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EXHIBIT 4(a)(2)
PASS THROUGH TRUST AGREEMENT
DATED AS OF MAY 17, 2000
BETWEEN
UNION TANK CAR COMPANY
AND
BANK ONE, NATIONAL ASSOCIATION,
AS TRUSTEE
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ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS................................................................................2
Section 1.02 COMPLIANCE CERTIFICATES AND OPINIONS.......................................................9
Section 1.03 FORM OF DOCUMENTS DELIVERED TO TRUSTEE....................................................10
Section 1.04 DIRECTIONS OF CERTIFICATEHOLDERS..........................................................10
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES: ACQUISITION OF TRUST PROPERTY
Section 2.01 AMOUNT UNLIMITED; ISSUABLE IN SERIES......................................................11
Section 2.02 ACQUISITION OF EQUIPMENT NOTES............................................................13
Section 2.03 ACCEPTANCE BY TRUSTEE.....................................................................15
Section 2.04 LIMITATION OF POWERS......................................................................15
ARTICLE III
THE CERTIFICATES
Section 3.01 FORM, DENOMINATION AND EXECUTION OF CERTIFICATES..........................................16
Section 3.02 AUTHENTICATION OF CERTIFICATES............................................................16
Section 3.03 TEMPORARY CERTIFICATES....................................................................17
Section 3.04 TRANSFER AND EXCHANGE.....................................................................17
Section 3.05 BOOK-ENTRY AND DEFINITIVE CERTIFICATES....................................................18
Section 3.06 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.........................................20
Section 3.07 PERSONS DEEMED OWNERS.....................................................................20
Section 3.08 CANCELLATION..............................................................................20
Section 3.09 LIMITATION OF LIABILITY FOR PAYMENTS......................................................20
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 4.01 CERTIFICATE ACCOUNT AND SPECIAL PAYMENTS ACCOUNT..........................................21
Section 4.02 DISTRIBUTIONS FROM CERTIFICATE ACCOUNT AND SPECIAL PAYMENTS ACCOUNT.......................21
Section 4.03 STATEMENTS TO CERTIFICATEHOLDERS..........................................................23
Section 4.04 INVESTMENT OF SPECIAL PAYMENT MONEYS......................................................24
ARTICLE V
THE COMPANY
Section 5.01 MAINTENANCE OF CORPORATE EXISTENCE........................................................24
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Section 5.02 CONSOLIDATION, MERGER, ETC................................................................24
ARTICLE VI
DEFAULT
Section 6.01 EVENTS OF DEFAULT; EXERCISE OF REMEDIES...................................................25
Section 6.02 INCIDENTS OF SALE OF EQUIPMENT NOTES......................................................25
Section 6.03 JUDICIAL PROCEEDINGS INSTITUTED BY TRUSTEE; TRUSTEE MAY BRING SUIT........................26
Section 6.04 CONTROL BY CERTIFICATEHOLDERS.............................................................26
Section 6.05 WAIVER OF PAST DEFAULTS...................................................................27
Section 6.06 RIGHT OF CERTIFICATEHOLDERS TO RECEIVE PAYMENTS NOT TO BE IMPAIRED........................27
Section 6.07 CERTIFICATEHOLDERS MAY NOT BRING SUIT EXCEPT UNDER CERTAIN CONDITIONS.....................27
Section 6.08 REMEDIES CUMULATIVE.......................................................................28
Section 6.09 UNDERTAKING FOR COSTS.....................................................................28
ARTICLE VII
THE TRUSTEE
Section 7.01 CERTAIN DUTIES AND RESPONSIBILITIES.......................................................28
Section 7.02 NOTICE OF DEFAULTS........................................................................29
Section 7.03 CERTAIN RIGHTS OF TRUSTEE.................................................................29
Section 7.04 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF CERTIFICATES..................................30
Section 7.05 MAY HOLD CERTIFICATES.....................................................................31
Section 7.06 MONEY HELD IN TRUST.......................................................................31
Section 7.07 COMPENSATION AND REIMBURSEMENT............................................................31
Section 7.08 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY...................................................32
Section 7.09 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.........................................32
Section 7.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR....................................................34
Section 7.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS...............................34
Section 7.12 MAINTENANCE OF AGENCIES...................................................................35
Section 7.13 MONEY FOR CERTIFICATE PAYMENTS TO BE HELD IN TRUST........................................36
Section 7.14 REGISTRATION OF EQUIPMENT NOTES IN TRUSTEE'S NAME.........................................36
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Section 7.15 REPRESENTATIONS AND WARRANTIES OF TRUSTEE.................................................36
Section 7.16 WITHHOLDING TAXES; INFORMATION REPORTING..................................................37
Section 7.17 TRUSTEE'S LIENS...........................................................................38
Section 7.18 PREFERENTIAL COLLECTION OF CLAIMS.........................................................38
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01 THE COMPANY TO FURNISH TRUSTEE WITH NAMES AND ADDRESSES OF CERTIFICATEHOLDERS.............38
Section 8.02 PRESERVATION OF INFORMATION; COMMUNICATIONS TO CERTIFICATEHOLDERS.........................38
Section 8.03 REPORTS BY TRUSTEE........................................................................38
Section 8.04 REPORTS BY THE COMPANY....................................................................38
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01 SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF CERTIFICATEHOLDERS.............................39
Section 9.02 SUPPLEMENTAL AGREEMENTS WITH CONSENT OF CERTIFICATEHOLDERS................................40
Section 9.03 DOCUMENTS AFFECTING IMMUNITY OR INDEMNITY.................................................41
Section 9.04 EXECUTION OF SUPPLEMENTAL AGREEMENTS......................................................41
Section 9.05 EFFECT OF SUPPLEMENTAL AGREEMENTS.........................................................42
Section 9.06 CONFORMITY WITH TRUST INDENTURE ACT.......................................................42
Section 9.07 REFERENCE IN CERTIFICATES TO SUPPLEMENTAL AGREEMENTS......................................42
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.01 AMENDMENTS AND SUPPLEMENTS TO INDENTURE AND OTHER NOTE DOCUMENTS..........................42
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01 TERMINATION OF THE TRUSTS.................................................................43
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS................................................44
Section 12.02 LIABILITIES OF CERTIFICATEHOLDERS.........................................................44
Section 12.03 NOTICES...................................................................................44
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Section 12.04 GOVERNING LAW.............................................................................45
Section 12.05 SEVERABILITY OF PROVISIONS................................................................45
Section 12.06 TRUST INDENTURE ACT CONTROLS..............................................................46
Section 12.07 EFFECT OF HEADINGS AND TABLE OF CONTENTS..................................................46
Section 12.08 SUCCESSORS AND ASSIGNS....................................................................46
Section 12.09 BENEFITS OF AGREEMENT.....................................................................46
Section 12.10 LEGAL HOLIDAYS............................................................................46
Section 12.11 COUNTERPARTS..............................................................................46
Section 12.12 COMMUNICATION BY CERTIFICATEHOLDERS WITH OTHER CERTIFICATEHOLDERS.........................46
Section 12.13 INTENTION OF PARTIES......................................................................46
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UNION TANK CAR COMPANY
Reconciliation and tie between Union Tank Car Company Pass Through Trust
Agreement, dated as of May 17, 2000 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) 7.08
(a)(2) 7.08
310(b)(i)-(iii) 7.09
312(a) 3.05; 8.01; 8.02
313(a) 8.03
313(c) 8.04
314(a) 8.04(a) - (c)
(a)(4) 8.04(d)
(c)(1) 1.02
(c)(2) 1.02
(e) 1.02
315(b) 7.02
316(a)(last sentence) 1.04(c)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(d)
317(a)(1) 6.03
(b) 7.13
318(a) 12.06
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PASS THROUGH TRUST AGREEMENT
This PASS THROUGH TRUST AGREEMENT, dated as of May 17, 2000 (the "Basic
Agreement"), between UNION TANK CAR COMPANY, a Delaware corporation (the
"Company"), and BANK ONE, NATIONAL ASSOCIATION, a national banking association,
as Trustee, is made with respect to the formation from time to time of separate
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.
WITNESSETH:
WHEREAS, capitalized terms used herein shall have the meanings set forth or
referred to in Section 1.01;
WHEREAS, from time to time, the Company and the Trustee may enter into a
Trust Supplement 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 Equipment 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 Equipment Notes in trust for the benefit of the
Certificateholders of such Trust;
WHEREAS, to facilitate the sale of Equipment Notes to, and the purchase of
Equipment Notes by, the Trustee on behalf of each Trust created from time to
time pursuant to this Agreement, the Company as the "Issuer", as such term is
defined in and solely for purposes of the Securities Act of 1933, as amended, of
the Certificates to be issued in respect of each Trust and as the "Obligor", as
such term is defined in and solely for purposes of the Trust Indenture Act of
1939, as amended, has duly authorized the execution and delivery of this Basic
Agreement and each Trust Supplement with respect to all such Certificates and is
undertaking to perform certain administrative and ministerial duties hereunder
and is also undertaking 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;
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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 1.01 DEFINITIONS. For all purposes of this Basic Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms used herein that are defined in this Article I
have the meanings assigned to them in this Article I, and include the
plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, or by the rules
promulgated under the Trust Indenture Act, have the meanings assigned to
them therein;
(c) 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;
(d) 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, Subsection or other subdivision;
(e) whenever the words "including", "include" or "includes" are
used herein, it shall be deemed to be followed by the phrase "without
limitation"; and
(f) 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.
Act has the meaning, with respect to any Certificateholder, specified in
Section 1.04(a).
Affiliate has, for any Person, the meaning specified in Rule 0-2 under the
Trust Indenture Act.
Authorized Agent means, with respect to the Certificates of any series, 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 does not include any
Trust Supplement.
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Book-Entry Certificates means, with respect to the Certificates of any
series, a beneficial interest in the Certificates of such series, ownership and
transfers of which shall be made through book entries as described in Section
3.05.
Business Day means, with respect to the Certificates of any series, any day
other than a Saturday, a Sunday or a day on which commercial banks are required
or authorized to close in Chicago, Illinois; New York, New York; or, so long as
any Certificate of such series is outstanding, the city and state in which the
Trustee or any related Indenture Trustee maintains its Corporate Trust Office or
receives and disburses funds.
Certificate means any one of the certificates executed and authenticated by
the Trustee, substantially in the form of Exhibit A hereto.
Certificate Account means, with respect to the Certificates of any series,
the account or accounts created and maintained for such series pursuant to
Section 4.01(a) and the related Trust Supplement.
Certificateholder or Holder means, with respect to the Certificates of any
series, the Person in whose name a Certificate of such series is registered in
the Register for Certificates of such series.
Certificate Owner means, with respect to the Certificates of any series,
for purposes of Section 3.05, the Person who owns a Book-Entry Certificate 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 Union Tank Car Company, a Delaware corporation, or its
successor in interest pursuant to Section 5.02, or (only in the context of
provisions hereof, if any, when such reference is required for purposes of
compliance with the Trust Indenture Act) any other "obligor" (within the meaning
of the Trust Indenture Act) with respect to the Certificates of any series.
Corporate Trust Office means, with respect to the Trustee or any Indenture
Trustee, the office of such trustee in the city at which at any particular time
its corporate trust business shall be principally administered.
Cut-Off Date means, with respect to the Certificates of any series, the
date designated as such in the Trust Supplement establishing such series.
Definitive Certificates has the meaning, with respect to the Certificates
of any series, specified in Section 3.05.
Direction has the meaning specified in Section 1.04(a).
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Equipment means the items of railroad rolling stock described in each Lease
and the related Lease Supplements, together with any and all accessions,
additions, improvements and replacements from time to time incorporated or
installed in any item thereof which are the property of an Owner Trustee
pursuant to a xxxx of sale or a Lease and securing one or more Equipment Notes.
Equipment Notes means, with respect to the Certificates of any series, all
of the equipment notes issued under the Indentures related to such series of
Certificates.
ERISA means the Employee Retirement Income Security Act of 1974, as amended
from time to time, or any successor federal statute.
Escrow Account has the meaning, with respect to the Certificates of any
series, specified in Section 2.02(b).
Escrowed Funds has the meaning, with respect to any Trust, specified in
Section 2.02(b).
Event of Default means, in respect of any Trust, an Indenture Event of
Default under any Indenture pursuant to which Equipment 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.
Indenture means, with respect to any Trust, each of the one or more
separate trust indenture and security agreements or trust indenture and
mortgages or similar documents described in, or on a schedule attached to, the
Trust Supplement and trust indenture and security agreement or trust indenture
and mortgage or similar document having substantially the same terms and
conditions which relates to Substitute Equipment, as each such indenture may be
amended or supplemented in accordance with its respective terms; and
"Indentures" means all of such agreements.
Indenture Event of Default means, with respect to any Indenture, any
Indenture Event of Default (as such term is defined in such Indenture).
Indenture Trustee means, with respect to any Equipment Note or the
Indenture applicable thereto, the bank or trust company designated as loan or
indenture trustee under such Indenture, and any successor to such Indenture
Trustee as such trustee; and "Indenture Trustees" means all of the Indenture
Trustees under the Indentures.
Initial Regular Distribution Date means, with respect to the Certificates
of any series, the first Regular Distribution Date on which a Scheduled Payment
is to be made.
Issuance Date means, with respect to the Certificates of any series, the
date of the issuance of such Certificates.
Lease means any lease between an Owner Trustee, as the lessor, and the
Company, as the lessee, referred to in the related Indenture, as such lease may
be amended, supplemented or otherwise modified in accordance with its terms; and
"Leases" means all such Leases.
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Letter of Representations means, with respect to the Certificates of any
series, an agreement among the Company, the Trustee and the initial Clearing
Agency.
Note Documents means, with respect to the Certificates of any series, the
Equipment Notes with respect to such Certificates and, with respect to such
Equipment Notes, the related Indenture, Participation Agreement, if any, and, if
the related Equipment is leased to the Company, the related Lease and the
related Owner Trustee's Purchase Agreement.
Officer's Certificate means a certificate signed by a Responsible Officer
of the Company, the Trustee, an Owner Trustee or a Indenture 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 Company may be (i) the General Counsel or Assistant
General Counsel of the Company, (ii) Xxxx, Gerber & Xxxxxxxxx or (iii) such
other counsel designated by the Company and reasonably acceptable to the Trustee
and (b) in the case of any Owner Trustee or any Indenture 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.
Other Agreements has the meaning specified in Section 6.01(b).
Outstanding when used 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 canceled 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 11.01 hereof has been theretofore deposited with the
Trustee in trust for the Holders of the Certificates of such series as
provided in Section 4.01 pending distribution of such money to such
Certificateholders pursuant to payment of 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.
Owner Participant means, with respect to any Equipment Note, the "Owner
Participant", if any, as referred to in the Indenture pursuant to which such
Equipment 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 Indentures.
Owner Trustee means, with respect to any Equipment Note, the "Owner
Trustee", if any, as referred to in the Indenture pursuant to which such
Equipment 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 related
Indentures.
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Participation Agreement means, with respect to the Certificates of any
series, any participation or similar agreement providing for, among other
things, the purchase of Equipment Notes by the Trustee on behalf of the relevant
Trust; and "Participation Agreements" means all of such Agreements.
Paying Agent means, with respect to the Certificates of any series, the
paying agent maintained and appointed for the Certificates of such series
pursuant to Section 7.12.
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 after the date of acquisition thereof or such lesser time as is required
for the distribution of any Special Payments on a Special Distribution Date.
Person means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, trustee,
unincorporated organization, or government or any agency or political
subdivision thereof.
Pool Balance means, with respect to the Certificates of any series as of
any date, (i) the original aggregate face amount of the Certificates of any
series less (ii) the aggregate amount of all payments made in respect of such
Certificates other than payments made in respect of interest or premium thereon
or reimbursement of any costs or expenses incurred in connection therewith. The
Pool Balance as of any Regular Distribution Date or Special Distribution Date
shall be computed after giving effect to the payment of principal, if any, on
the Equipment Notes or other Trust Property held in the Trust and the
distribution thereof to be made on such date.
Pool Factor means, with respect to any series of Certificates as of any
date, the quotient (rounded to the seventh decimal place) computed by dividing
(i) the Pool Balance of such series as at such date by (ii) the original
aggregate face amount of the Certificates of such series. The Pool Factor as of
any Regular Distribution Date or Special Distribution Date shall be computed
after giving effect to the payment of principal, if any, on the Equipment Notes
or other Trust Property held in the Trust and the distribution thereof to be
made on such Distribution Date.
Postponed Notes means, with respect to any Trust or the related series of
Certificates, the Equipment Notes to be held in such Trust as to which a
Postponement Notice shall have been delivered pursuant to Section 2.02(b).
Postponement Notice means, with respect to any Trust or the related series
of Certificates, an Officer's Certificate of the Company (1) requesting that the
Trustee temporarily postpone purchase of the related Equipment Notes to a date
later than the Issuance Date of such series of Certificates, (2) identifying the
amount of the purchase price of each such Equipment Note and the aggregate
purchase price for all such Equipment Notes, (3) setting forth the reasons for
such postponement and (4) with respect to each such Equipment 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 Equipment Note (subject to subsequent change from time
to time in accordance with the relevant Note Purchase Agreement or Participation
Agreement), or (b) indicating that such new Transfer Date (which
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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
(subject to subsequent change from time to time in accordance with the relevant
Note Purchase Agreement or Participation Agreement).
Record Date means, with respect to any Trust or the related series of
Certificates, (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 means, each with respect to the Certificates of any
series, the register maintained and the registrar appointed pursuant to Sections
3.04 and 7.12.
Regular Distribution Date means, with respect to distributions of Scheduled
Payments in respect of any series of Certificates, each date designated as such
in this Agreement, until payment of all the Scheduled Payments to be made under
the Equipment Notes held in the Trust have been made.
Request means a request by the Company setting forth the subject matter of
the request accompanied by an Officer's Certificate and an Opinion of Counsel as
provided in Section 1.02 of this Basic Agreement.
Responsible Officer means, in the case of the Company, the President or any
other officer with the authority of at least a vice president; and, in the case
of any Trustee, any Indenture Trustee and any Owner Trustee, any officer in the
Corporate Trust Department of the Trustee, Indenture Trustee or Owner Trustee or
any other officer 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 his knowledge of and familiarity
with a particular subject.
Responsible Party means, with respect to the Certificates of any series,
the person designated as such in the related Trust Supplement.
Scheduled Payment means, with respect to any Equipment Note, any payment of
principal or interest on such Equipment Note (other than any such payment which
is not in fact received by the Trustee within five days of the date on which
such payment is scheduled to be made; PROVIDED, HOWEVER, that any payment of
principal, premium, if any, or interest resulting from the redemption or
purchase of any Equipment Note shall not constitute a Scheduled Payment.
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.
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Special Distribution Date means, with respect to the Certificates of any
series, each date on which a Special Payment is to be distributed as specified
in this Agreement.
Special Payment means (i) any payment (other than a Scheduled Payment) in
respect of, or any proceeds of, any Equipment Note or Trust Indenture Estate (as
defined in each Indenture), (ii) the amounts required to be distributed pursuant
to the last paragraph of Section 2.02(b) (iii) the amounts required to be
distributed pursuant to the penultimate paragraph of Section 2.02(b), (iv) any
payment in respect of proceeds received from the sale of all or part of the
Equipment Notes by the Trustee, (v) any payment in respect of amounts paid in
respect of the Equipment Notes following an Indenture Event of Default (other
than Scheduled Payments), or (vi) any payment in respect of amounts paid by the
applicable Owner Trustee to the Trustee for the purchase or redemption of
Equipment Notes.
Special Payments Account means, with respect to the Certificates of any
series, the account or accounts created and maintained for such series pursuant
to Section 4.01(b) and the related Trust Supplement.
Specified Investments means, with respect to any Trust, unless otherwise
specified in the related Trust Supplement, (i) obligations of, or guaranteed by,
the United States Government or agencies thereof, (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 $100,000,000 which
banks or their holding companies have a rating of A or its equivalent by Xxxxx'x
Investors Service, Inc. or Standard & Poor's Ratings Services; PROVIDED,
HOWEVER, that the aggregate amount at 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 clause
(iii) above or any subsidiary thereof and (v) repurchase agreements with any
financial institution having combined capital and surplus of at least
$100,000,000 with any of the obligations described in clauses (i) through (iv)
above 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.
Substitute Equipment means, with respect to any Trust, any Equipment of a
type specified in this Agreement and, at the election of the Company,
substituted prior to the applicable Cut-off Date, if any, pursuant to the terms
of this Agreement.
Transfer Date has the meaning assigned to that term or any of the terms
"Delivery Date", "Funding Date" or "Closing Date" in a Participation Agreement,
and in any event refers to any such date as it may be changed from time to time
in accordance with the terms of such Participation Agreement.
Trust means, with respect to the Certificates of any series, the trust
under this Agreement.
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Trustee means Bank One, National Association, or its successor in interest,
and any successor or other trustee appointed as provided herein.
Trust Indenture Act except as otherwise provided in Section 9.06, means,
with respect to any particular Trust, the United States Trust Indenture Act of
1939, as in force at the date as of which the related Trust Supplement was
executed.
Trust Property means, with respect to any Trust, (i) the Equipment Notes
held as the property of such Trust, all monies at any time paid thereon and all
monies due and to become due thereunder and (ii) funds from time to time
deposited in the related Escrow Account, the 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 Equipment 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.
Section 1.02 COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application or
request by the Company, any Owner Trustee or any Indenture 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, the Company, such
Owner Trustee or such Indenture Trustee, as the case may be, shall furnish to
the Trustee (i) an Officer's Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Basic Agreement
or this Agreement relating to the proposed action have been complied with and
(ii) an Opinion of Counsel stating that all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by
any provision of this Basic Agreement or 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 8.04(d)) or any Trust Supplement 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
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(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03 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.
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 1.04 DIRECTIONS OF CERTIFICATEHOLDERS.
(a) Any direction, consent, request, demand, authorization,
notice, waiver or other action provided by this Agreement in respect of the
Certificates of any series to be given or taken by Certificateholders (a
"Direction") 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, when it is
hereby expressly required pursuant to this Agreement, to the Company or any
Indenture 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 or proxy shall be sufficient for any purpose of this Trust
Agreement and conclusive in favor of the Trustee, the Company and the
related Indenture Trustee, if made in the manner provided in this Section
1.04.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public
or other officer of any jurisdiction authorized to take acknowledgments of
deeds or administer oaths that the Person executing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness
to such execution sworn to before any such notary or such other officer,
and where such execution is by an officer of a corporation or association
or a member of a partnership, on behalf of such corporation, association or
partnership, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same,
may also be proved in any other reasonable manner which the 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
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under this Agreement, Certificates owned by the Company or any Affiliate
thereof 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 which 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, and (ii)
if any amount of Certificates of any series so owned by any such Person
have been pledged in good faith, such Certificates shall not be disregarded
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 Company or any Affiliate thereof.
(d) The 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 Direction. Notwithstanding Section 316(c) of the Trust Indenture
Act, such record date shall be the record date specified in such Officer's
Certificate, which shall be a date not more than 30 days prior to the first
solicitation of Certificateholders of the applicable series in connection
therewith. If such a record date is fixed, such Direction 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 Direction,
and for that purpose the Outstanding Certificates shall be computed as of
such record date; provided, however, that no such Direction 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 such record date.
(e) Any Direction by the Holder of any Certificate shall bind
the Holder of every Certificate issued upon the transfer thereof or in
exchange therefor or in lieu thereof, whether or not notation of such
Direction is made upon such Certificate.
(f) Except as otherwise provided in Section 1.04(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 TRUST PROPERTY
Section 2.01 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
(a) The aggregate principal amount of Certificates which 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
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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, except as may be contained in any Intercreditor Agreement, 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 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 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);
(3) any limit upon the aggregate principal amount the
Certificates of such series which 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 3.03, 3.04 and 3.06);
(4) the Cut-off Date with respect to the Certificates of
such series;
(5) the Regular Distribution Dates applicable to the
Certificates of such series;
(6) the Special Distribution Dates applicable to the
Certificates of such series;
(7) if other than as provided in Section 7.12(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 3.02, the
denominations in which the Certificates of such series shall be
issuable;
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(9) if other than United States dollars, the currency or
currencies (including currency units) in which the Certificates
of such series shall be denominated;
(10) 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 (or,
in the case of any Certificates denominated in a currency other
than United States dollars and if other than as provided in
Section 3.05, whether and the circumstances under which
beneficial owners of interests in such Certificates in permanent
global form may exchange such interests for Certificates of such
series and of like tenor of any authorized form and
denomination);
(11) a description of the Equipment Notes to be acquired and
held in the related Trust and of the related Equipment and Note
Documents;
(12) provisions with respect to the terms for which the
definitions set forth in Article I hereof or the terms of Section
11.01 hereof permit or require further specification in the
related Trust Supplement;
(13) any restrictions (including legends) in respect of
ERISA;
(14) whether there will be a deposit agreement or other
comparable arrangement prior to the delivery of one or more
Equipment and, if so, any terms appropriate thereto; and
(15) 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 of the Certificates of
such series which may be required or advisable under United
States laws or regulations or advisable in connection with the
marketing of Certificates of the series.
(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 Company upon request of the Company and
upon satisfaction or waiver of any conditions precedent set forth in such
Trust Supplement.
Section 2.02 ACQUISITION OF EQUIPMENT 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 Participation Agreements each
in the form delivered to the Trustee by the Company and shall, subject to
the respective terms thereof, perform its obligations under such
Participation Agreements. The Trustee shall issue and sell such
Certificates, in authorized denominations and in such Fractional Undivided
Interests, so as to result in
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the receipt of consideration in an amount equal to the aggregate purchase
price of the Equipment Notes contemplated to be purchased by the Trustee
under the related Participation Agreements and, concurrently therewith, the
Trustee shall purchase, pursuant to the terms and conditions of the
Participation Agreements such Equipment Notes at an aggregate purchase
price equal to the amount of such consideration so received. Except as
provided in Sections 3.03, 3.04 and 3.06 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 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 part
of the related Trust an amount equal to the purchase price of such
Postponed Notes (the "Escrowed Funds"). The portion of the Escrowed Funds
so deposited with respect to any particular Postponed Notes shall be
invested by the Trustee at the written direction and risk of, and for the
benefit of, the Company in Specified Investments (i) maturing no later than
any scheduled Transfer Date relating to such Postponed Notes or (ii) if no
such Transfer Date has been scheduled, maturing on the next Business Day,
or (iii) if the Company has given notice to the Trustee that such Postponed
Notes will not be issued, maturing on 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 Company on one or more
occasions and the satisfaction or waiver 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
purchase price shall equal the principal amount of such Postponed Notes.
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 written
direction and risk of, and for the benefit of, the Responsible Party in
Specified Investments maturing as provided in the preceding paragraph.
Unless an Indenture Event of Default or an Event of Default has occurred
and is continuing, any earnings on Specified Investments received from time to
time by the Trustee shall be promptly distributed to the Responsible Party. The
Company shall pay, or cause the Responsible Party to pay, to the Trustee for
deposit to the relevant Escrow Account an amount equal to any losses on such
Specified Investments as incurred. On the Initial Regular Distribution Date in
respect of the Certificates of any series, the Company will pay, or cause the
Responsible Party to pay (in immediately available funds), to the Trustee an
amount equal to the interest that would have accrued on any Postponed Notes with
respect to such Certificates, if any, purchased after the Issuance Date if such
Postponed Notes had been purchased on the
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Issuance Date, from the Issuance Date to, but not including, the date of the
purchase of such Postponed Notes by the Trustee.
If, in respect of the Certificates of any series, the Company notifies the
Trustee prior to the Cut-off Date that any Postponed Notes will not be issued on
or prior to the Cut-off Date for any reason, on the next Special Distribution
Date for such Certificates occurring not less than 15 days following the date of
such notice, (i) the Company shall pay, or cause the Responsible Party to 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 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 that amount of Escrowed Funds that would have been used to
purchase the Postponed Notes designated in such notice and the amount paid by
the Company or the Responsible Party 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 not less than 15 days following such Cut-off Date
(i) the Company shall pay, or cause the Responsible Party to 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
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 such unused Escrowed Funds and the amount paid
by the Company or the Responsible Party pursuant to the immediately preceding
clause (i) to such Special Payments Account for distribution as a Special
Payment in accordance with the provisions hereof.
Section 2.03 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 Trust Property to be acquired pursuant to Section 2.02 hereof and
the related Participation Agreements and shall declare that the Trustee holds
and will hold such right, title and interest 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 the acceptance of each Certificate of such series
issued to it under this Agreement, each initial Holder of such series as grantor
of such Trust shall thereby join in the creation and declaration of such Trust.
Section 2.04 LIMITATION OF POWERS. Each Trust shall be constituted solely
for the purpose of making the investment in the Equipment Notes provided for in
the related Trust Supplement, and, except as set forth herein, 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
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restriction, acquiring any Equipment (as defined in the respective Indentures),
by bidding such Equipment Notes or otherwise, or taking any action with respect
to any such Equipment once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01 FORM, DENOMINATION AND EXECUTION OF CERTIFICATES. The
Certificates of each series shall be issued in fully registered form 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 placed 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 determined by the Trustee or the officers executing such
Certificates, as evidenced by the Trustee's or respective officers' execution of
the Certificates.
Except as provided in Section 3.05, 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 the Certificates may be listed,
all as determined by the officers executing such Certificates, as evidenced by
their 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 different denomination.
The Certificates of such 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.
Section 3.02 AUTHENTICATION OF CERTIFICATES.
(a) On the Issuance Date, the Trustee shall duly execute,
authenticate and deliver Certificates of each series in authorized
denominations equalling in the aggregate the aggregate principal amount of
the Equipment Notes that may be purchased by the Trustee pursuant to the
related Participation Agreements, and evidencing the entire ownership of
the related Trust. Thereafter, the Trustee shall duly execute, authenticate
and deliver the Certificates of such series as herein provided.
(b) 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
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executed by 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 the date
of their authentication.
Section 3.03 TEMPORARY CERTIFICATES. Until definitive Certificates are
ready for delivery, the Trustee shall execute, authenticate and deliver
temporary Certificates of each series. Temporary Certificates of each series
shall be substantially in the form of definitive Certificates of such series but
may have insertions, substitutions, omissions and other variations determined to
be appropriate by the officers executing the temporary Certificates of such
series, as evidenced by their 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 office or agency of the Trustee
designated for such purpose pursuant to Section 7.12, without charge to the
Certificateholder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute, authenticate and deliver in exchange
therefor a like face amount of definitive Certificates of like series, in
authorized denominations and of a like Fractional Undivided Interest. Until so
exchanged, such temporary Certificates shall be entitled to the same benefits
under this Agreement as definitive Certificates.
Section 3.04 TRANSFER AND EXCHANGE. The Trustee shall cause to be kept at
the office or agency to be maintained by it in accordance with the provisions of
Section 7.12 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 such Certificates of each series and transfers and exchanges of such
Certificates as herein provided.
All Certificates issued upon any registration of transfer or exchange of
Certificates of any series shall be valid obligations of the applicable Trust,
evidencing the same interest therein, and entitled to the same benefits under
this Agreement, as the Certificates of such series surrendered upon such
registration of transfer or exchange.
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 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
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and the Registrar duly executed by the Certificateholder thereof or its attorney
duly authorized in writing.
No service charge shall be made to a Certificateholder for any registration
of transfer or exchange of Certificates, but the 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 canceled and
subsequently destroyed by the Trustee.
Section 3.05 BOOK-ENTRY AND DEFINITIVE CERTIFICATES.
(a) The Certificates of any series may 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 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,
unless and until definitive, fully registered Certificates (the "Definitive
Certificates") have been issued pursuant to Subsection (d) below:
(i) the provisions of this Section 3.05 shall be in full force
and effect;
(ii) the Company, the Paying Agent, the Registrar and the Trustee
may deal with the Clearing Agency Participants for all purposes (including
the making of distributions on the Certificates) as the authorized
representatives of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.05
conflict with any other provisions of this Agreement (other than the
provisions of any Trust Supplement expressly amending this Section 3.05 as
permitted by this Basic Agreement), the provisions of this Section 3.05
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
distributions of principal, interest and premium, if any, on the
Certificates to such Clearing Agency Participants; and
(v) 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 Clearing
Agency Participants owning or representing, respectively, such required
percentage of the
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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) 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.
(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 on
such Record Date.
(d) If with respect to the Certificates of any series (i) the
Company advises the Trustee in writing that the Clearing Agency is no
longer willing or able to discharge properly its responsibilities and the
Trustee or the Company is unable to locate a qualified successor, (ii) the
Company, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after
the occurrence of an Event of Default, Certificate Owners of Book-Entry
Certificates of such series evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the related Trust, by
Act of such Certificate Owners delivered to the Company and the Trustee,
advise the 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 Participants 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 any 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 registration instructions from the Clearing Agency
Participants for registration of Definitive Certificates in the names of
Certificate Owners of such series, the Trustee shall issue and deliver the
Definitive Certificates of such series in accordance with the instructions
of the Clearing Agency. Neither the 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 issuance of Definitive
Certificates of such series, the Trustee shall recognize the Person in
whose name the Definitive Certificates are registered in the Register as
Certificateholders hereunder. Neither the Company nor the Trustee shall be
liable if the Trustee or the 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.
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(f) The provisions of this Section 3.05 may be made inapplicable to any
series or may be amended with respect to any series in the related Trust
Supplement.
Section 3.06 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 destroyed, lost or stolen Certificate has been acquired by a protected
purchaser, and PROVIDED, HOWEVER, that the requirements of Section 8-405 of the
Uniform Commercial Code in effect in any applicable jurisdiction are met, 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 and bearing a number not contemporaneously outstanding.
In connection with the issuance of any new Certificate under this
Section 3.06, 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 3.06 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.
The provisions of this Section 3.06 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.07 PERSONS DEEMED OWNERS. Prior to due presentment of a
Certificate for registration of transfer, the Trustee, the Registrar and any
Paying Agent may treat the Person in whose name any Certificate is registered
(as of the day of determination) as the owner of such Certificate for the
purpose of receiving distributions pursuant to Article IV and for all other
purposes whatsoever, and none of the Trustee, the Registrar or any Paying Agent
shall be affected by any notice to the contrary.
Section 3.08 CANCELLATION. All Certificates surrendered for payment or
transfer or exchange shall, if surrendered to the Trustee or any agent of the
Trustee other than the Registrar, be delivered to the Registrar for cancellation
and shall promptly be canceled by it. No Certificates shall be authenticated in
lieu of or in exchange for any Certificates canceled as provided in this Section
3.08, except as expressly permitted by this Agreement. All canceled Certificates
held by the Registrar shall be destroyed and a certification of their
destruction delivered to the Trustee.
Section 3.09 LIMITATION OF LIABILITY FOR PAYMENTS. All payments and
distributions made to Certificateholders of any series in respect of the
Certificates of such series 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
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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
for any payment or distribution due to such Certificateholder pursuant to the
terms of this Agreement and that it will not have any recourse to the Company,
the Trustee, the Indenture Trustees, the Owner Trustees or the Owner
Participants.
The Company is a party to this Agreement solely for purposes of meeting
the requirements of the Trust Indenture Act, and therefore shall not have any
right, obligation or liability hereunder (except as otherwise expressly provided
herein).
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01 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 such 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 to the
Trustee (under an Intercreditor Agreement, if applicable) with respect
to the Certificates of such series, the Trustee, upon receipt thereof,
shall immediately deposit the aggregate amount of such Scheduled
Payment in such 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 4.04. The Trustee shall hold the Special Payments 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 one or more Special are made to the Trustee
(under an Intercreditor Agreement, if applicable) with respect to the
Certificates of such series, the Trustee, upon receipt thereof, shall
immediately deposit the aggregate amount of such Special Payments in
such Special Payments Account.
(c) The Trustee shall present to the related Indenture Trustee of
each Equipment Note such Equipment Note on the date of its stated final
maturity or, in the case of any Equipment Note which is to be redeemed
in whole pursuant to the related Indenture, on the applicable
redemption date under such Indenture.
Section 4.02 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 all or any part of the Scheduled Payments due on the
Equipment Notes held in the related Trust on such date, the Trustee
shall distribute out of the applicable Certificate Account the entire
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amount deposited therein pursuant to Section 4.01(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 11.01 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
Fractional Undivided Interest in the Trust held by such
Certificateholder) of the total amount in the applicable Certificate
Account, except that, with respect to Certificates registered on the
Record Date in the name of a Clearing Agency (or its nominee), such
distribution shall be made by wire transfer in immediately available
funds to the account designated by such Clearing Agency (or such
nominee).
(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 any Special Payments due on the
Equipment Notes held in the related Trust or realized upon the sale of
such Equipment Notes, the Trustee shall distribute out of the
applicable Special Payments Account the entire amount of such
applicable Special Payment deposited therein pursuant to Section
4.01(b). 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 11.01 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 Fractional Undivided Interest in the related
Trust held by such Certificateholder) of the total amount in the
applicable Special Payments Account on account of such Special Payment,
except that, with respect to Certificates registered on the Record Date
in the name of a Clearing Agency (or its nominee), such distribution
shall be made by wire transfer in immediately available funds to the
account designated by such Clearing Agency (or such nominee).
(c) The Trustee shall, at the expense of the Company, cause notice
of each Special Payment with respect to a series of Certificates to be
mailed to each Certificateholder of such series at his address as it
appears in the Register. In the event of redemption or purchase of
Equipment Notes held in the related Trust, such notice shall be mailed
not less than 15 days prior to the Special Distribution Date for the
Special Payment resulting from such redemption or purchase, which
Special Distribution Date shall be the date of such redemption or
purchase. In the event that the Trustee receives a notice from the
Company that Postponed Notes will not be purchased by the Trustee
pursuant to Section 2.02, such notice of Special Payment shall be
mailed as soon as practicable after receipt of such notice from the
Company and shall state the Special Distribution Date for such Special
Payment, which shall occur 15 days after the date of such notice of
Special Payment or (if such 15th day is not practicable) as soon as
practicable thereafter. In the event that any Special Payment is to be
made pursuant to the last paragraph of Section 2.02(b) hereof, there
shall be mailed on the Cut-off Date (or, if such mailing on the Cutoff
Date is not practicable, as soon as practicable after the Cut-off
Date), notice of such Special Payment stating the Special Distribution
Date for such Special Payment, which shall occur 15 days after the date
of such notice of such Special Payment (or, if such 15th day is not
practicable, as soon as practicable thereafter). 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,
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stating the Special Distribution Date for such Special Payment which
shall occur not less than 15 days after the date of such notice and as
soon as practicable thereafter. Notices mailed by the Trustee shall
set forth:
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 11.01),
(ii) the amount of the Special Payment (taking into account any
payment to be made by the Company pursuant to Section 2.02(b)) for each
$1,000 face amount Certificate 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 an
Equipment 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 of the Equipment Notes held in any Trust is canceled,
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 4.03 STATEMENTS TO CERTIFICATEHOLDERS.
(a) On each Regular Distribution Date and Special Distribution
Date, the Trustee will include with each distribution of a Scheduled
Payment or Special Payment, as the case may be, to Certificateholders
of the related series a statement setting forth the information
provided below. Such statement shall set forth (per $1,000 aggregate
principal amount of Certificate as to (i) and (ii) below) the following
information:
(i) the amount of such distribution hereunder allocable to
principal and the amount allocable to premium, if any;
(ii) the amount of such distribution hereunder allocable to
interest; and
(iii) the Pool Balance and the Pool Factor of the related Trust.
With respect to the Certificates registered in the name of a
Clearing Agency or its nominee, on the Record Date prior to each
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 the Clearing Agency Participants
reflected on the Clearing Agency's books as holding interests in the
Certificates on such Record Date. On each Distribution Date, the
applicable Trustee will mail to each such Clearing Agency Participant
the statement described above and will make available additional copies
as
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requested by such Clearing Agency Participant for forwarding to
holders of interests in the Certificates.
(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) above 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 which
a Certificateholder shall reasonably request as necessary for the
purpose of such Certificateholder's preparation of its federal income
tax returns. With respect to Certificates registered in the name of a
Clearing Agency or its nominee, such statement and such other items
shall be prepared on the basis of information supplied to the Trustee
by the Clearing Agency Participants and shall be delivered by the
Trustee to such Clearing Agency Participants to be available for
forwarding by such Clearing Agency Participants to the holders of
interests in the Certificates in the manner described in Section
4.03(a).
Section 4.04 INVESTMENT OF SPECIAL PAYMENT MONEYS. Any money received
by the Trustee pursuant to Section 4.01(b) representing a Special Payment which
is not distributed on the date received shall, to the extent practicable, be
invested in Permitted Investments by the Trustee pending distribution of such
Special Payment pursuant to 4.02. Any investment made pursuant to this Section
4.04 shall be in such Permitted Investments having maturities not later than the
date that such moneys are required to be used to make the payment required under
Section 4.02 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 4.04,
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 COMPANY
Section 5.01 MAINTENANCE OF CORPORATE EXISTENCE. The 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 and
franchises, except as otherwise specifically permitted in Section 5.02;
PROVIDED, HOWEVER, that the Company shall not be required to preserve any right
or franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
Section 5.02 CONSOLIDATION, MERGER, ETC. The Company shall not
consolidate with or merge into any other Person or convey, transfer or lease
substantially all of its assets as an entirety to any Person unless:
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(a) the Person formed by such consolidation or into which the
Company is merged or the Person that acquires by conveyance, transfer
or lease substantially all of the assets of the Company as an entirety
shall be organized and validly existing under the laws of the United
States of America or any state thereof or the District of Columbia; and
(b) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer
or lease substantially all of the assets of the Company as an entirety
shall execute and deliver to the Trustee applicable to the Certificates
of each series a duly authorized, valid, binding and enforceable
agreement in form and substance reasonably satisfactory to the Trustee
containing an assumption by such successor corporation or Person of the
due and punctual performance and observance of each covenant and
condition of the Note Documents and of this Agreement applicable to the
Certificates of each series to be performed or observed by the Company.
The Company shall have delivered to the Trustee an Officer's Certificate of the
Company and an Opinion or Opinions of Counsel of the Company each stating that
such consolidation, merger, conveyance, transfer or lease and the assumption
agreement mentioned in clause (b) above comply with this Section 5.02 and that
all conditions precedent herein provided for relating to such transaction have
been complied with.
Upon any consolidation or merger, or any conveyance, transfer or lease
of substantially all of the assets of the Company as an entirety in accordance
with this Section 5.02, the successor or Person formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Agreement applicable to the Certificates of
each series with the same effect as if such successor or Person had been named
as the Company herein. No such conveyance, transfer or lease of substantially
all of the assets of the Company as an entirety shall have the effect of
releasing any successor or Person which shall have become such in the manner
prescribed in this Section 5.02 from its liability in respect of this Agreement
and any Note Document applicable to the Certificates of such series to which it
is a party.
ARTICLE VI
DEFAULT
Section 6.01 EVENTS OF DEFAULT; EXERCISE OF REMEDIES. Upon the
occurrence and during the continuation of any Indenture Event of Default under
any Indenture, the Trustee may direct the exercise of remedies or take other
action as provided in the relevant Indenture to the extent that it may do so as
the holder of the Equipment Notes issued under such Indenture and held in the
related Trust.
Section 6.02 INCIDENTS OF SALE OF EQUIPMENT NOTES. Upon any sale of all
or any part of the Equipment Notes held in the 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:
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(a) CERTIFICATEHOLDERS AND TRUSTEE MAY PURCHASE EQUIPMENT NOTES.
Any Certificateholder, the Trustee in its individual or any other
capacity or any other Person may bid for and purchase any of the
Equipment Notes held in the Trust, and upon compliance with the terms
of sale, may hold, retain, possess and dispose of such Equipment Notes
in their own absolute right without further accountability.
(b) RECEIPT OF TRUSTEE SHALL DISCHARGE PURCHASER. The receipt of
the Trustee 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.
(c) 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 4.02.
Section 6.03 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 Equipment Note held in the related Trust, or
if there shall be any failure to pay Rent (as defined in the relevant Lease)
under any Lease when due and payable, then the Trustee, in its own name and as
trustee of an express trust, as holder of such Equipment Notes, to the extent
permitted by and in accordance with the terms of any related Note Documents
(subject to rights of the applicable Owner Trustee or Owner Participant to cure
any such failure to pay principal of, premium, if any, or interest on any
Equipment Note or to pay Rent under any Lease in accordance with the applicable
Indenture), shall be entitled and empowered to institute any suits, actions or
proceedings at law, in equity or otherwise, for the collection of the sums so
due and unpaid on such Equipment Notes or under such Lease and may prosecute any
such claim or proceeding to judgment or final decree with respect to the whole
amount of any such sums so due and unpaid.
Section 6.04 CONTROL BY CERTIFICATEHOLDERS. Subject to Section 6.03,
the Certificateholders holding Certificates of a series 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 Equipment
Notes held in the related Trust; PROVIDED, HOWEVER, that
(a) such Direction shall not in the opinion of the Trustee be in
conflict with any rule of law or with this Agreement and would not
involve the Trustee in personal liability or expense,
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(b) 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, and
(c) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such Direction.
Section 6.05 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 Trust may on behalf of all of the
Certificateholders waive any past Event of Default hereunder and its
consequences, except a default:
(a) in the deposit of any Scheduled Payment or Special Payment
under Section 4.01 or in the distribution of any payment under Section
4.02 on the Certificates of a series, or
(b) in the payment of the principal of (premium, if any) or
interest on the Equipment Notes held in the related Trust, or
(c) in respect of a covenant or provision hereof which under
Article IX hereof cannot be modified or amended without the consent of
each Certificateholder holding an Outstanding Certificate of a series
affected thereby.
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 and any direction given by the
Trustee on behalf of the Certificateholders of such series to the relevant
Indenture 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
Equipment Notes issued under the relevant Indenture to waive the corresponding
Indenture Event of Default.
Section 6.06 RIGHT OF CERTIFICATEHOLDERS TO RECEIVE PAYMENTS NOT TO BE
IMPAIRED. Anything in this Agreement to the contrary notwithstanding, including,
without limitation, Section 6.07 hereof, the right of any Certificateholder to
receive distributions of payments required pursuant to Section 4.02 hereof 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 6.07 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:
(a) such Certificateholder previously shall have given written
notice to the Trustee of a continuing Event of Default;
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(b) Certificateholders holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not less than 25%
of the related Trust shall 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 7.03(e);
(c) 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
(d) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by
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 whatsoever
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 Equipment Notes,
(ii) obtain or seek to obtain priority over or preference with respect 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 6.08 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 6.09 UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Agreement, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, a court may require any
party litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; PROVIDED, HOWEVER, that neither
this Section 6.09 nor the Trust Indenture Act shall be deemed to authorize any
court to require such an undertaking or to make such an assessment in any suit
instituted by the Company.
ARTICLE VII
THE TRUSTEE
Section 7.01 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default in
respect of a Trust, the Trustee undertakes to perform such duties in
respect of such Trust as are specifically set forth in this Agreement,
and no implied covenants or obligations shall be read into this
Agreement against the Trustee.
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(b) In case an Event of Default in respect of a Trust has occurred
and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Agreement in respect of such Trust, and use
the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
(c) No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a)of this Section 7.01; and
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless
it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts.
(d) Whether or not herein expressly so provided, every provision
of this Agreement relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the
provisions of this
Section 7.02 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 known to the Trustee, the Trustee shall transmit by
mail to the Company, any related Owner Trustees, any related Owner Participants,
the related Indenture 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, HOWEVER, that, except in the case of
a default in the payment of the principal, premium, if any, or interest on any
Equipment 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 shall
determine that the withholding of such notice is in the interests of the
Certificateholders of the related series. For the purpose of this Section 7.02
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 7.03 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 Company mentioned herein shall
be sufficiently evidenced by a Request;
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(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
Company, any related Owner Trustee or any related Indenture Trustee;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement at the 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 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; and
(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.
Section 7.04 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 7.15, the Trustee makes no representations as to the validity
or sufficiency of this Basic Agreement, any Equipment Notes, the Certificates of
any series, any Trust Supplement or any Note Documents, except that the Trustee
hereby represents and warrants that this Basic Agreement has been, and each
Trust Supplement, each Certificate and each Participation Agreement of, or
relating to, each series will
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be executed and delivered by one of its officers who is duly authorized to
execute and deliver such document on its behalf.
Section 7.05 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,
if applicable, may otherwise deal with the Company, any Owner Trustees or the
Indenture Trustees with the same rights it would have if it were not Trustee,
Paying Agent, Registrar or such other agent.
Section 7.06 MONEY HELD IN TRUST. Money held by the Trustee or the
Paying Agent in trust under this Agreement 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 7.07 COMPENSATION AND REIMBURSEMENT. The Company agrees:
(a) 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 in
regard to the compensation of a trustee of an express trust); and
(b) 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 and 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 7.15; and
(c) to indemnify, or cause to be indemnified, the Trustee with
respect to the Certificates of any series, pursuant to the particular
sections of the Participation Agreements specified in the related Trust
Supplement.
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 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. The Trustee
shall notify the Company of any claim for any tax for which it may seek
reimbursement. If the Trustee reimburses itself from the Trust Property of such
Trust for any such tax, it will mail a brief report within 30 days setting forth
the amount of such tax and the circumstances thereof to all Certificateholders
of such series as their names and addresses appear in the Register.
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Section 7.08 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 a combined capital and surplus in excess of
$5,000,000 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 law or to the requirements of federal, state,
territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section 7.08 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 so published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.08 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 7.09.
Section 7.09 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 7.10.
(b) The Trustee may resign at any time as Trustee of any or all
Trusts by giving prior written notice thereof to the Company, the
Authorized Agents, the related Owner Trustees and the related Indenture
Trustees. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Company, the related Owner Trustees and
the Trustee within 30 days after the giving of such notice of
resignation, 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 by Direction of the
Certificateholders of the related series holding Certificates
evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in such Trust delivered to the Trustee and to the
Company, the related Owner Trustees and the related Indenture 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, if applicable, after written request therefor
by the Company or by any Certificateholder who has been a bona
fide holder of Certificates for at least six months; or
(2) the Trustee shall cease to be eligible under Section 7.08
and shall fail to resign after written request therefor by the
Company or by any such Certificateholder; or
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(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; then, in any case, (i) the Company may remove the
Trustee or (ii) any Certificateholder of the related series who
has been a bona fide holder of Certificates for at least six
months may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the removal of
the 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 defined below) in respect of any
Trust which has been or is likely to be asserted, the Trustee shall
promptly notify the Company and shall, within 30 days of such
notification, resign as Trustee of such Trust hereunder unless within
such 30-day period the Trustee shall have received notice that the
Company has agreed to pay such tax. The 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 of America. A tax shall not be an Avoidable Tax in
respect of any Trust if the 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 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
Direction 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 Company, the related Owner Trustees, the related
Indenture Trustee and the retiring Trustee, then the successor Trustee
of such Trust so appointed shall, with the approval of the Company of
such appointment, which approval shall not be unreasonably withheld,
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, the resigning Trustee or any Certificateholder
who has been a bona fide holder of Certificates 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
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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.
Section 7.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every successor
Trustee appointed hereunder shall execute and deliver to the 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 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 Trust Property held by such retiring
Trustee in respect of such Trusts hereunder, subject nevertheless to its lien,
if any, provided for in Section 7.07. Upon request of any such successor
Trustee, the 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 Company, the predecessor Trustee and each successor Trustee
with respect to any Trust shall execute and deliver a supplemental agreement
hereto which 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
constitute such Trustees as co-Trustees of the same Trust and that each such
Trustee shall be Trustee of separate Trusts.
No institution shall accept its appointment as a Trustee hereunder
unless at the time of such acceptance such institution shall be qualified and
eligible under this Article VII.
Section 7.11 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, HOWEVER, that such corporation shall be otherwise qualified and
eligible under this Article VII, 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
to such 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.
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Section 7.12 MAINTENANCE OF AGENCIES.
(a) With respect to each series of Certificates, there shall at
all times be maintained an office or agency in the location set forth
in Section 12.04 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 this Agreement may be served;
PROVIDED, HOWEVER, that, if it shall be necessary that the Trustee
maintain an office or agency in another location with respect to the
Certificates of any series (e.g., the Certificates of such series shall
be represented by Definitive Certificates and shall be listed on a
national securities exchange), the Trustee will make all reasonable
efforts to establish such an office or agency. 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 Company, any
Owner Trustees, the Indenture Trustees (in the case of any Owner
Trustee or Indenture Trustee, at its address specified in the Note
Documents or such other address as may be notified to the Trustee) 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 having a combined capital and surplus in
excess of $5,000,000, 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 3.04, Registrar hereunder with respect to the
Certificates of each series. Each Registrar shall furnish to the
Trustee, at stated intervals of not more than six months, and at such
other times as the Trustee 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, if such successor corporation is
otherwise eligible under this Section 7.12, 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 Company, any related Owner
Trustees and the related Indenture Trustees. The 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
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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 7.12 (when, in either case, no other Authorized Agent
performing the functions of such Authorized Agent shall have been
appointed), the Company shall promptly appoint one or more qualified
successor Authorized Agents, reasonably satisfactory to the Trustee, to
perform the functions of the Authorized Agent which has resigned or
whose agency has been terminated or who shall have ceased to be
eligible under this Section 7.12. The Company shall give written notice
of any such appointment made by it to the Trustee, any related Owner
Trustees and the related Indenture 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 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 7.13 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 7.13. 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 7.14 REGISTRATION OF EQUIPMENT NOTES IN TRUSTEE'S NAME. The
Trustee agrees that all Equipment Notes to be purchased by any 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 in trust
for the benefit of the Certificateholders of such series, or, if not so held,
the Trustee or its nominee shall be reflected as the owner of such Equipment
Notes or Permitted Investments, as the case may be, in the register of the
issuer of such Equipment Notes or Permitted Investments, as the case may be.
Section 7.15 REPRESENTATIONS AND WARRANTIES OF TRUSTEE. The Trustee
hereby represents and warrants that:
(a) the Trustee is a national banking association organized and
validly existing in good standing under the laws of the United States
of America;
(b) the Trustee has full power, authority and legal right to
execute, deliver and perform this Agreement and any Participation
Agreement and has taken all necessary
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action to authorize the execution, delivery and performance by it
of this Agreement and any Participation Agreement;
(c) the execution, delivery and performance by the Trustee of this
Agreement and any Participation Agreement (i) will not violate any
provision of any United States federal law or the law of the state of
the United States where it is located 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, (ii) will not violate any provision of the
articles of association or by-laws of the Trustee, and (iii) will not
violate any provision of, or constitute, with or without notice or
lapse of time, a default under, or result in the creation or imposition
of any lien on any properties included in the Trust Property pursuant
to the provisions of any mortgage, indenture, contract, agreement or
other undertaking to which it is a party, which violation, default or
lien could reasonably be expected to have an adverse effect on the
Trustee's performance or ability to perform its duties hereunder or
thereunder or on the transactions contemplated herein or therein;
(d) the execution, delivery and performance by the Trustee of this
Agreement and any Participation Agreement will not require the
authorization, consent, or approval of, the giving of notice to, the
filing or registration with, or the taking of any other action in
respect of, any governmental authority or agency of the United States
or the state of the United States where it is located regulating the
banking and corporate trust activities of the Trustee; and
(e) this Agreement has been and any Participation Agreement will
be duly executed and delivered by the Trustee and constitutes or will
constitute the legal, valid and binding agreements of the Trustee,
enforceable against it in accordance with their respective terms;
PROVIDED, HOWEVER, 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 7.16 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 of such series appropriate documentation showing the payment
thereof, together with such additional documentary evidence as such
Certificateholders 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.
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Section 7.17 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 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 which is attributable to the Trustee either (i) in its
individual capacity and which is unrelated to the transactions contemplated by
this Agreement or the related Note Documents or (ii) as Trustee hereunder or in
its individual capacity and which arises out of acts or omissions which are not
contemplated by this Agreement.
Section 7.18 PREFERENTIAL COLLECTION OF CLAIMS. The Trustee shall
comply with Section 311(a) of the Trust Indenture Act, excluding any creditor
relationship listed in Section 311(b) of the Trust Indenture Act. If the Trustee
shall resign or be removed as Trustee, it shall be subject to Section 311(a) of
the Trust Indenture Act to the extent provided therein.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01 THE COMPANY TO FURNISH TRUSTEE WITH NAMES AND ADDRESSES OF
CERTIFICATEHOLDERS. The 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 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 Company as to the names
and addresses of the Certificateholders of each 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 7.12.
Section 8.02 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 7.12 or Section 8.01, 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 7.12 or Section 8.01, as the case may be, upon receipt of a
new list so furnished.
Section 8.03 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 such
series, as provided in 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.
Section 8.04 REPORTS BY THE COMPANY. The Company shall:
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(a) file with the Trustee, within 30 days after the 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) which the 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 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 which may be required
pursuant to section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and regulations;
(b) file with the 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
Company with the conditions and covenants of the Company 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 1.02;
(c) transmit to all Certificateholders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act such
summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this
Section 8.04 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 knowledge of the
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).
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01 SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF
CERTIFICATEHOLDERS. Without the consent of the Certificateholders, the Company
may (but will not be required to), and the Trustee (subject to Section 9.03)
shall, at the Company's request, 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:
(a) to provide for the formation of a Trust, the issuance of a
series of Certificates and other matters contemplated by Section
2.01(b); or
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(b) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein contained; or
(c) to add to the covenants of the Company for the benefit of the
Certificateholders of any series, or to surrender any right or power
conferred upon the Company in this Agreement; or
(d) to correct or supplement any provision in this Agreement which
may be defective or inconsistent with any other provision herein or
therein or to cure any ambiguity or to modify any other provision with
respect to matters or questions arising under this Agreement; PROVIDED,
HOWEVER, that any such action shall not materially adversely affect the
interests of the Certificateholders of any series; or to correct any
mistake in this Agreement; or
(e) to comply with any requirement of the SEC, any applicable law,
rules or regulations of any exchange or quotation system on which the
Certificates of any series are listed or of any regulatory body; or
(f) 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, and 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 Basic Agreement
was executed or any corresponding provision in any similar Federal
statute hereafter enacted; or
(g) 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 Trust, pursuant to the requirements of Section 7.10; or
(h) to provide the information required under Section 7.12 and
Section 12.04 as to the Trustee; or
(i) to make any other amendments or modifications hereto;
PROVIDED, HOWEVER, that such amendments or modifications shall apply to
Certificates of any series to be thereafter issued; PROVIDED, HOWEVER,
that no such supplemental agreement shall adversely affect the status
of any Trust as a grantor trust under Subpart E, Part I of Subchapter J
of Chapter 1 of Subtitle A of the Internal Revenue Code of 1986, as
amended, for U.S. federal income tax purposes.
Section 9.02 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 of such series (including consents obtained in connection
with a tender offer or exchange offer for the Certificates) evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in such Trust, by Direction of said Certificateholders delivered to the Company
and the
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Trustee, the Company may (with the consent of the Owner Trustees, if any,
relating to such Certificates, which consent shall not be unreasonably
withheld), but shall not be obligated to, and the Trustee (subject to Section
9.03) 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
agreement shall, without the consent of the Certificateholder of each
Outstanding Certificate affected thereby:
(a) reduce in any manner the amount of, or delay the timing of,
any receipt by the Trustee of payments on the Equipment 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
(b) permit the disposition of any Equipment Note included 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 Equipment Notes in such Trust; or
(c) reduce the specified percentage of the aggregate Fractional
Undivided Interests of such Trust that is required for any such
supplemental agreement, or reduce such specified 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
(d) modify any of the provisions of this Section 9.02 or Section
6.05, except to increase any such percentage 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; or
(e) adversely affect the status of any Trust as a grantor trust
under Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle A of
the Internal Revenue Code of 1986, as amended, for U.S. federal income
tax purposes.
It shall not be necessary for any Direction of such Certificateholders
under this Section 9.02 to approve the particular form of any proposed
supplemental agreement, but it shall be sufficient if such Direction shall
approve the substance thereof.
Section 9.03 DOCUMENTS AFFECTING IMMUNITY OR INDEMNITY. If in the
opinion of the Trustee any document required to be executed by it pursuant to
the terms of Section 9.01 or 9.02 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 such document.
Section 9.04 EXECUTION OF SUPPLEMENTAL AGREEMENTS. In executing, or
accepting the additional trusts created by, any supplemental agreement permitted
by this Article
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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 9.05 EFFECT OF SUPPLEMENTAL AGREEMENTS. Upon the execution of
any agreement supplemental to this 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 9.06 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 9.07 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 10.01 AMENDMENTS AND SUPPLEMENTS TO INDENTURE AND OTHER NOTE
DOCUMENTS. In the event that the Trustee, as holder of any Equipment Notes (or
as a prospective purchaser of any Postponed 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 Indenture, other Note
Document or any other related document, 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 the date of
such notice. The Trustee shall request from the Certificateholders of such
series a Direction as to (a) whether or not to take or refrain from taking any
action which a holder of (or, with respect to Postponed Notes, a prospective
purchaser of) such Equipment Note has the option to direct, (b) whether or not
to give or execute any waivers, consents, amendments, modifications or
supplements as a holder of (or, with respect to Postponed Notes, a prospective
purchaser of) such Equipment Note and (c) how to vote any Equipment Note (or,
with respect to a Postponed Note, its commitment to acquire such Postponed Note)
if a vote has been called for with respect thereto. Provided such a request for
Certificateholder Direction shall have been made, in directing any action or
casting any vote or giving any consent as the holder of any Equipment Note the
Trustee shall vote for or give consent to any such action with respect to such
Equipment Note (or Postponed Note) in the same proportion as that of (A) the
aggregate face amounts of all Certificates actually voted in favor of or for
giving consent to such action by such Direction of Certificateholders to (B) the
aggregate face amount of all Outstanding. For purposes of the immediately
preceding sentence, a Certificate shall have been "actually voted" if the Holder
of
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such Certificate has delivered to the Trustee an instrument evidencing such
Holder's consent to such Direction prior to one Business Day before the Trustee
directs such action or casts such vote or gives such consent. Notwithstanding
the foregoing, but subject to Section 6.04, the Trustee may, with respect to the
Certificates of any series, in its own discretion and at its own direction,
consent and notify the relevant Indenture Trustee of such consent to any
amendment, modification, waiver or supplement under any related Indenture or any
other related Note Document if an Event of Default hereunder shall have occurred
and be continuing or if such amendment, modification, waiver or supplement will
not materially adversely affect the interests of the Certificateholders of such
series.
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01 TERMINATION OF THE TRUSTS. In respect of each Trust
created by the Basic Agreement as supplemented by a related Trust Supplement,
the respective obligations and responsibilities of the Company and the Trustee
with respect to such Trust shall terminate upon the distribution to all Holders
of Certificates of the series of such Trust and the Trustee of all amounts
required to be distributed to them pursuant to this Agreement and the
disposition of all property held as part of the Trust Property 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 any series 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 later than the maximum number of days
specified therefor in the related Trust Supplement preceding such final
distribution specifying (A) the Regular Distribution Date (or Special
Distribution Date, as the case may be) upon which the proposed final payment of
the Certificates 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 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 in accordance with such notice, 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 4.02.
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. No additional interest shall accrue on the Certificates of
such series after
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any Regular Distribution Date (or Special Distribution Date, as the case may be)
of such series, as specified in the first written notice. 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 60 days' notice from the 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 Indenture
Trustee the appropriate amount of money relating to such Indenture Trustee and
shall give written notice thereof to the related Owner Trustees and the Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 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 Trust,
nor otherwise affect the rights, obligations, and liabilities of the parties
hereto or any of them
Section 12.02 LIABILITIES OF CERTIFICATEHOLDERS. Neither the existence
of the Trust nor any provision in this Agreement is intended to or shall limit
the liability the Certificateholders would otherwise incur if the
Certificateholders owned Trust Property as co-owners, or incurred any
obligations of the Trust, directly rather than through the Trust.
Section 12.03 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 shall be in English and in
writing, and any such notice may be given by United States mail,
courier service or telecopy, and any such notice shall be effective
when delivered or received or, if mailed, three days after deposit in
the United States mail with proper postage for ordinary mail prepaid if
to the Company:
Union Tank Car Company
000 Xxxx Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Secretary
Facsimile: (000) 000-0000 (Legal)
Telephone: (000) 000-0000
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if to the Trustee:
Bank One, National Association
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(b) The 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 or Certificate
Owners 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 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 Company with a copy of
any demand, notice or written communication received by the Trustee
hereunder from any Certificateholder, Owner Trustee or Indenture
Trustee.
Section 12.04 GOVERNING LAW. THIS BASIC AGREEMENT, TOGETHER WITH ALL
TRUST SUPPLEMENTS AND CERTIFICATES, SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.05 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 the related Trust,
or of the Certificates of such series or the rights of the Certificateholders
thereof.
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Section 12.06 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. If any provision of this Agreement
limits, qualifies or conflicts with another provision which is required to be
included in this Agreement by the Trust Indenture Act, the required provision
shall control.
Section 12.07 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 12.08 SUCCESSORS AND ASSIGNS. All covenants, agreements,
representations and warranties in this Agreement by the Trustee and the 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 12.09 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.
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.
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.
Section 12.12 COMMUNICATION BY CERTIFICATEHOLDERS WITH OTHER
CERTIFICATEHOLDERS. Certificateholders of any series may communicate with other
Certificateholders of such series with respect to their rights under this Basic
Agreement, the related Trust Supplement or the Certificates of such series
pursuant to Section 312(b) of the Trust Indenture Act. The Company, the Trustee
and any and all other persons benefitted by this Agreement shall have the
protection afforded by Section 312(c) of the Trust Indenture Act.
Section 12.13 INTENTION OF PARTIES. The parties hereto intend that each
Trust be classified for U.S. federal income tax purposes as a grantor trust
under Subpart E, Part I of Subchapter J of the Internal Revenue Code of 1986, as
amended, and not as a trust or association taxable as a corporation or as a
partnership. The powers granted and obligations undertaken pursuant to this
Agreement shall be so construed so as to further such intent.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first written above.
UNION TANK CAR COMPANY
By:
--------------------------------------------
Name:
Title:
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------------
Name:
Title:
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EXHIBIT A
FORM OF CERTIFICATE
This legend to appear on Book-Entry Certificates to be deposited with The
Depository Trust 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.
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 as the registered owner
hereof, Cede & Co., has an interest herein.
UNION TANK CAR COMPANY 2000 PASS THROUGH TRUST
2000 Pass Through Certificate, Series 200__-_____
Final Regular Distribution Date: __________, ____
evidencing a fractional undivided interest in a trust, the property of
which includes certain equipment notes each secured by equipment leased
to Union Tank Car Company.
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) Fractional
Undivided Interest in the Union Tank Car Company 2000 Pass Through Trust, Series
200__-____ (the "Trust") created by ___________, as trustee (the "Trustee"),
pursuant to a Pass Through Trust Agreement dated as of May __, 2000 (the "Basic
Agreement"), as supplemented by Trust Supplement No. _______ thereto dated
__________, 2000 (collectively, the "Agreement"), between the Trustee and Union
Tank Car Company, a Delaware corporation (the "Company"), a summary of certain
of the pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Agreement. This Certificate is one of the duly
authorized Certificates designated as "2000 Pass Through Certificate, Series
200__-____" (herein called the "Certificates"). This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement. By
virtue of its acceptance hereof, the Certificateholder of this Certificate
assents to and agrees to be
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bound by the provisions of the Agreement. The property of the Trust includes
certain Equipment Notes (the "Trust Property"). Each issue of the Equipment
Notes is or will be secured by, among other things, a security interest in
equipment leased to the Company.
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
____________, 200__, to the Person in whose name this Certificate is registered
at the close of business on the 15th day preceding the Regular Distribution
Date, an amount in respect of the Scheduled Payments on the Equipment 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 Equipment 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 the
Special Distribution Date, an amount in respect of such Special Payments on the
Equipment 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. 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.
THIS CERTIFICATE AND THE AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES AND CERTIFICATEHOLDERS HEREUNDER AND THEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
UNION TANK CAR COMPANY
PASS THROUGH TRUST, SERIES 200 -
By: BANK ONE, NATIONAL
ASSOCIATION, as Trustee
By:
-------------------------------------------
Title:
[Reverse of Pass Through Certificate]
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, 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 Trust Agreement and related
Trust Supplement. All payments or distributions made to Certificateholders under
the Trust Agreement shall be made only from the Trust Property and only to the
extent that the Trust Trustee shall have sufficient income or proceeds from the
Trust Property to make such payments in accordance with the terms of the Trust
Agreement and related Trust Supplement. Each Certificateholder of this
Certificate, by its acceptance hereof, agrees that it will look solely to the
income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Trust Agreement and
related Trust Supplement. This Certificate does not purport to summarize the
Trust Agreement and related Trust Supplement and reference is made to the Trust
Agreement and related Trust Supplement for information with respect to the
interests, rights, benefits, obligations, proceeds, and duties evidenced hereby.
A copy of the Trust Agreement may be examined during normal business hours at
the principal office of the Trust Trustee, and at such other places, if any,
designated by the Trust 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
Company and the rights of the Certificateholders under the Agreement at any time
by the Company and the Trustee with the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust. Any such consent by the
Certificateholder of this Certificate shall be conclusive and binding on such
Certificateholder and upon all future Certificateholders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Certificateholders of any of
the Certificates.
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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 duly endorsed or accompanied by a written instrument
of transfer in form satisfactory to the Trustee and the Registrar, duly executed
by the Certificateholder hereof or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same 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 issued in a
different denomination. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable 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 Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the 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.
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
This is one of the Certificates referred to in the
within-mentioned Pass Through Agreement and related Trust Supplement.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------------
Authorized Officer
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