any) or
interest on any Secured Note, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interests of the
Certificateholders of the related series. For the purpose of this Section in
respect of any Trust, the term "default" means any event that is, or after
notice or lapse of time or both would become, an Event of Default in respect of
that Trust.
Section 7.2. Certain Rights of Trustee. Subject to the provisions of
-------------------------
Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Guarantor or a Company mentioned
herein shall be sufficiently evidenced by a Request;
(c) whenever in the administration of this Agreement the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate of the Guarantor or
Applicable Company, any related Owner Trustee, any related Owner
Participant or any related Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such
counsel or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
33
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Agreement at the request or direction of any
of the Certificateholders pursuant to this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the cost, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this
Agreement or perform any duties under this Agreement either directly or by
or through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney appointed
with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Certificateholders holding Certificates of any series evidencing
Fractional Undivided Interests aggregating not less than a majority in
interest in the related Trust relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement;
(i) the Trustee shall not be required to expend or risk its own funds
in the performance of any of its duties under this Agreement, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk is not reasonably assured to it;
(j) except during the continuance of an Event of Default, the Trustee
undertakes and shall be responsible to perform only such duties as are
specifically set forth herein and no implied covenants or obligations shall
be read into this Agreement against the Trustee.
Section 7.3. Not Responsible for Recitals or Issuance of
-------------------------------------------
Certificates. The recitals contained herein and in the Certificates of each
series, except the certificates of authentication, shall not be taken as the
statements of the Trustee, and the Trustee assumes no responsibility for their
correctness. Subject to Section 7.14, the Trustee makes no representations as
to the validity or sufficiency of this Basic Agreement or any Trust Supplement,
any Note Documents, any Note Purchase Agreement, any Secured Notes held in a
Trust or the Certificates of any series, except that the Trustee hereby
represents and warrants that this Basic Agreement or any Trust Supplement has
been, and each Trust Supplement and each Certificate of each series will be,
executed and delivered by one of its officers who is duly authorized to execute
and deliver such document on its behalf.
34
Section 7.4. May Hold Certificates. The Trustee, any Paying Agent,
---------------------
Registrar or any of their Affiliates or any other agent, in their respective
individual or any other capacity, may become the owner or pledgee of
Certificates, and subject to Sections 310(b) and 311 of the Trust Indenture Act,
may otherwise deal with the Guarantor, any Company, any Owner Trustee or any
Loan Trustee with the same rights it would have if it were not Trustee, Paying
Agent, Registrar or such other agent.
Section 7.5. Money Held in Trust. Money held by the Trustee or the
-------------------
Paying Agent in trust hereunder or under any Trust Supplement need not be
segregated from other funds, except to the extent required herein or by law and
neither the Trustee nor the Paying Agent shall have any liability for interest
upon any such moneys except as provided for herein.
Section 7.6. Compensation and Reimbursement. The Guarantor and the
------------------------------
Applicable Company agree:
(1) to pay, or cause to be paid, to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law with regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein or in any Trust
Supplement, to reimburse, or cause to be reimbursed, the Trustee upon its
request for all reasonable out-of-pocket expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Basic Agreement or any Trust Supplement (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence, willful misconduct or bad faith or as may be incurred due
to the Trustee's breach of its representations and warranties set forth in
Section 7.14;
(3) to indemnify, or cause to be indemnified, the Trustee in its
individual capacity for, and to hold it harmless against, any loss,
liability or expense (other than for or with respect to any tax) incurred
without negligence, willful misconduct or bad faith, on its part, arising
out of or in connection with the acceptance or administration of any Trust,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder, except (i) for any such loss, liability or
expense incurred by reason of the Trustee's breach of its representations
and warranties set forth in Section 7.14 or in any Trust Supplement or the
Trustee's negligence or wilful misconduct and (ii) as provided in Section
7.16. The Trustee shall notify the Guarantor and the Applicable Company
promptly of any claim for which it may seek indemnity. The Guarantor or
the Applicable Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel with the
consent of the Guarantor or the Applicable Company and the Guarantor and
the Applicable Company will pay the
35
reasonable fees and expenses of such counsel. Neither the Guarantor nor
any Company need pay for any settlement made without its consent; and
(4) to indemnify, or cause to be indemnified, the Trustee, solely in
its individual capacity, for, and to hold it harmless against, any tax
(other than for or with respect to any tax referred to in the next
paragraph, provided that no indemnification shall be available with respect
to any tax attributable to the Trustee's compensation for serving as such)
incurred without negligence, willful misconduct or bad faith, on its part,
arising out of or in connection with the acceptance or administration of
any Trust, including any costs and expenses incurred in contesting the
imposition of any such tax. The Trustee, in its individual capacity, shall
notify the Guarantor and the Applicable Company promptly of any tax for
which it may seek indemnity. The Guarantor or the Applicable Company
shall, if it so elects, defend against the imposition of such tax and the
Trustee, in its individual capacity, shall cooperate in the defense. The
Trustee, in its individual capacity, may have separate counsel with the
consent of the Guarantor or the Applicable Company, and the Guarantor or
the Applicable Company will pay the reasonable fees and expenses of such
counsel. Neither the Guarantor nor any Company need indemnify any taxes
paid, in settlement or otherwise, without its consent.
In addition, the Trustee shall be entitled to reimbursement from, and
shall have a lien prior to the Certificates of each series upon, all property
and funds held or collected by the Trustee in its capacity as Trustee with
respect to such series or the related Trust for any tax (including any taxes
based on, or measured by the income or receipts of such Trust) incurred without
negligence, bad faith or willful misconduct, on its part, arising out of or in
connection with the acceptance or administration of such Trust (other than any
tax attributable to the Trustee's compensation for serving as such), including
any costs and expenses incurred in contesting the imposition of any such tax.
If the Trustee reimburses itself from the Trust Property of such Trust for any
such tax it will within 30 days mail a brief report setting forth the
circumstances thereof to all Certificateholders of such series as their names
and addresses appear in the Register.
As security for the performance of the obligations of the Guarantor
and each Applicable Company under this Section with respect to each Trust, the
Trustee shall have a lien prior to the Certificates of the related series upon
all property and funds held or collected by the Trustee in its capacity as
Trustee with respect to such Certificates and the related Trust.
Section 7.7. Corporate Trustee Required, Eligibility. Each Trust
---------------------------------------
shall at all times have a Trustee which shall be eligible to act as a trustee
under Section 310(a) of the Trust Indenture Act and shall have a combined
capital and surplus of at least $75,000,000 (or having a combined capital and
surplus in excess of $1,000,000 and the obligations of which, whether now in
existence or hereafter incurred, are fully and unconditionally guaranteed by a
corporation organized and doing business under the laws of the United States,
any State or Territory thereof or of the District of Columbia and having a
combined capital and surplus of at least $75,000,000). If such corporation
publishes reports of conditions at least annually, pursuant to
36
law or to the requirements of Federal, State, Territorial or District of
Columbia supervising or examining authority, then for the purposes of this
Section 7.7, 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 conditions to be published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.7 to act as Trustee of any
Trust, the Trustee shall resign immediately as Trustee of such Trust in the
manner and with the effect specified in Section 7.8.
Section 7.8. Resignation and Removal, Appointment of Successor. (a)
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee of any Trust pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 7.9.
(b) The Trustee may resign at any time as trustee of any or all Trusts
by giving written notice thereof to the Guarantor, each Company, the Authorized
Agents, the related Owner Trustees, if any, and the related Loan Trustees. If
an instrument of acceptance by a successor Trustee shall not have been delivered
to the Guarantor, each Company, the related Owner Trustees, if any, the related
Loan Trustees and the Trustee within 30 days after the giving of such notice of
resignation, the Guarantor, any Company or the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time as trustee of any Trust by
Act of the Certificateholders of the related series holding Certificates of such
series evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in such Trust delivered to the Trustee and to the
Guarantor, each Company, the related Owner Trustees and the related Loan
Trustees.
(d) If at any time in respect of any Trust:
(1) the Trustee shall fail to comply with Section 310 of the Trust
Indenture Act after written request therefor by the Guarantor, any Company
or by any Certificateholder of the related series who has been a bona fide
Certificateholder for at least six months; or
(2) the Trustee shall cease to be eligible under Section 7.7 and shall
fail to resign after written request therefor by the Guarantor, any Company
or by any such Certificateholder; or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
37
then, in any such case, (i) the Guarantor or any Company may remove the Trustee
of such Trust or (ii) any Certificateholder of the related series who has been a
bona fide Certificateholder for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee of
such Trust.
(e) If a Responsible Officer of the Trustee shall obtain actual
knowledge of an Avoidable Tax (as hereinafter defined) in respect of any Trust
that has been or is likely to be asserted, the Trustee shall promptly notify the
Guarantor and the Applicable Company and any related Owner Trustees and shall,
within 30 days of such notification, resign as Trustee of such Trust unless
within such 30-day period the Trustee shall have received notice that the
Guarantor or Applicable Company in its sole discretion has agreed to pay such
tax. Provided that there is a corporation in a jurisdiction where there are no
Avoidable Taxes that is willing to act as Trustee and is eligible under Section
7.7, the Applicable Company shall promptly appoint a successor Trustee of such
Trust in a jurisdiction where there are no Avoidable Taxes. As used herein, an
"Avoidable Tax" in respect of such Trust means a state or local tax: (i) upon
(w) such Trust, (x) such Trust Property, (y) Certificateholders of such Trust or
(z) the Trustee for which the Trustee is entitled to seek reimbursement from the
Trust Property of such Trust, and (ii) which would be avoided if the Trustee
were located in another state, or jurisdiction within a state, within the United
States. A tax shall not be an Avoidable Tax in respect of any Trust if the
Guarantor or any Applicable Company or any Owner Trustee shall agree to pay, and
shall pay, such tax.
(f) If the Trustee shall resign, be removed or become incapable of
acting as trustee of any Trust, or if a vacancy shall occur in the office of the
Trustee of any Trust for any cause, the Applicable Company shall promptly
appoint a successor Trustee of such Trust. If, within one year after such
resignation, removal or incapability, or other occurrence of such vacancy, a
successor Trustee of such Trust shall be appointed by Act of the
Certificateholders of the related series holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in such Trust delivered to the Guarantor, the Applicable Company,
the related Owner Trustees, if any, the related Loan Trustee and the retiring
Trustee, the successor Trustee so appointed shall forthwith upon its acceptance
of such appointment, become the successor Trustee of such Trust and supersede
the successor Trustee of such Trust appointed as provided above. If no
successor Trustee shall have been so appointed as provided above and accepted
appointment in the manner hereinafter provided, any Certificateholder who has
been a bona fide Certificateholder of the related series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee of such
Trust.
(g) The successor Trustee of a Trust shall give notice of the
resignation and removal of the Trustee and appointment of the successor Trustee
by mailing written notice of such event by first-class mail, postage prepaid, to
the Certificateholders of the related series as their names and addresses appear
in the Register. Each notice shall include the name of such successor Trustee
and the address of its Corporate Trust office.
38
Section 7.9. Acceptance of Appointment by Successor. Every successor
--------------------------------------
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Guarantor and the Applicable Company and to the retiring Trustee with respect to
any or all Trusts an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee with respect to such Trusts shall
become effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Guarantor, the Applicable
Company or the successor Trustee, such retiring Trustee shall execute and
deliver an instrument transferring to such successor Trustee all such rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee in respect of such Trusts hereunder, subject nevertheless to its lien,
if any, provided for in Section 7.6 and all books and records, or true, correct
and complete copies thereof, held by such retiring Trustee in respect of such
Trusts hereunder. Upon request of any such successor Trustee, the Guarantor,
the Applicable Company, the retiring Trustee and such successor Trustee shall
execute and deliver any and all instruments containing such provisions as shall
be necessary or desirable to transfer and confirm to, and for more fully and
certainly vesting in, such successor Trustee all such rights, powers and trusts.
If a successor Trustee is appointed with respect to one or more (but
not all) Trusts, the Guarantor, the Applicable Companies, the predecessor
Trustee and each successor Trustee with respect to any Trust shall execute and
deliver a supplemental agreement hereto that shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the predecessor Trustee with respect to the Trusts as to
which the predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Basic Agreement and the applicable Trust Supplements as shall be necessary to
provide for or facilitate the administration of the Trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental agreement shall be construed as an appointment or constitution of
such Trustees as co-Trustees of the same Trust and that each such Trustee shall
be Trustee of separate Trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 7.10. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business. Any corporation into which the 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 Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
In case any Certificates shall have been executed or authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation
39
to such executing or authenticating Trustee may adopt such execution or
authentication and deliver the Certificates so executed or authenticated with
the same effect as if such successor Trustee had itself executed or
authenticated such Certificates.
Section 7.11. Maintenance of Agencies. (a) With respect to each
-----------------------
series of Certificates unless otherwise provided in the applicable Trust
Supplement, there shall at all times be maintained in the Borough of Manhattan,
The City of New York, an office or agency where Certificates of such series may
be presented or surrendered for registration of transfer or for exchange, and
for payment thereof and where notices and demands to or upon the Trustee in
respect of such Certificates or of this Basic Agreement or the related Trust
Supplement may be served. Such office or agency shall be initially at State
Street Bank and Trust Company, National Association, 00 Xxxxxxxx, Xxxxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx. Written notice of the location of each such other
office or agency and of any change of location thereof shall be given by the
Trustee to the Guarantor, each Applicable Company, any Owner Trustees, the Loan
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 Trustee.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder with respect to the Certificates of each series. Each such Authorized
Agent shall be a bank or trust company, shall be a corporation organized and
doing business under the laws of the United States or any state, with a combined
capital and surplus of at least $75,000,000, or a corporation the obligations of
which are guaranteed by a corporation organized and doing business under the
laws of the United States or any state, with a combined capital and surplus of
at least $75,000,000, and shall be authorized under such laws to exercise
corporate trust powers, subject to supervision by Federal or state authorities.
The Trustee shall initially be the Paying Agent and, as provided in Section 3.4,
Registrar hereunder with respect to the Certificates of each series. Each
Registrar shall furnish to the Trustee and each Applicable Company, at stated
intervals of not more than six months, and at such other times as the Trustee or
such Applicable Company may request in writing, a copy of the Register
maintained by such Registrar.
(c) Any corporation into which any Authorized Agent may be merged or
converted or with which it may be consolidated or any corporation resulting from
any merger, consolidation or conversion to which any Authorized Agent shall be a
party, or any corporation succeeding to the corporate trust business of any
Authorized Agent, shall be the successor of such Authorized Agent hereunder, if
such successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the parties
hereto or such Authorized Agent or such successor corporation.
(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Trustee, the Guarantor, each Applicable Company,
any related Owner Trustees and the related Loan Trustees. The Applicable
Company may, and at the request of the Trustee shall, at any time terminate the
agency of any Authorized Agent by giving written notice of
40
termination to such Authorized Agent and to the Trustee. Upon the resignation
or termination of an Authorized Agent or in case at any time any such Authorized
Agent shall cease to be eligible under this Section (when, in either case, no
other Authorized Agent performing the functions of such Authorized Agent shall
have been appointed), the Applicable Company shall promptly appoint one or more
qualified successor Authorized Agents, reasonably satisfactory to the Trustee,
to perform the functions of the Authorized Agent that has resigned or whose
agency has been terminated or who shall have ceased to be eligible under this
Section. The Applicable Company shall give written notice of any such
appointment made by it to the Trustee, any related Owner Trustees and the
related Loan Trustees; and in each case the Trustee shall mail notice of such
appointment to all Certificateholders of the related series as their names and
addresses appear on the Register for such series.
(e) The Guarantor and each Applicable Company agrees to pay, or cause
to be paid, from time to time to each Authorized Agent reasonable compensation
for its services and to reimburse it for its reasonable expenses.
Section 7.12. Money for Certificate Payments to Be Held in Trust.
--------------------------------------------------
All moneys deposited with any Paying Agent for the purpose of any payment on
Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of this
Section. Moneys so deposited and held in trust shall constitute a separate
trust fund for the benefit of the Certificateholders with respect to which such
money was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.13. Registration of Secured Notes in Trustee's Name. The
-----------------------------------------------
Trustee agrees that all Secured Notes to be held in a Trust and Permitted
Investments, if any, shall be issued in the name of the Trustee as trustee for
the applicable Trust or its nominee and held by the Trustee, or, if not so held,
the Trustee or its nominee shall be reflected as the owner of such Secured Notes
or Permitted Investments, as the case may be, in the register of the issuer of
such Secured Notes or Permitted Investments. In no event shall the Trustee
invest in, or hold, such Secured Notes or Permitted Investments in a manner that
would cause the Trustee not to have the ownership interest in such Secured Notes
or Permitted Investments under the applicable provisions of the Uniform
Commercial Code in effect where the Trustee holds such Secured Notes or
Permitted Investments or other applicable law then in effect.
Section 7.14. Representations and Warranties of Trustee. The Trustee
-----------------------------------------
hereby represents and warrants that:
41
(i) the Trustee is a state chartered trust company duly organized,
validly existing, and in good standing under the laws of Massachusetts;
(ii) the Trustee has full power, authority and legal right to execute,
deliver, and perform this Basic Agreement and has taken all necessary
action to authorize the execution, delivery, and performance by it of this
Basic Agreement;
(iii) the execution, delivery and performance by the Trustee of this
Basic Agreement (a) will not violate any provision of any United States or
Massachusetts law or regulation governing the banking and trust powers of
the Trustee or any order, writ, judgment or decree of any court, arbitrator
or governmental authority applicable to the Trustee or any of its assets,
(b) will not violate any provision of the Charter Documents or by-laws of
the Trustee, and (c) will not violate any provision of, or constitute, with
or without notice or lapse of time, a default under, or result in the
creation or imposition of any lien on any properties included in the Trust
Property of any Trust pursuant to the provisions of any mortgage,
indenture, contract, agreement or other undertaking to which it is a party,
which violation, default or lien could reasonably be expected to have an
adverse effect on the Trustee's performance or ability to perform its
duties hereunder or thereunder or on the transactions contemplated herein
or therein;
(iv) the execution, delivery and performance by the Trustee of this
Basic Agreement will not require the authorization, consent or approval of,
the giving of notice to, the filing or registration with, or the taking of
any other action in respect of, any United States or Massachusetts
governmental authority or agency regulating the banking and corporate trust
activities of the Trustee; and
(v) this Basic Agreement has been duly executed and delivered by the
Trustee and constitute the legal, valid, and binding agreements of the
Trustee, enforceable against it in accordance with their terms, provided
that enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights
of creditors generally and (ii) general principles of equity.
Section 7.15. Withholding Taxes, Information Reporting. As to the
----------------------------------------
Certificates of any series, the Trustee, as trustee of the related grantor trust
created by this Agreement, shall exclude and withhold from each distribution of
principal, premium, if any, and interest and other amounts due under this
Agreement or under the Certificates of such series any and all withholding taxes
applicable thereto as required by law. The Trustee agrees to act as such
withholding agent and, in connection therewith, whenever any present or future
taxes or similar charges are required to be withheld with respect to any amounts
payable in respect of the Certificates 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
42
as such Certificateholders of such series may reasonably request from time to
time. The Trustee agrees to file any other information reports as it may be
required to file under United States law.
Section 7.16. Trustee's Liens. The Trustee in its individual
---------------
capacity agrees that it will, in respect of each Trust created by this
Agreement, at its own cost and expense (and without right of indemnity
hereunder, including Section 7.6), promptly take any action as may be necessary
to duly discharge and satisfy in full any mortgage, pledge, lien, charge,
encumbrance, security interest or claim ("Trustee's Liens") on or with respect
to the Trust Property of such Trust that is attributable to the Trustee either
(i) in its individual capacity and that is unrelated to the transactions
contemplated by this Agreement, the related Note Purchase Agreements or the
related Note Documents, or (ii) as Trustee hereunder or in its individual
capacity and that arises out of acts or omissions that are not contemplated by
this Agreement.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.1. Names and Addresses of Certificateholders. The
-----------------------------------------
Applicable Company will furnish to the Trustee within 15 days after each Record
Date with respect to a Scheduled Payment, and at such other times as the Trustee
may request in writing, within 30 days after receipt by the Applicable Company
of any such request, a list, in such form as the Trustee may reasonably require,
of all information in the possession or control of the Applicable Company as to
the names and addresses of the Certificateholders of such series, in each case
as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee is the sole Registrar for such
-------- -------
series, no such list need be furnished; and provided further, however, that no
---------------- -------
such list need be furnished for so long as a copy of the Register is being
furnished to the Trustee pursuant to Section 7.11(b).
Section 8.2. Preservation of Information, Communications to
----------------------------------------------
Certificateholders. The Trustee shall preserve, in as current a form as is
------------------
reasonably practicable, the names and addresses of Certificateholders of each
series contained in the most recent list furnished to the Trustee as provided in
Section 7.11(b) or Section 8.1, as the case may be, and the names and addresses
of Certificateholders of each series received by the Trustee in its capacity as
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.11(b) or Section 8.1, as the case may be, upon receipt of
a new list so furnished.
Section 8.3. Reports by Trustee. Within 60 days after May 15 of each
------------------
year commencing with the first full year following the issuance of any series of
Certificates, the Trustee shall transmit to the Certificateholders of each
series, in the manner provided pursuant to Section 313(c) of the Trust Indenture
Act, a brief report dated as of such May 15, if required by Section 313(a) of
the Trust Indenture Act. The Trustee shall also transmit to Certificateholders
such reports, if any, as may be required pursuant to Section 313(b) of the
43
Trust Indenture Act at the times and in the manner provided pursuant thereto and
to Section 313(c) thereof.
Section 8.4. Reports by the Guarantor and each Company. The
-----------------------------------------
Guarantor and each Company shall:
(a) file with the Trustee, within 30 days after the Guarantor or such
Company is required to file the same with the SEC, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may from time to time by
rules and regulations prescribe) that the Guarantor or such Company is
required to file with the SEC pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended; or, if the Guarantor or
such Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the
SEC, in accordance with rules and regulations prescribed by the SEC, such
of the supplementary and periodic information, documents and reports that
may be required pursuant to Section 13 of the Securities Exchange Act of
1934, as amended, in respect of a security listed and registered on a
national securities exchange as may be prescribed in such rules and
regulations;
(b) file with the Trustee and the SEC, in accordance with the rules
and regulations prescribed by the SEC, such additional information,
documents and reports with respect to compliance by the Guarantor or such
Company with the conditions and covenants provided for in this Agreement,
as may be required by such rules and regulations, including, in the case of
annual reports, if required by such rules and regulations, certificates or
opinions of independent public accountants, conforming to the requirements
of Section 1.2;
(c) transmit to all Certificateholders of each series, in the manner
and to the extent provided in Section 313(c) of the Trust Indenture Act,
such summaries of any information, documents and reports required to be
filed by the Guarantor and the Applicable Company pursuant to subsections
(a) and (b) of this Section 8.4, as may be required by rules and
regulations prescribed by the SEC; and
(d) furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Guarantor's or the Applicable Company's compliance with all conditions and
covenants under this Agreement (it being understood that for purposes of
this paragraph (d), such compliance shall be determined without regard to
any period of grace or requirement of notice provided under this
Agreement).
44
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.1. Supplemental Agreements Without Consent of
------------------------------------------
Certificateholders. Without the consent of the Certificateholders of any
------------------
series, the Guarantor and the Companies (provided that supplemental agreements
that only affect one or more specific Trusts shall only be entered into by the
Applicable Company or Companies for such Trust or Trusts) may, and the Trustee
(subject to Section 9.3) shall, at any time and from time to time enter into one
or more agreements supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(1) to provide for the formation of a Trust, the issuance of a series
of Certificates and the other matters contemplated by Section 2.1(b); or
(2) to evidence the succession of another corporation to the Guarantor
or such Company and the assumption by any such successor of the covenants
of the Guarantor or such Company contained in this Agreement; or
(3) to add to the covenants of the Guarantor or the Applicable Company
for the benefit of the Certificateholders of any series, or to surrender
any right or power in this Agreement conferred upon the Guarantor or the
Applicable Company; or
(4) to correct or supplement any provision or to cure any ambiguity in
this Agreement that may be defective or inconsistent with any other
provision herein or in any Trust Supplement, or to make any other
provisions with respect to matters or questions arising under this
Agreement, provided that any such action shall not adversely affect the
--------
interests of the Certificateholders of any series of Certificates
Outstanding or to correct any mistake; or
(5) to modify, eliminate or add to the provisions of this Agreement to
such extent as shall be necessary to continue the qualification of this
Agreement (including any supplemental agreement) under the Trust Indenture
Act, or under any similar Federal statute hereafter enacted, or to add to
this Agreement such other provisions as may be expressly permitted by the
Trust Indenture Act, excluding, however, the provisions referred to in
Section 316(a)(2) of the Trust Indenture Act as in effect at the date as of
which this instrument was executed or any corresponding provision in any
similar Federal statute hereafter enacted; or
(6) to evidence and provide for the acceptance of appointment under
this Agreement by a successor Trustee with respect to one or more Trusts
and to add to or change any of the provisions of this Agreement as shall be
necessary to provide for or facilitate the administration of the Trusts
hereunder and thereunder by more than one Trustee, pursuant to the
requirements of Section 7.9;
45
(7) to correct or supplement the description of any property
constituting property of such Trust; or
(8) to make any other amendments or modifications hereto, provided
--------
such amendments or modifications shall only apply to Certificates of one or
more series to be thereafter issued.
Section 9.2. Supplemental Agreements with Consent of
---------------------------------------
Certificateholders. With respect to each separate Trust and the series of
------------------
Certificates relating thereto, with the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust, by Act of said Certificateholders
delivered to the Applicable Company and the Trustee, the Guarantor and
Applicable Company may (with the consent of the Owner Trustee, if any, relating
to such Certificates, which consent shall not be unreasonably withheld), and the
Trustee (subject to Section 9.3) shall, enter into an agreement or agreements
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement to the extent
applicable to such Certificateholders or of modifying in any manner the rights
and obligations of such Certificateholders under this Agreement; provided,
--------
however, that no such supplemental agreement shall, without the consent of the
-------
Certificateholder of each Outstanding Certificate of such series affected
thereby;
(1) reduce in any manner the amount of, or delay the timing of, any
receipt by the Trustee of payments on the Secured Notes held in such Trust
or distributions that are required to be made herein on any Certificate of
such series, or change any date of payment on any Certificate of such
series, or change the place of payment where, or the coin or currency in
which, any Certificate of such series is payable, or impair the right to
institute suit for the enforcement of any such payment or distribution on
or after the Regular Distribution Date or Special Distribution Date
applicable thereto; or
(2) permit the disposition of any Secured Note in the Trust Property
of such Trust except as permitted by this Agreement, or otherwise deprive
such Certificateholder of the benefit of the ownership of the Secured Notes
in such Trust; or
(3) reduce the percentage of the aggregate Fractional Undivided
Interests of such Trust that is required for any such supplemental
agreement, or reduce such percentage required for any waiver (of compliance
with certain provisions of this Agreement or certain defaults hereunder and
their consequences) provided for in this Agreement; or
(4) modify any of the provisions of this Section 9.2 or Section 6.5,
except to increase any percentage required for such consent or waiver or to
provide that certain other provisions of this Agreement cannot be modified
or waived without the consent of the Certificateholder of each Certificate
of such series affected thereby.
46
It shall not be necessary for any Act of such Certificateholders under
this Section to approve the particular form of any proposed supplemental
agreement, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 9.3. Documents Affecting Trustee. If in the opinion of the
---------------------------
Trustee any document required to be executed by it pursuant to the terms of
Section 9.1 or 9.2 affects any interest, right, duty, immunity or indemnity in
favor of the Trustee under this Basic Agreement or any Trust Supplement, the
Trustee may in its discretion decline to execute document.
Section 9.4. Execution of Supplemental Agreements. In executing, or
------------------------------------
accepting the additional trusts created by, any supplemental agreement permitted
by this Article or the modifications thereby of the trusts created by this
Agreement, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Agreement.
Section 9.5. Effect of Supplemental Agreements. Upon the execution
---------------------------------
of any supplemental agreement under this Article, this Basic Agreement shall be
modified in accordance therewith, and such supplemental agreement shall form a
part of this Basic Agreement for all purposes; and every Certificateholder of
each series theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby to the extent applicable to such series.
Section 9.6. Conformity with Trust Indenture Act. Every supplemental
-----------------------------------
agreement executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
Section 9.7. Reference in Certificates to Supplemental Agreements.
----------------------------------------------------
Certificates of each series authenticated and delivered after the execution of
any supplemental agreement applicable to such series pursuant to this Article
may bear a notation in form approved by the Trustee as to any matter provided
for in such supplemental agreement; and, in such case, suitable notation may be
made upon Outstanding Certificates of such series after proper presentation and
demand.
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.1. Amendments and Supplements to Indenture and Other Note
------------------------------------------------------
Documents. In the event that the Trustee, as holder of any Secured Notes in
---------
trust for the benefit of the Certificateholders of any series, receives a
request for a consent to any amendment, modification, waiver or supplement under
any related Indenture or other related Note Document or any related Note
Purchase Agreement, the Trustee shall forthwith send a notice of such proposed
amendment, modification, waiver or supplement, to each Certificateholder of such
series registered on the Register as of such date. The Trustee shall request
from the
47
Certificateholders of such series Directions as to (i) whether or not to direct
the Trustee to take or refrain from taking any action that a holder of such
Secured Note has the option to direct, (ii) whether or not to give or execute
any waivers, consents, amendments, modifications or supplements as a holder of
such Secured Note and (iii) how to vote the Secured Notes if a vote has been
called for with respect thereto. Provided such a request for Certificateholder
Direction shall have been made, in directing any action or casting any vote or
giving any consent as the holder of any such Secured Notes, the Trustee shall
vote or consent with respect to such Secured Note in the same proportion as the
Certificates of such series were actually voted by Acts of Certificateholders
delivered to the Trustee prior to two Business Days before the Trustee directs
such action or casts such vote or gives such consent. Notwithstanding the
foregoing, but subject to Section 6.4, in the case that an Event of Default
hereunder with respect to such series shall have occurred and be continuing, the
Trustee may, in its own discretion and at its own direction, consent and notify
the relevant Loan Trustee of such consent to any amendment, modification, waiver
or supplement under the relevant Indenture or any other related Note Document.
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.1. Termination of the Trusts. In respect of each Trust
-------------------------
created by this Basic Agreement as supplemented by a related Trust Supplement,
the respective obligations and responsibilities of the Guarantor, the Applicable
Company and the Trustee created hereby and thereby and such Trust shall
terminate upon the distribution to all Holders of the Certificates of the series
of such Trust and the Trustee of all amounts required to be distributed to them
pursuant to this Basic Agreement and such Trust Supplement and the disposition
of all property held as part of the Trust Property of the related series of such
Trust; provided, however, that in no event shall such Trust continue beyond the
-------- -------
final expiration date determined as provided in such Trust Supplement.
Notice of any termination of a Trust, specifying the applicable
Regular Distribution Date (or applicable Special Distribution Date, as the case
may be) upon which the Certificateholders of the series issued with respect to
such Trust may surrender their Certificates to the Trustee for payment of the
final distribution and cancellation, shall be mailed promptly by the Trustee to
Certificateholders of such series not earlier than the minimum number of days
and not more than the maximum number of days specified therefor in the related
Trust Supplement preceding such final distribution. Such notice in addition
shall specify (A) the Regular Distribution Date (or Special Distribution Date,
as the case may be) upon which the proposed final payment of the Certificates of
such series will be made upon presentation and surrender of Certificates of such
series at the office or agency of the Trustee therein specified, (B) the amount
of any such proposed final payment, and (C) that the Record Date otherwise
applicable to such Regular Distribution Date (or Special Distribution Date, as
the case may be) is not applicable, payments being made only upon presentation
and surrender of the Certificates of such series at the office or agency of the
Trustee therein specified. The Trustee shall give
48
such notice to the Registrar at the time such notice is given to
Certificateholders of such series. Upon presentation and surrender of the
Certificates of such series, the Trustee shall cause to be distributed to
Certificateholders of such series amounts distributable on such Regular
Distribution Date (or Special Distribution Date, as the case may be) pursuant to
Section 4.2.
In the event that all of the Certificateholders of such series shall
not surrender their Certificates for cancellation within six months after the
date specified in the above-mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders of such series to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. In the event that any money held by the Trustee for the
payment of distributions on the Certificates of such series shall remain
unclaimed for two years (or such lesser time as the Trustee shall be satisfied,
after sixty days' notice from the Applicable Company, is one month prior to the
escheat period provided under applicable law) after the final distribution date
with respect thereto, the Trustee shall pay to each Loan Trustee the appropriate
amount of money relating to such Loan Trustee and shall give written notice
thereof to the related Owner Trustees, if any, the Guarantor and the Applicable
Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1. Limitation on Rights of Certificateholders. The death
------------------------------------------
or incapacity of any Certificateholder of any series shall not operate to
terminate this Agreement, or the related Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding up of the related Trust, nor otherwise affect the rights, obligations,
and liabilities of the parties hereto or any of them.
Section 12.2. Certificates Nonassessable and Fully Paid.
-----------------------------------------
Certificateholders of each series shall not be personally liable for obligations
of the related Trust, the Fractional Undivided Interests represented by the
Certificates of such series shall be nonassessable for any losses or expenses of
such Trust or for any reason whatsoever, and Certificates of such series upon
authentication thereof by the Trustee pursuant to Section 3.02 are 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 Trust,
or the obligations of the parties hereto, nor shall anything set forth herein,
or contained in the terms of the Certificates of such series, be construed so as
to constitute the Certificateholders of such series from time to time as
partners or members of an association.
Section 12.3. Notices. (a) Unless otherwise specifically provided
-------
herein or in the applicable Trust Supplement with respect to any Trust, all
notices required under the terms and provisions of this Basic Agreement or such
Trust Supplement with respect to such Trust
49
shall be in English and in writing, and any such notice may be given by United
States mail, courier service, telegram, telex, telemessage, telecopy, telefax,
cable or facsimile (confirmed by telephone or in writing in the case of notice
by telegram, telex, telemessage, telecopy, telefax, cable or facsimile) or any
other customary means of communication, and any such notice shall be effective
when delivered or, if mailed, three days after deposit in the United States mail
with proper postage for ordinary mail prepaid,
if to the Guarantor or any Company, to its address set forth under its
name on the signature pages hereto;
if to the Trustee, to: State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(b) The Guarantor, any Company or the Trustee, by notice to the other,
may designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Certificateholders of any series
shall be mailed by first-class mail to the addresses for Certificateholders of
such series shown on the Register kept by the Registrar and to addresses filed
with the Trustee for Certificate Owners of such series. Failure so to mail a
notice or communication or any defect in such notice or communication shall not
affect its sufficiency with respect to other Certificateholders of such series.
(d) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is conclusively presumed to have been duly
given, whether or not the addressee receives it.
(e) If the Guarantor or any Company mails a notice or communication to
the Certificateholders of such series, it shall mail a copy to the Trustee and
to each Paying Agent for such series at the same time.
(f) Notwithstanding the foregoing, all communications or notices to
the Trustee shall be deemed to be given only when received by a Responsible
Officer of the Trustee.
(g) The Trustee shall promptly furnish the Guarantor and Applicable
Company with a copy of any demand, notice or written communication received by
the Trustee hereunder from any Certificateholder, Owner Trustee or Loan Trustee.
50
(h) The Trustee shall provide to the Guarantor a copy of any notice or
communication it gives to any Company contemporaneously with giving such notice
or communication to such Company.
Section 12.4. Governing Law. THIS BASIC AGREEMENT HAS BEEN DELIVERED
-------------
IN THE STATE OF NEW YORK AND THIS BASIC AGREEMENT AND THE CERTIFICATES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.5. Severability of Provisions. If any one or more of the
--------------------------
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or any Trust, or of
the Certificates of any series or the rights of the Certificateholders thereof.
Section 12.6. Trust Indenture Act Controls. This Agreement is
----------------------------
subject to the provisions of the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions.
Section 12.7. Effect of Headings and Table of Contents. The Article
----------------------------------------
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 12.8. Successors and Assigns. All covenants, agreements,
----------------------
representations and warranties in this Agreement by the Trustee, the Guarantor
and each Company shall bind and, to the extent permitted hereby, shall inure to
the benefit of and be enforceable by their respective successors and assigns,
whether so expressed or not.
Section 12.9. Benefits of Agreement. Nothing in this Agreement or in
---------------------
the Certificates of any series, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the
Certificateholders of each series, any benefit or any legal or equitable right,
remedy or claim under this Agreement, except as expressly provided in this
Agreement.
Section 12.10. Legal Holidays. In any case where any Regular
--------------
Distribution Date or Special Distribution Date relating to any Certificate of
any series shall not be a Business Day with respect to such series, then
(notwithstanding any other provision of this Agreement) payment need not be made
on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on such Regular Distribution Date or Special
Distribution Date, and no interest shall accrue during the intervening period.
51
Section 12.11. Counterparts. For the purpose of facilitating the
------------
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
52
IN WITNESS WHEREOF, the Guarantor, each Company and the Trustee have
caused this Basic Agreement to be duly executed by their respective officers or
authorized representatives, all as of the day and year first above written.
MOBIL CORPORATION
By
--------------------------------
Title:
MOBIL MARINE FINANCE COMPANY I INC.
By
--------------------------------
Title:
MOBIL MARINE FINANCE COMPANY II INC.
By
--------------------------------
Title:
MOBIL LEASE FINANCE COMPANY INC.
By
--------------------------------
Title:
MOBIL CHEMICAL FINANCE (TEXAS) INC.
By
--------------------------------
Title:
53
MOBIL CHEMICAL FINANCE
(LOUISIANA) INC.
By
--------------------------------
Title:
MOBIL PETRORAIL FINANCE INC.
By
--------------------------------
Title:
MOBIL TRANSPORT FINANCE COMPANY INC.
By
--------------------------------
Title:
MOBIL EQUIPMENT FINANCE COMPANY INC.
By
--------------------------------
Title:
STATE STREET BANK AND TRUST COMPANY
as Trustee
By
--------------------------------
Title:
54
EXHIBIT A
FORM OF CERTIFICATE
/*/Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York Corporation
("DTC"), to Issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch the registered owner hereof, Cede & Co., has an interest herein.
MOBIL CORPORATION __________ PASS THROUGH TRUST
Pass Through
Certificate, Series _____
Final Distribution Date: ____________, ____
evidencing a fractional undivided interest in a trust, the property of
which includes certain secured notes each secured by Property owned by or
leased to one or more Companies all of whose obligations are guaranteed by
Mobil Corporation.
Certificate
No.______ $__________ Fractional Undivided Interest
representing .___% of the Trust per $1,000 face amount
THIS CERTIFIES THAT __________, for value received, is the registered
owner of a $ dollars) (__________ dollars) Fractional Undivided Interest in
the Mobil Corporation _____ Pass Through Trust (the "Trust") created by
__________, as trustee (the "Trustee"), as trustee pursuant to a Pass Through
Trust Agreement, dated as of _________, 1996 (the "Basic Agreement"), as
supplemented by Trust Supplement No. _____ thereto dated _________, 199_
(collectively, the "Agreement"), among the Trustee and Mobil Corporation, a
Delaware corporation (the "Guarantor") and __________ (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
----------
* This legend to appear on Book-Entry Certificates to be deposited with The
Depository Trust Company. One Certificate may be issued in a denomination
of less than $1,000 which shall not have this legend.
A-1
Agreement. This Certificate is one of the duly authorized Certificates
designated as "Pass Through Certificates, Series _____" (herein called the
"Certificates"). This Certificate is issued under and is subject to the terms,
provisions, and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Certificateholder is bound. The property of the Trust includes certain Secured
Notes (the "Trust Property"). Each issue of the Secured Notes is secured by a
security interest in Property leased to or owned by the Company.
The Certificates represent fractional undivided interests in the Trust
and the Trust Property, and have no rights, benefits or interest in respect of
any other separate trust established pursuant to the terms of the Basic
Agreement for any other series of certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Agreement, from
funds then available to the Trustee, there will be distributed on each and
(a "Regular Distribution Date"), commencing on ____________, 199_, to the
Person in whose name this 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 Secured Notes due on such Regular
Distribution Date, the receipt of which has been confirmed by the Trustee, equal
to the product of the percentage interest in the Trust evidenced by this
Certificate and an amount equal to the sum of such Scheduled Payments. Subject
to and in accordance with the terms of the Agreement, in the event that Special
Payments on the Secured Notes are received by the Trustee, from funds then
available to the Trustee, there shall be distributed on the applicable Special
Distribution Date, to the Person in whose name this Certificate is registered at
the close of business on the 15th day preceding such Special Distribution Date,
an amount in respect of such Special Payments on the Secured Notes, the receipt
of which has been confirmed by the Trustee, equal to the product of the
percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Special Payments so received. If a Regular
Distribution Date or Special Distribution Date is not a Business Day,
distribution shall be made on the immediately following Business Day with the
same force and effect as if made on such Regular Distribution Date or Special
Distribution Date and no interest shall accrue during the intervening period.
The Special Distribution Date shall be the _________ day of the month
determined as provided in the Agreement. The Trustee shall mail notice of each
Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Trustee by check
mailed to the Person entitled thereto, without the presentation or surrender of
this Certificate or the making of any notation hereon. Except as otherwise
provided in the Agreement and notwithstanding the above, the final distribution
on this Certificate will be made after notice mailed by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency of the Trustee specified in such notice.
A-2
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
MOBIL CORPORATION _____
PASS THROUGH TRUST
By: STATE STREET BANK AND
TRUST COMPANY,
as Trustee
By:
-------------------------------
Title:
Dated:
A-3
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred
to in the within-mentioned Agreement.
STATE STREET BANK AND
TRUST COMPANY,
as Trustee
By:
-----------------------------
Authorized Officer
A-4
[Reverse of Certificate]
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, the Guarantor, the Company or the
Trustee or any affiliate thereof. The Certificates are limited in right of
payment, all as more specifically set forth on the face hereof and in the
Agreement. All payments or distributions made to Certificateholders under the
Agreement shall be made only from the Trust Property and only to the extent that
the Trustee shall have sufficient income or proceeds from the Trust Property to
make such payments in accordance with the terms of the Agreement. Each Holder
of this Certificate, by its acceptance hereof, agrees that it will look solely
to the income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby. A copy of the Agreement may
be examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Guarantor, the Company and the rights of the Certificateholders under the
Agreement at any time with the consent of the Holders holding Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Trust. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Certificateholder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the
Certificateholders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in its capacity as Registrar, or
by any successor Registrar, in the [Borough of Manhattan, the City of New York],
duly endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Registrar duly executed by the Holder hereof
or such Certificateholder's attorney duly authorized in writing, and thereupon
one or more new Certificates of authorized denominations evidencing the same
aggregate Fractional Undivided Interest in the Trust will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in minimum denominations of $1,000 Fractional Undivided Interest and
integral multiples thereof except that one Certificate may be in a denomination
of less than $1,000. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable
A-5
for new Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the 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 Trustee shall require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
The Guarantor, the Company, the Trustee, the Registrar and any agent
of the Trustee or the Registrar may treat the person in whose name this
Certificate is registered on the Register as the owner hereof for all purposes,
and neither the Guarantor, the Company, the Trustee, the Registrar nor any such
agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
A-6
