FORT XXXXX CORPORATION,
FORT XXXXX OPERATING COMPANY
and
WILMINGTON TRUST COMPANY
as Trustee
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PASS THROUGH TRUST AGREEMENT
Dated as of , 1998
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1. Definitions..............................................................2
Section 1.2. Compliance Certificates and Opinions....................................10
Section 1.3. Form of Documents Delivered to Trustee..................................11
Section 1.4. Acts of Certificateholders..............................................12
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF SECURED NOTES
Section 2.1. Amount Unlimited, Issuable in Series....................................13
Section 2.2. Acquisition of Secured Notes............................................15
Section 2.3. Acceptance by Trustee...................................................17
Section 2.4. Limitation of Powers....................................................18
ARTICLE III
THE CERTIFICATES
Section 3.1. Form, Denomination and Execution of Certificates........................18
Section 3.2. Authentication of Certificates..........................................19
Section 3.3. Temporary Certificates..................................................19
Section 3.4. Registration of Transfer and Exchange of Certificates...................19
Section 3.5. Mutilated, Destroyed, Lost or Stolen Certificates.......................20
Section 3.6. Persons Deemed Owners...................................................20
Section 3.7. Cancellation............................................................21
Section 3.8. Limitation of Liability.................................................21
Section 3.9. Book-Entry and Definitive Certificates..................................21
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.1. Certificate Account and Special Payments Account........................24
Section 4.2. Distributions from Certificate Account and Special Payments Account.....24
Section 4.3. Statements to Certificateholders........................................26
Section 4.4. Investment of Special Payment Moneys....................................26
ARTICLE V
THE GUARANTOR AND THE COMPANIES
Section 5.1. Maintenance of Corporate Existence......................................26
Section 5.2. Consolidation, Merger, etc..............................................27
Section 5.3. Right of Guarantor to Act...............................................27
ARTICLE VI
DEFAULT
Section 6.1. Events of Default.......................................................28
Section 6.2. Incidents of Sale of Secured Notes......................................28
Section 6.3. Judicial Proceedings Instituted by Trustee, Trustee May Bring Suit......29
Section 6.4. Control by Certificateholders...........................................29
Section 6.5. Waiver of Past Defaults.................................................30
Section 6.6. Right of Certificateholders to Receive Payments Not to Be Impaired......31
Section 6.7. Certificateholders May Not Bring Suit Except Under Certain Conditions...31
Section 6.8. Remedies Cumulative.....................................................32
Section 6.9. Undertaking to Pay Court Costs..........................................32
ARTICLE VII
THE TRUSTEE
Section 7.1. Notice of Defaults......................................................32
Section 7.2. Certain Rights of Trustee...............................................32
Section 7.3. Not Responsible for Recitals or Issuance of Certificates................34
Section 7.4. May Hold Certificates...................................................34
Section 7.5. Money Held in Trust.....................................................34
Section 7.6. Compensation and Reimbursement..........................................34
Section 7.7. Corporate Trustee Required, Eligibility.................................36
Section 7.8. Resignation and Removal, Appointment of Successor.......................36
Section 7.9. Acceptance of Appointment of Successor..................................38
Section 7.10. Merger, Conversion, Consolidation or Succession to Business............39
Section 7.11. Maintenance of Agencies................................................39
Section 7.12. Money for Certificate Payments to Be Held in Trust.....................40
Section 7.13. Registration of Secured Notes in Trustee's Name........................40
Section 7.14. Representations and Warranties of Trustee..............................41
Section 7.15. Withholding Taxes, Information Reporting...............................41
Section 7.16. Trustee's Liens........................................................42
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.1. Names and Addresses of Certificateholders...............................42
Section 8.2. Preservation of Information, Communications to Certificateholders.......42
Section 8.3. Reports by Trustee......................................................43
Section 8.4. Reports by the Guarantor and each Company...............................43
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.1. Supplemental Agreements With Consent of Certificateholders..............44
Section 9.2. Supplemental Agreements with Consent of Certificateholders..............45
Section 9.3. Documents Affecting Trustee.............................................46
Section 9.4. Execution of Supplemental Agreements....................................46
Section 9.5. Effect of Supplemental Agreements.......................................46
Section 9.6. Conformity with Trust Indenture Act.....................................46
Section 9.7. Reference in Certificates to Supplemental Agreements....................46
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.1. Amendments and Supplements to Indenture and Other Note Documents.......47
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.1. Termination of the Trusts..............................................47
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1. Limitation on Rights of Certificateholders.............................48
Section 12.2. Certificates Nonassessable and Fully Paid..............................48
Section 12.3. Notices................................................................49
Section 12.4. Governing Law..........................................................50
Section 12.5. Severability of Provisions.............................................50
Section 12.6. Trust Indenture Act Controls...........................................50
Section 12.7. Effect of Headings and Table of Contents...............................51
Section 12.8. Successors and Assigns.................................................51
Section 12.9. Benefits of Agreement..................................................51
Section 12.10. Legal Holidays........................................................51
Section 12.11. Counterparts...........................................................51
EXHIBIT A - Form of Certificate
Reconciliation and tie between Pass Through Trust Agreement dated as of ,
1998 and the Trust Indenture Act of 1939. This reconciliation does not
constitute part of the Pass Through Trust Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
--------------- -----------------
310(a)(1) 7.7
(a)(2) 7.7
312(a) 3.9; 8.1; 8.2
313 8.3
314(a) 8.4(a)-(c)
(a)(4) 8.4(d)
(c)(1) 1.2
(c)(2) 1.2
(d)(1) 7.12
11.1
(d)(2) 7.12; 11.1
(d)(3) 2.1
(e) 1.2
315(b) 8.3
316(a)(last sentence) 1.1
(a)(1)(A) 6.4
(a)(1)(B) 6.5
(b) 6.6
(c) 1.4(d)
317(a)(1) 6.3
(b) 7.12
318(a) 12.6
This PASS THROUGH TRUST AGREEMENT, dated as of , 1998,
among Fort Xxxxx Corporation, a Virginia corporation (the "Guarantor"), Fort
Xxxxx Operating Company, a Virginia corporation (the "Company"), and Wilmington
Trust Company, a Delaware banking corporation, as Trustee, is made with respect
to the formation from time to time of separate Fort Xxxxx Corporation Pass
Through Trusts, and the issuance from time to time of separate series of Pass
Through Certificates representing fractional undivided interests in the
respective Trusts.
W I T N E S S E T H:
WHEREAS, from time to time the Guarantor and the Company and the
Trustee may enter into a Trust Supplement (this and certain other defined terms
used herein are defined in Section 1.1) pursuant to which the Trustee shall
declare the creation of a separate Trust for the benefit of the Holders of the
series of Certificates to be issued in respect of such Trust, and the initial
Holders of the Certificates of such series, as the grantors of such Trust, by
their respective acceptances of the Certificates of such series, shall join in
the creation of such Trust with the Trustee;
WHEREAS, all Certificates to be issued in respect of each
separate Trust will be issued as a separate series pursuant to this Agreement,
will evidence fractional undivided interests in such Trust and will have no
rights, benefits or interests in respect of any other separate Trust or the
property held therein;
WHEREAS, from time to time, pursuant to the terms and conditions
of this Agreement with respect to each separate Trust formed hereunder, the
Trustee on behalf of such Trust shall purchase one or more issues of Secured
Notes having the same interest rate as, and final maturity dates not later than
the final Regular Distribution Date of, the series of Certificates issued in
respect of such Trust and shall hold such Secured Notes in trust for the benefit
of the Certificateholders of such Trust;
WHEREAS, to facilitate the sale of Secured Notes to, and the
purchase of Secured Notes by, the Trustee on behalf of each Trust created from
time to time pursuant to this Agreement, the Guarantor and the Company have duly
authorized the execution and delivery of this Basic Agreement and are
undertaking to perform certain administrative and ministerial duties hereunder
and to pay the fees and expenses of the Trustee; and
WHEREAS, this Basic Agreement, as supplemented from time to time,
is subject to the provisions of the Trust Indenture Act of 1939, as amended, and
shall, to the extent applicable, be governed by such provisions;
NOW THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. (a) For all purposes of this Basic
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms used herein that are defined in this Article have
the meanings assigned to them in this Article, and include the plural as
well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, or by SEC rule
under the Trust Indenture Act, have the meanings assigned to them
therein;
(3) all references in this Basic Agreement to designated
"Articles", "Sections", "Subsections" and other subdivisions are to the
designated Articles, Sections, Subsections and other subdivisions of
this Basic Agreement;
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Basic Agreement as a whole and not to
any particular Article, Section or other subdivision;
(5) the term "this Agreement" (as distinguished from "this Basic
Agreement") refers, unless the context otherwise requires, to this Basic
Agreement as supplemented by the Trust Supplement creating a particular
Trust and establishing the series of Certificates issued or to be issued
in respect thereof, with reference to such Trust and such series of
Certificates, as this Basic Agreement as so supplemented may be further
supplemented with respect to such Trust and such series of Certificates;
and
(6) unless the context otherwise requires, whenever words
"including", "include" or "includes" are used herein, it shall be deemed
followed by the phrase "without limitation".
(b) For all purposes of this Basic Agreement, the following
capitalized terms have the following respective meanings:
Act: With respect to any Certificateholder, has the meaning
specified in Section 1.4.
Affiliate: With respect to any specified Person, means any other
Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such Person. For the purposes of
this definition, "control", when used with respect to any specified
Person, means the power to direct the management and policies of such
Person,
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directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: Has the meaning specified in Section 1.1(a)(5).
Authorized Agent: With respect to the Certificates of any series,
means any Paying Agent or Registrar for the Certificates of such series.
Basic Agreement: Means this Pass Through Trust Agreement, as the
same may from time to time be supplemented, amended or modified, but not
as supplemented by any Trust Supplement.
Book-Entry Certificates: With respect to the Certificates of any
series, means a beneficial interest in the Certificates of such series,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 3.9.
Business Day: With respect to the Certificates of any series,
means any day other than a Saturday, a Sunday or a day on which
commercial banks are required or authorized to close in New York, New
York and, so long as any such Certificate is outstanding, a city and
state in which the Trustee or any related Loan Trustee maintains its
Corporate Trust Office or receives and disburses funds in respect of
such Certificates or the related Secured Notes, as the case may be.
Certificate: Means any one of the certificates executed and
authenticated by the Trustee, substantially in the form of Exhibit A
hereto.
Certificate Account: With respect to the Certificates of any
series, means the account or accounts created and maintained for such
series pursuant to Section 4.1(a) and the related Trust Supplement.
Certificate Owner: With respect to the Certificates of any
series, means, for purposes of Section 3.9, the Person who has a
beneficial ownership interest in a Book-Entry Certificate of such
series.
Certificateholder or Holder: With respect to the Certificates of
any series, means the Person in whose name a Certificate of such series
is registered in the Register for Certificates of such series.
Clearing Agency: Means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934,
as amended.
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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 Fort Xxxxx Operating Company or its successors in
interest pursuant to Section 5.2.
Corporate Trust Office: With respect to the Trustee or any Loan
Trustee, means the office of such trustee in the city at which at any
particular time its corporate trust business in respect of the related
Certificates or Secured Notes, as the case may be, shall be principally
administered.
Cut-off Date: With respect to the Certificates of any series,
means the date designated as such in this Agreement.
Definitive Certificates: With respect to the Certificate of any
series, has the meaning specified in Section 3.9.
Direction: Has the meaning specified in Section 1.4(c).
ERISA: Means the Employee Retirement Income Security Act of 1974,
as amended from time to time, or any successor federal statute.
Escrow Account: With respect to the Certificates of any series,
has the meaning specified in Section 2.2(b).
Escrowed Funds: With respect to any Trust, has the meaning
specified in Section 2.2(b).
Event of Default: Means, in respect of any Trust, the occurrence
of an Indenture Event of Default under any Indenture pursuant to which
Secured Notes held by such Trust were issued.
Fractional Undivided Interest: Means the fractional undivided
interest in a Trust that is evidenced by a Certificate relating to such
Trust.
Guarantor: Means Fort Xxxxx Corporation, a Virginia corporation,
or its successor in interest.
Holder: See "Certificateholder or Holder".
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Indenture: With respect to any Trust, means each of the one or
more separate trust indenture and security agreements or similar
documents described in, or on a schedule attached to, the Trust
Supplement creating such Trust which relates to an issue of Secured
Notes to be held in such Trust; and Indentures means all of such
agreements.
Indenture Event of Default: With respect to any Indenture, means
any Indenture Event of Default (as such term is defined in such
Indenture).
Initial Regular Distribution Date: With respect to the
Certificates of any series, means the first Regular Distribution Date on
which a Scheduled Payment is to be made.
Issuance Date: With respect to the Certificates of any series,
means the date of the issuance of such Certificates.
Lease: With respect to any Secured Note, means any lease between
an Owner Trustee, as the lessor, and a Company, as the lessee, referred
to in the related Indenture, as each such lease may be amended, modified
or supplemented in accordance with its terms; and Leases means all such
Leases.
Letter of Representations: With respect to the Certificates of
any series, means the agreement with the initial Clearing Agency
relating to such Certificates.
Loan Trustee: With respect to any Secured Note or the Indenture
applicable thereto, means the bank or trust company designated as
"Indenture Trustee" under such Indenture, and any successor to such Loan
Trustee as such trustee; and Loan Trustees means all of the "Indenture
Trustees" under the Indentures.
Note Documents: With respect to any Secured Note, means the
related Indenture, Note Purchase Agreement and, if the related Property
is leased to a Company, the related Lease and the related Owner
Trustee's Purchase Agreement.
Note Purchase Agreement: With respect to the Certificates of any
series, means any note purchase, participation, refunding or similar
agreement providing for, among other things, the purchase of Secured
Notes by the Trustee on behalf of the relevant Trust; and Note Purchase
Agreements means all such agreements.
Officer's Certificate: Means a certificate signed, (a) in the
case of any corporation, by the President, any Vice President or the
Treasurer, or (b) in the case of an Owner Trustee or a Loan Trustee, a
Responsible Officer of such Owner Trustee or such Loan Trustee, as the
case may be.
Opinion of Counsel: Means a written opinion of legal counsel who
(a) in the case of counsel for the Guarantor or the Company may be (i)
an attorney who may be employed
5
by the Guarantor or the Company, (ii) the Guarantor's Legal Department
or (iii) such other counsel designated by the Guarantor or the Company
and (b) in the case of any Owner Trustee or any Loan Trustee may be such
counsel as may be designated by any of them, whether or not such counsel
is an employee of any of them, and who shall be reasonably acceptable to
the Trustee.
Outstanding: With respect to Certificates of any series, means,
as of the date of determination, all Certificates of such series
theretofore authenticated and delivered under this Agreement, except:
(i) Certificates of such series theretofore 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 11.1 hereof has been
theretofore deposited with the Trustee in trust for the Holders
of the Certificates of such series as provided in Section 4.1
pending distribution of such money to such Certificateholders
pursuant to such final distribution payment; and
(iii) Certificates of such series in exchange for or in
lieu of which other Certificates of such series have been
authenticated and delivered pursuant to this Agreement.
Owner Participant: With respect to any Secured Note, means the
"Owner Participant", if any, as referred to in the Indenture pursuant to
which such Secured Note is issued and any permitted successor or assign
of such Owner Participant; and Owner Participants at any time of
determination means all of the Owner Participants thus referred to in
the related Indentures.
Owner Trustee: With respect to any Secured Note, means the "Owner
Trustee", if any, as referred to in the Indenture pursuant to which such
Secured Note is issued, not in its individual capacity but solely as
trustee; and Owner Trustees means all of the Owner Trustees party to any
of the respective Indentures.
Owner Trustee's Purchase Agreement: With respect to any Secured
Note, if the related Property is leased to a Company, means the
"Participation Agreement" as defined in the related Lease.
Paying Agent: With respect to the Certificates of any series,
means the paying agent maintained and appointed for the Certificates of
such series pursuant to Section 7.11.
6
Permitted Investments: Means obligations of the United States of
America or agencies or instrumentalities thereof for the payment of
which the full faith and credit of the United States of America is
pledged, maturing in not more than 60 days from the date of purchase
thereof or such lesser time as is necessary for payment of any Special
Payments on a Special Distribution Date.
Person: Means any person, including any individual, corporation,
partnership, limited partnership, limited liability company, joint
venture, association, joint stock company, trust, unincorporated
organization, or government or any agency or political subdivision
thereof.
Pool Balance: With respect to any Trust, means as of any date the
aggregate unpaid principal amount of the Secured Notes held in such
Trust on such date plus the amount of the principal payments on such
Secured Notes held by the Trustee and not yet distributed plus the
amount of any moneys held in the related Escrow Account (other than
earnings thereon). The Pool Balance as of any Regular Distribution Date
or Special Distribution Date with respect to such Trust shall be
computed after giving effect to the payment of principal, if any, on
such Secured Notes and distribution thereof to be made on that date.
Pool Factor: With respect to any Trust, means as of any date the
quotient (rounded to the seventh decimal place, with .00000005 being
rounded upwards) computed by dividing (i) the Pool Balance by (ii) the
aggregate original principal amount of the Certificates issued by such
Trust. The Pool Factor as of any Regular Distribution Date or Special
Distribution Date with respect to such Trust shall be computed after
giving effect to the payment of principal, if any, on the Secured Notes
held in such Trust and distribution thereof to be made on that date.
Postponed Notes: With respect to any Trust or the related series
of Certificates, means the Secured Notes to be held in such Trust as to
which a Postponement Notice shall have been delivered pursuant to
Section 2.2(b).
Postponement Notice: With respect to any Trust or the related
series of Certificates, means an Officer's Certificate of the Company
(1) requesting that the Trustee temporarily postpone purchase of the
related Secured Notes to be held in such Trust to a date later than the
Issuance Date of such series of Certificates, (2) identifying the amount
of the purchase price of each such Secured Note and the aggregate
purchase price for all such Secured Notes, (3) setting forth the reasons
for such postponement and (4) with respect to each such Secured Note,
either (a) setting or resetting a new Transfer Date (which shall be on
or prior to the applicable Cut-off Date) for payment by the Trustee of
such purchase price and issuance of the related Secured Notes, or (b)
indicating that such new Transfer Date (which shall be on or prior to
the applicable Cut-off Date) will be set by subsequent written notice
not less than one Business Day prior to such new Transfer Date.
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Property: With respect to any Trust or the related series of
Certificates, means the "Property" as defined in the related Trust
Supplement.
Record Date: With respect to any Trust or the related series of
Certificates, means (i) for Scheduled Payments to be distributed on any
Regular Distribution Date, other than the final distribution, with
respect to such series, the 15th day (whether or not a Business Day)
preceding such Regular Distribution Date, and (ii) for Special Payments
to be distributed on any Special Distribution Date, other than the final
distribution, with respect to such series, the 15th day (whether or not
a Business Day) preceding such Special Distribution Date.
Register and Registrar: With respect to the Certificates of any
series, mean the register maintained and the registrar appointed for
such series pursuant to Sections 3.4 and 7.11.
Regular Distribution Date: With respect to distributions of
Scheduled Payments in respect of any series of Certificates, means each
date designated as such in this Agreement, until payment of all the
Scheduled Payments to be made under the Secured Notes held in the
related Trust has been made or until such Secured Notes have been
prepaid in full.
Request: Means a request by the Company or the Guarantor setting
forth the subject matter of the request accompanied by an Officer's
Certificate and an Opinion of Counsel of the Company or the Guarantor,
as provided in Section 1.2.
Responsible Officer: With respect to any Trustee, any Loan
Trustee and any Owner Trustee, means any officer in the Corporate Trust
Administration Department or similar department of the Trustee, Loan
Trustee or Owner Trustee or any other person customarily performing
functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity
with a particular subject.
Scheduled Payment: With respect to any Secured Note held in a
Trust, means any payment (other than a Special Payment) of principal of
and/or interest on such Secured Note due from the obligor thereon, which
installment represents the installment of principal at the stated
maturity of such installment of principal on such Secured Note or the
payment of regularly scheduled interest accrued on the unpaid principal
amount of such Secured Note, or both.
SEC: Means the Securities and Exchange Commission, as from time
to time constituted or created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing
such duties on such date.
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Secured Note: With respect to the Certificates of any series,
means each note, certificate or other instrument issued pursuant to any
Indenture relating to such Certificates.
Special Distribution Date: With respect to the Certificates of
any series, means each date on which a Special Payment is to be
distributed as specified in this Agreement.
Special Payment: With respect to a Special Distribution Date in
respect of the Certificates of any series, means (i) any payment of
principal of, premium, if any, and interest resulting from the
redemption or purchase of a Secured Note held in the applicable Trust,
(ii) any payment of principal of and interest (including any interest
accruing upon default) on, or any other amount in respect of, any such
Secured Note upon an Indenture Event of Default in respect thereof or
upon an acceleration under the Indenture relating thereto, (iii) the
amounts required to be distributed in respect thereof pursuant to the
antepenultimate paragraph of Section 2.2(b), (iv) the amounts required
to be distributed in respect thereof pursuant to the penultimate
paragraph of Section 2.2(b), (v) any Scheduled Payment that is not in
fact paid within five days of the Regular Distribution Date applicable
thereto or (vi) any proceeds from the sale of any such Secured Note by
the Trustee pursuant to Article VI hereof; and Special Payments means
all of such Special Payments.
Special Payments Account: With respect to the Certificates of any
series, means the account or accounts created and maintained for such
series pursuant to Section 4.l(b) and the related Trust Supplement.
Specified Investments: With respect to any Trust, means, unless
otherwise specified in the related Trust Supplement, (i) obligations of
the United States Government or agencies thereof, or guaranteed by the
United States Government, (ii) open market commercial paper of any
corporation incorporated under the laws of the United States of America
or any State thereof rated at least P-2 or its equivalent by Xxxxx'x
Investors Service, Inc. or at least A-2 or its equivalent by Standard &
Poor's Ratings Services (including the Trustee if such conditions are
met), (iii) certificates of deposit issued by commercial banks organized
under the laws of the United States or of any political subdivision
thereof having a combined capital and surplus in excess of $500,000,000,
which banks or their holding companies have a rating of A or its
equivalent by Xxxxx'x Investors Service, Inc. or A2 or its equivalent by
Standard & Poor's Ratings Services (including the Trustee if such
conditions are met); provided, however, that the aggregate amount at any
one time so invested in certificates of deposit issued by any one bank
shall not exceed 5% of such bank's capital and surplus, (iv) U.S. dollar
denominated offshore certificates of deposit issued by, or offshore time
deposits with, any commercial bank described in (iii) or any subsidiary
thereof and (v) repurchase agreements with any financial institution
having combined capital and surplus of at least $500,000,000 (including
the Trustee if such conditions are met) with any of the obligations
described in clauses (i) through (iv) as collateral; provided further
that if all of the above investments are unavailable, the entire amounts
to be invested may be used to purchase Federal Funds
9
from an entity described in clause (iii) above; and provided further
that no investment shall be eligible as a "Specified Investment" unless
the final maturity or date of return of such investment is on or before
the Special Distribution Date next following the Cut-off Date for such
Trust by more than 20 days.
Transfer Date: Has the meaning assigned to that term or any of
the terms "Delivery Date", "Funding Date" or "Closing Date" in a Note
Purchase Agreement.
Trust: With respect to the Certificates of any series, means the
related trust created by a Trust Supplement.
Trust Indenture Act: Except as otherwise provided in Section 9.6,
means the Trust Indenture Act of 1939, as amended.
Trust Property: With respect to any Trust, means the Secured
Notes held as the property of such Trust and all monies at any time paid
thereon and all monies due and to become due thereunder, debt
instruments issued by the Guarantor or by the Company (and guaranteed by
the Guarantor) in accordance with the first paragraph of Section 2.2(b),
funds from time to time deposited in the related Escrow Account, the
related Certificate Account and the related Special Payments Account and
any proceeds from the sale by the Trustee pursuant to Article VI hereof
of any such Secured Note.
Trust Supplement: Means an agreement supplemental hereto pursuant
to which (i) a separate Trust is created for the benefit of the Holders
of the Certificates of a series, (ii) the issuance of the Certificates
of such series representing fractional undivided interests in such Trust
is authorized and (iii) the terms of the Certificates of such series are
established, as such agreement may from time to time be supplemented,
amended or modified.
Trustee: In respect of each Trust, means each of the institution
or institutions executing this Basic Agreement and the applicable Trust
Supplement as Trustee, or its successor in interest, and any successor
trustee appointed as provided herein.:
Section 1.2. Compliance Certificates and Opinions. Upon any
application or request by the Company, the Guarantor, any Owner Trustee or any
Loan Trustee to the Trustee to take any action under any provision of this Basic
Agreement or, in respect of the Certificates of any series, this Agreement, the
Company, the Guarantor, such Owner Trustee or such Loan Trustee, as the case may
be, shall furnish to the Trustee an Officer's Certificate stating that, in the
opinion of the signers, all conditions precedent (including any covenants
compliance with which constitutes a condition precedent), if any, provided for
in this Basic Agreement or, in respect of any Series, this Agreement relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent (including any
covenants compliance with which constitutes a condition precedent), if any, have
been complied with, except that in the case of any such application or request
as to which the
10
furnishing of such documents is specifically required by any provision of this
Basic Agreement or, in respect of any Series, this Agreement relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Basic Agreement or, in respect of the
Certificates of any series, this Agreement (other than a certificate provided
pursuant to Section 8.4(d)) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions in this
Basic Agreement or this Agreement relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any Opinion of Counsel stated to be based on the opinion of other
counsel shall be accompanied by a copy of such other opinion. Any certificate or
opinion of an officer of the Guarantor or the Company may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Guarantor or the Company
stating that the information with respect to such factual matters is in the
possession of such Company unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Basic
11
Agreement or, in respect of the Certificates of any series, this Agreement, they
may, but need not, be consolidated and form one instrument.
Section 1.4. Acts of Certificateholders. (a) Any direction,
consent, waiver or other action provided by this Agreement in respect of the
Certificates of any series to be given or taken by Certificateholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Certificateholders in person or by an agent or proxy duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required pursuant to this
Agreement, to the Company or any Loan Trustee. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Certificateholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Agreement
and conclusive in favor of the Trustee, the Guarantor, the Company and the
related Loan Trustee, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instrument acknowledged to him
the execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or such other officer and where such execution is by
an officer of a corporation or association or a member of a partnership, on
behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable manner
which the Trustee deems sufficient.
(c) In determining whether the Certificateholders of the
requisite Fractional Undivided Interests of Certificates of any series
Outstanding have given any direction, consent or waiver (a "Direction"), under
this Agreement, Certificates owned by the Guarantor, the Company, any related
Owner Trustee, any related Owner Participant or any Affiliate of any such Person
shall be disregarded and deemed not to be Outstanding for purposes of any such
determination. In determining whether the Trustee shall be protected in relying
upon any such Direction, only Certificates that the Trustee knows to be so owned
shall be so disregarded. Notwithstanding the foregoing, (i) if any such Person
owns 100% of the Certificates of any series Outstanding, such Certificates shall
not be so disregarded as aforesaid, and (ii) if any amount of Certificates of
such series so owned by any such Person have been pledged in good faith, such
Certificates shall not be disregarded as aforesaid if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right so to act with respect to
such Certificates and that the pledgee is not the Guarantor, or the Company, any
related Owner Trustee, any related Owner Participant or any Affiliate of any
such Person.
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(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 consent,
request, demand, authorization, direction, notice, waiver or other action.
Notwithstanding Section 316(c) of the Trust Indenture Act, such record date
shall be the record date specified in such Officer's Certificate, which shall be
a date not more than 15 days prior to the first solicitation of
Certificateholders in connection therewith. If such a record date is fixed, such
consent, request, demand, authorization, direction, notice, waiver or other
action may be given before or after such record date, but only the
Certificateholders of record of the applicable series at the close of business
on such record date shall be deemed to be Certificateholders for the purposes of
determining whether Certificateholders of the requisite proportion of
Outstanding Certificates of such series have authorized or agreed or consented
to such consent, request, demand, authorization, direction, notice, waiver or
other action, and for that purpose the Outstanding Certificates of such series
shall be computed as of such record date; provided that no such consent,
request, demand, authorization, direction, notice, waiver or other action by the
Certificateholders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Agreement not later than one
year after the record date.
(e) Any request, demand, authorization, notice, direction,
consent, waiver or other action by the Certificateholder of any Certificate
shall bind the Certificateholder of every Certificate issued upon the transfer
thereof or in exchange therefor or in lieu thereof, whether or not notation of
such action is made upon such Certificate.
(f) Except as otherwise provided in Section 1.4(c), Certificates
of any series owned by or pledged to any Person shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority, or distinction as among all of the Certificates of such
series.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF SECURED NOTES
Section 2.1. Amount Unlimited, Issuable in Series. (a) The
aggregate principal amount of Certificates that may be authenticated and
delivered under this Basic Agreement is unlimited. The Certificates may be
issued from time to time in one or more series and shall be designated generally
as the "Pass Through Certificates", with such further designations added or
incorporated in such title for the Certificates of each series as specified in
the related Trust Supplement. Each Certificate shall bear upon its face the
designation so selected for the series to which it belongs. All Certificates of
the same series shall be substantially identical except that the Certificates of
a series may differ as to denomination and as may otherwise be provided in the
Trust Supplement establishing the Certificates of such series. Each series of
Certificates issued pursuant to this Agreement will evidence Fractional
Undivided Interests in the related Trust and
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will have no rights, benefits or interests in respect of any other Trust or the
Trust Property held therein. All Certificates of the same series shall be in all
respects equally and ratably entitled to the benefits of this Agreement without
preference, priority or distinction on account of the actual time or times of
authentication and delivery, all in accordance with the terms and provisions of
this Agreement.
(b) The following matters shall be established with respect to
the Certificates of each series issued hereunder by a Trust Supplement executed
and delivered by and among the Guarantor, the Company and the Trustee:
(1) the formation of the Trust as to which the Certificates of
such series represent Fractional Undivided Interests and its designation
(which designation shall distinguish such Trust from each other Trust
created under this Basic Agreement and a Trust Supplement);
(2) the specific designation and title of the Certificates of
such series (which title shall distinguish the Certificates of such
series from each other series of Certificates created under this Basic
Agreement and a Trust Supplement);
(3) any limit upon the aggregate principal amount of the
Certificates of such series that may be authenticated and delivered
(which limit shall not pertain to Certificates authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Certificates of the series pursuant to Sections 3.3, 3.4
and 3.5);
(4) the Cut-off Date with respect to the Certificates of such
series and the related Trust;
(5) the Regular Distribution Dates applicable to the Certificates
of such series and the related Trust;
(6) the Special Distribution Dates applicable to the Certificates
of such series and the related Trust;
(7) if other than as provided in Section 3.4 or 7.11(b), the
Registrar or the Paying Agent for the Certificates of such series,
including any Co-Registrar or additional Paying Agent;
(8) if other than as provided in Section 3.1, the denominations
in which the Certificates of such series shall be issuable and, if other
than United States dollars, the currency or currencies (including
currency units) thereof;
(9) the specific form of the Certificates of such series
(including the interest rate applicable thereto) and whether or not
Certificates of such series are to be issued as
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Book-Entry Certificates and, if such Certificates are to be Book-Entry
Certificates, the form of Letter of Representations, if any;
(10) a description of the related Secured Notes to be acquired
and held in the related Trust and of the related Property and the
related Note Documents, including whether or not such Secured Notes are
senior or subordinate to any other Secured Notes and if so, the terms
and conditions pursuant to which such Secured Notes are senior to or
subordinate to other Secured Notes or other debt secured by the
Property;
(11) provisions with respect to the terms for which the
definitions set forth in Article I hereof or the terms of Section 9.1
hereof permit or require further specification in the related Trust
Supplement;
(12) any restrictions (including legends) in respect of ERISA;
(13) whether such series will be subject to any intercreditor
agreement, liquidity or credit facility or other agreement or
instrument;
(14) any other terms of the Certificates of such series (which
terms shall not be inconsistent with the provisions of the Trust
Indenture Act), including any terms that may be required or advisable
under United States laws or regulations or advisable in connection with
the marketing of Certificates of such series;
(15) the extent, if any, to which the Guarantor or the Company
may acquire Certificates and deliver such Certificates or cash to the
respective Trusts and obtain the release of Secured Notes held by such
Trusts; and
(16) whether the Certificates are issuable as bearer instead of
registered Certificates or both, and the terms upon which bearer
Certificates may be exchanged for registered Certificates.
(c) At any time and from time to time after the execution and
delivery of this Basic Agreement and a Trust Supplement forming a Trust and
establishing the terms of Certificates of a series, Certificates of such series
shall be executed, authenticated and delivered by the Trustee to the Person or
Persons specified by the Company upon request of the Company and upon
satisfaction of any conditions precedent set forth in such Trust Supplement or
in any other document to which a Trustee is a party relating to the issuance of
the Certificates of such series.
Section 2.2. Acquisition of Secured Notes. (a) Unless otherwise
specified in the related Trust Supplement, on or prior to the Issuance Date of
the Certificates of a series, the Trustee shall execute and deliver the related
Note Purchase Agreements in the forms delivered to the Trustee by the Company.
The Trustee shall issue and sell such Certificates, in authorized denominations
and in such Fractional Undivided Interests, so as to result in the receipt of
15
consideration in an amount equal to the aggregate purchase price of Secured
Notes to be held in the applicable Trust as specified in the related Note
Purchase Agreements and, concurrently therewith, the Trustee shall purchase,
pursuant to the terms and conditions of such Note Purchase Agreements, the
Secured Notes (except Postponed Notes, if any) at a purchase price equal to the
amount of such consideration so received. Except as provided in Sections 3.3,
3.4 and 3.5 hereof, the Trustee shall not execute, authenticate or deliver
Certificates of such series in excess of the aggregate amount specified in this
paragraph. The provisions of this Subsection (a) are subject to the provisions
of Subsection (b) below.
(b) If on or prior to the Issuance Date with respect to a series
of Certificates the Company shall deliver to the Trustee a Postponement Notice
relating to one or more Postponed Notes, the Trustee shall postpone the purchase
of such Postponed Notes and shall deposit into an escrow account (as to such
Trust, the "Escrow Account") to be maintained as a part of the related Trust an
amount equal to the purchase price of such Postponed Notes (the "Escrowed
Funds"). The Escrowed Funds so deposited shall be (i) invested by the Trustee at
the direction and risk of the Company in Specified Investments or (ii) if
provided in the Trust Supplement relating to such series of Certificates and
subject to the terms and conditions set forth therein, invested in debt
instruments of the Guarantor or the Company (and guaranteed by the Guarantor),
in each case (x) maturing no later than any scheduled Transfer Date relating to
such Postponed Notes, or (y) if no such Transfer Date has been scheduled,
maturing on the next Business Day, or (z) if subsequent to the giving of the
applicable Postponement Notice the Company has given notice to the Trustee that
any Postponed Notes will not be issued, thereafter with respect to the portion
of the Escrowed Funds relating to such Postponed Notes, maturing on or before
the next applicable Special Distribution Date, if such investments are
reasonably available for purchase. The Trustee shall make withdrawals from the
Escrow Account only as provided in this Agreement. Upon request of the Company
on one or more occasions and the satisfaction of the closing conditions
specified in the applicable Note Purchase Agreements on or prior to the related
Cut-off Date, the Trustee shall purchase the applicable Postponed Notes with the
Escrowed Funds withdrawn from the Escrow Account.
The Trustee shall hold all Specified Investments until the
maturity thereof and will not sell or otherwise transfer Specified Investments.
If Specified Investments held in an Escrow Account mature prior to any
applicable Transfer Date, any proceeds received on the maturity of such
Specified Investments (other than any earnings thereon) shall be reinvested by
the Trustee at the direction and risk of, and for the benefit of, the Company in
Specified Investments maturing as provided in the preceding paragraph.
Any earnings on Specified Investments received from time to time
by the Trustee shall be distributed to the Company periodically upon its demand,
or if not so distributed, reinvested by the Trustee in Specified Investments
maturing as provided in the applicable Trust Supplement or in the second
preceding paragraph. The Company shall pay to the Trustee for deposit to the
relevant Escrow Account an amount equal to any losses incurred on such Specified
Investments made at the direction and risk of such Company. On the Initial
Regular Distribution
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Date in respect of the Certificates of any series, the Company will pay (in
immediately available funds) to the Trustee an amount equal to the interest that
would have accrued on those Postponed Notes related to such Company, if any,
purchased after the Issuance Date as if such Postponed Notes had been purchased
on the Issuance Date, from the Issuance Date to, but not including , the date of
the purchase of such Postponed Notes by the Trustee, but only to the extent such
accrued interest would be payable on the next succeeding payment date, unless
otherwise specified in the related Trust Supplement.
If, in respect of the Certificates of any series, the Company
notifies the Trustee prior to the applicable Cut-off Date that any Postponed
Notes will not be issued on or prior to such Cut-off Date for any reason, on the
next Special Distribution Date for such Certificates occurring more than 20 days
following the date of such notice, unless otherwise specified in the related
Trust Supplement, (i) the Company shall pay to the Trustee for deposit in the
related Special Payments Account, in immediately available funds, an amount
equal to the interest that would have accrued on the Postponed Notes related to
the Company designated in such notice at a rate equal to the interest rate
applicable to such Certificates from the Issuance Date to, but not including,
such Special Distribution Date and (ii) the Trustee shall transfer an amount
equal to the sum of that amount of Escrowed Funds that would have been used to
purchase the Postponed Notes designated in such notice plus the amount paid by
the Company pursuant to the immediately preceding clause (i) to the related
Special Payments Account for distribution as a Special Payment in accordance
with the provisions hereof.
If, on such Cut-off Date, an amount equal to less than all of the
Escrowed Funds (other than Escrowed Funds referred to in the immediately
preceding paragraph) has been used to purchase Postponed Notes, on the next such
Special Distribution Date occurring more than 20 days following such Cut-off
Date, unless otherwise specified in the related Trust Supplement, (i) the
Company shall pay to the Trustee for deposit in such Special Payments Account,
in immediately available funds, an amount equal to the interest that would have
accrued on such Postponed Notes related to the Company contemplated to be
purchased with such unused Escrowed Funds (other than Escrowed Funds referred to
in the immediately preceding paragraph) but not so purchased at a rate equal to
the interest rate applicable to such Certificates from the Issuance Date to, but
not including, such Special Distribution Date and (ii) the Trustee shall
transfer the sum of such unused Escrowed Funds plus the amount paid by the
Company pursuant to the immediately preceding clause (i) to such Special
Payments Account for distribution as a Special Payment in accordance with the
provisions hereof.
If the Company shall fail to make any payment due under this
Section 2.2, the Guarantor agrees to make such payment in its place.
Section 2.3. Acceptance by Trustee. The Trustee, upon the
execution and delivery of a Trust Supplement creating a Trust and establishing a
series of Certificates, shall acknowledge its acceptance of all right, title,
and interest in and to the Secured Notes to be acquired pursuant to Section 2.2
hereof and the Note Purchase Agreements and shall declare that the Trustee holds
and
17
will hold such right, title, and interest, together with all other property
constituting the Trust Property of such Trust, for the benefit of all then
present and future Certificateholders of such series, upon the trusts herein and
in such Trust Supplement set forth. By its payment for and acceptance of each
Certificate of such series issued to it under this Agreement, each initial
Certificateholder of such series as grantor of such Trust shall thereby join in
the creation and declaration of such Trust.
Section 2.4. Limitation of Powers. Each Trust shall be
constituted solely for the purpose of making the investment in the Secured Notes
provided for in the related Trust Supplement, and, except as set forth in
Section 2.2(b) or otherwise in this Agreement, the Trustee shall not be
authorized or empowered to acquire any other investments or engage in any other
activities and, in particular, the Trustee shall not be authorized or empowered
to do anything that would cause such Trust to fail to qualify as a "grantor
trust" for federal income tax purposes (including as subject to this
restriction, acquiring any Property by bidding such Secured Notes or otherwise,
or taking any action with respect to any such Property once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.1. Form, Denomination and Execution of Certificates.
The Certificates of each series shall be issued in registered form (except as
otherwise specified in the relevant Trust Supplement) without coupons and shall
be substantially in the form attached hereto as Exhibit A, with such omissions,
variations and insertions as are permitted by this Agreement, and may have such
letters, numbers or other marks of identification and such legends or
endorsements typed, printed, lithographed or engraved thereon, as may be
required to comply with the rules of any securities exchange on which such
Certificates may be listed or to conform to any usage in respect thereof, or as
may, consistently herewith, be prescribed by the Trustee or by the officer
executing such Certificates, such determination by said officer to be evidenced
by his signing the Certificates.
Except as provided in Section 3.9, the definitive Certificates of
such series shall be typed, printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner permitted by
the rules of any securities exchange on which such Certificates may be listed,
all as determined by the officer executing such Certificates, as evidenced by
his execution of such Certificates.
Except as otherwise provided in the related Trust Supplement, the
Certificates of each series shall be issued in minimum denominations of $1,000
or integral multiples thereof, except that one Certificate of such series may be
issued in a denomination of less than $1,000.
The Certificates of each series shall be executed on behalf of
the Trustee by manual or facsimile signature of a Responsible Officer of the
Trustee. Certificates of any series bearing
18
the manual or facsimile signature of an individual who was, at the time when
such signature was affixed, authorized to sign on behalf of the Trustee shall be
valid and binding obligations of the Trustee, notwithstanding that such
individual has ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such office at the date of such
Certificates. No Certificate of any series shall be entitled to any benefit
under this Agreement, or be valid for any purpose unless there appears on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A hereto executed by or on behalf of the Trustee by manual signature,
and such certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates of any series shall be
dated on the date of their authentication.
Section 3.2. Authentication of Certificates. The Trustee shall
duly authenticate and deliver Certificates of each series in authorized
denominations equaling in the aggregate the aggregate principal amount of the
Secured Notes to be purchased by the Trustee pursuant to the related Note
Purchase Agreements, and evidencing the entire ownership of the related Trust.
Section 3.3. Temporary Certificates. Pending the preparation of
definitive Certificates of any series, the Trustee may execute, authenticate and
deliver temporary Certificates of such series that are printed, lithographed,
typewritten or otherwise produced, in any denomination, containing substantially
the same terms and provisions as set forth in Exhibit A hereto, except for such
appropriate insertions, omissions, substitutions and other variations relating
to their temporary nature as the officer executing such temporary Certificates
may determine, as evidenced by such officer's execution of such temporary
Certificates.
If temporary Certificates of any series are issued, the Trustee
will cause definitive Certificates of such series to be prepared without
unreasonable delay. After the preparation of definitive Certificates of such
series, the temporary Certificates shall be exchangeable for definitive
Certificates upon surrender of such temporary Certificates at the Corporate
Trust Office of the Trustee, or at the office or agency of the Trustee
maintained in accordance with Section 7.11, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Certificates, the
Trustee shall execute, authenticate and deliver in exchange therefor definitive
Certificates of like series, in authorized denominations and of a like aggregate
Fractional Undivided Interest. Until so exchanged, such temporary Certificates
shall in all respects be entitled to the same benefits under this Agreement as
definitive Certificates.
Section 3.4. Registration of Transfer and Exchange of
Certificates. The Trustee shall cause to be kept at the office or agency to be
maintained by it in accordance with the provisions of Section 7.11 a register
(the "Register") for each series of Certificates in which, subject to such
reasonable regulations as it may prescribe, the Trustee shall provide for the
registration of Certificates of such series and of transfers and exchanges of
such Certificates as herein provided. The Trustee shall initially be the
registrar (the "Registrar") for the purpose of registering Certificates of each
series and transfers and exchanges of such Certificates as herein provided.
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Upon surrender for registration of transfer of any Certificate at
the Corporate Trust Office or such other office or agency, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of like series, in authorized
denominations of a like aggregate Fractional Undivided Interest.
At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of like series, in authorized denominations and
of a like aggregate Fractional Undivided Interest, upon surrender of the
Certificates to be exchanged at the Corporate Trust Office or at any such office
or agency. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute, authenticate and deliver the Certificates that the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Registrar duly executed by the Certificateholder thereof
or its attorney duly authorized in writing.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Trustee shall
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Trustee.
Section 3.5. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Registrar, or the
Registrar receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate, and (b) there is delivered to the Registrar and the
Trustee such security, indemnity or bond as may be required by them to save each
of them harmless, then, in the absence of notice to the Registrar or the Trustee
that such Certificate has been acquired by a bona fide purchaser, the Trustee
shall execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate or
Certificates of like series, in authorized denominations and of like Fractional
Undivided Interest. In connection with the issuance of any new Certificate under
this Section 3.5, the Trustee shall require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
and the Registrar) connected therewith. Any duplicate Certificate issued
pursuant to this Section 3.5 shall constitute conclusive evidence of the
appropriate Fractional Undivided Interest in the related Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
Section 3.6. Persons Deemed Owners. Prior to due presentation of
a Certificate for registration of transfer, the Guarantor, the Company, the
Trustee, the Registrar, and any Paying Agent of the Trustee may treat the Person
in whose name any Certificate is registered on the Register as the owner of such
Certificate for the purpose of receiving distributions pursuant to
20
Section 4.2 and for all other purposes whatsoever, and neither the Guarantor,
the Company, the Trustee, the Registrar, nor any Paying Agent of the Trustee
shall be affected by any notice to the contrary.
Section 3.7. Cancellation. All Certificates surrendered for
payment or registration of transfer or exchange shall, if surrendered to any
Person party hereto or any agent of the Trustee other than the Registrar, be
delivered to the Registrar for cancellation. No Certificates shall be
authenticated in lieu of or in exchange for any Certificates cancelled as
provided in this Section, except as expressly permitted by this Agreement. All
cancelled Certificates held by the Registrar shall be destroyed and a
certification of their destruction delivered to the Trustee.
Section 3.8. Limitation of Liability. All payments or
distributions made to Certificateholders of any series under this Basic
Agreement and the related Trust Supplement shall be made only from the Trust
Property of the related Trust and only to the extent that the Trustee shall have
sufficient income or proceeds from such Trust Property to make such payments in
accordance with the terms of Article IV of this Agreement. Each
Certificateholder, by its acceptance of a Certificate, agrees that it will look
solely to the income and proceeds from the Trust Property of the related Trust
to the extent available for distribution to such Certificateholder as provided
in this Agreement.
Nothing in this Agreement shall be construed as an agreement, or
otherwise creating an obligation, of the Guarantor or the Company to pay any of
the principal, premium, if any, and interest due from time to time under the
Secured Notes or in respect of the Certificates. The Guarantor and the Company
are parties to this Agreement solely for purposes of meeting the requirements of
the Trust Indenture Act, and therefore shall not be liable hereunder (except as
otherwise expressly provided herein).
Section 3.9. Book-Entry and Definitive Certificates. (a) Except
for one Certificate of each series that may be issued in a denomination of less
than $1,000, the Certificate of any series may, at the sole option of the
Company, be issued in the form of one or more typewritten Certificates
representing the Book-Entry Certificates of such series, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the
Company. In such case, the Certificate of such series delivered to The
Depository Trust Company shall initially be registered on the Register in the
name of CEDE & Co., the nominee of the initial Clearing Agency, and no
Certificate Owner will receive a definitive certificate representing such
Certificate Owner's interest in the Certificates of such series, except as
provided above and in Subsection (d) below. As to the Certificates of any
series, except with respect to the one Certificate of such series that may be
issued in a denomination of less than $1,000, unless and until definitive, fully
registered Certificates of such series (the "Definitive Certificates") have been
issued pursuant to Subsection (d) below:
(i) the provisions of this Section 3.9 shall be in full force and
effect;
21
(ii) the Guarantor, the Company, the Paying Agent, the Registrar
and the Trustee may deal with the Clearing Agency for all purposes
(including the making of distributions on the Certificates) as the
authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.9
conflict with any other provisions of this Agreement (other than the
provisions of any Trust Supplement amending this Section 3.9 as
permitted by this Basic Agreement), the provisions of this Section 3.9
shall control;
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Certificate Owners and the Clearing
Agency Participants; and until Definitive Certificates are issued
pursuant to Subsection (d) below, the Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit distributions of principal and interest and premium, if
any, on the Certificates to such Clearing Agency Participants;
(v) such Certificates of such series may be transferred in whole,
but not in part, and in the manner provided in Section 3.4 by the
Clearing Agency holding such Certificates to a nominee of such Clearing
Agency or by such Clearing Agency to a successor Clearing Agency
selected or approved by the Company upon notice to the Trustee or to a
nominee of such successor Clearing Agency; and
(vi) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Certificateholders of
such series holding Certificates of such series evidencing a specified
percentage of the Fractional Undivided Interests in the related Trust,
the Clearing Agency shall be deemed to represent such percentage only to
the extent that it has received instructions to such effect from
Certificate Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the beneficial
interest in Certificates of such series and has delivered such
instructions to the Trustee. The Trustee shall have no obligation to
determine whether the Clearing Agency has in fact received any such
instructions.
(b) Except with respect to the one Certificate of each series
that may be issued in a denomination of less than $1,000, whenever notice or
other communication to the Certificateholders of such series is required under
this Agreement, unless and until Definitive Certificates shall have been issued
pursuant to Subsection (d) below, the Trustee shall give all such notices and
communications specified herein to be given to Certificateholders of such series
to the Clearing Agency and/or the Clearing Agency Participants, and shall make
available additional copies as requested by such Clearing Agency Participants.
(c) Unless and until Definitive Certificates of a series are
issued pursuant to Subsection (d) below, on the Record Date prior to each
applicable Regular Distribution Date and
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Special Distribution Date, the Trustee will request from the Clearing Agency a
securities position listing setting forth the names of all Clearing Agency
Participants reflected on the Clearing Agency's books as holding interests in
the Certificates of such series on such Record Date. The Trustee shall mail to
each such Clearing Agency Participant the statements described in Section 4.3
hereof and will make available additional copies as requested by such Clearing
Agency Participant for forwarding by such Clearing Agency Participant to
Certificate Owners.
(d) If with respect to the Book-Entry Certificates of any series
(i) the Company advises the Trustee in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities and the
Trustee or the Applicable Company is unable to locate a qualified successor or
(ii) the Applicable Company, at its option, advises the Trustee in writing of
its election to terminate the book-entry system through the Clearing Agency in
respect of the Certificates or (iii) after the occurrence of an Event of
Default, Certificate Owners of Book-Entry Certificates of such series evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in the related Trust advise the Company, the Trustee and the Clearing Agency
through the Clearing Agency Participants in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best interests
of the Certificate Owners of such series, then the Trustee shall notify all
Certificate Owners of such series, through the Clearing Agency, of the
occurrence of such event and of the availability of Definitive Certificates.
Upon surrender to the Trustee of all the Certificates of such series held by the
Clearing Agency, accompanied by written registration instructions from the
Clearing Agency for registration of Definitive Certificates in the names of
Certificate Owners of such series, the Trustee shall execute, authenticate and
deliver the Definitive Certificates of such series pursuant to Section 3.4 in
accordance with the instructions of the Clearing Agency. Neither the Guarantor,
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
authentication and delivery of Definitive Certificates of such series, the
Trustee shall recognize the Persons in whose name the Definitive Certificates
are registered in the Register as Certificateholders hereunder. None of the
Company, the Guarantor and 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.
(f) The provisions of this Section 3.9 may be made inapplicable
to any series or may be amended with respect to any series in the related Trust
Supplement.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
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CERTIFICATEHOLDERS
Section 4.1. Certificate Account and Special Payments Account.
(a) The Trustee shall establish and maintain on behalf of the Certificateholders
of each series a Certificate Account as one or more non-interest-bearing
accounts. The Trustee shall hold the Certificate Account in trust for the
benefit of the Certificateholders of such series, and shall make or permit
withdrawals therefrom only as provided in this Agreement. On each day when a
Scheduled Payment is made under an Indenture to the Trustee, the Trustee, as
holder of the Secured Notes issued under such Indenture and held in the related
Trust, upon receipt shall immediately deposit the aggregate amount of such
Scheduled Payment in the applicable Certificate Account.
(b) The Trustee shall establish and maintain on behalf of the
Certificateholders of each series a Special Payments Account as one or more
accounts, which shall be non-interest bearing except as provided in Section 4.4.
The Trustee shall hold the Special Payments Account in trust for the benefit of
the Certificateholders of such series, and shall make or permit withdrawals
therefrom only as provided in this Agreement. On each day when one or more
Special Payments (other than a Special Payment that represents the proceeds of
any sale pursuant to Article VI hereof by the Trustee of a Secured Note) are
made under the Indenture to the Trustee, as holder of the Secured Notes issued
under such Indenture and held in the related Trust or pursuant to the
penultimate and antepenultimate paragraphs of Section 2.2(b), the Trustee upon
receipt shall immediately deposit the aggregate amounts of such Special Payments
in such Special Payments Account. Upon the sale of Secured Notes by the Trustee
pursuant to Article VI hereof and the realization of any proceeds thereof, the
Trustee shall deposit the aggregate amount of such proceeds as a Special Payment
in the applicable Special Payments Account.
(c) The Trustee shall present to the Loan Trustee to which a
Secured Note held in a related Trust relates such Secured Note on the date of
its stated final maturity or, in the case of any Secured Note held in a related
Trust that is to be redeemed or purchased in whole pursuant to the relevant
Indenture, on the applicable redemption or purchase date under such Indenture.
Section 4.2. Distributions from Certificate Account and Special
Payments Account. (a) On each Regular Distribution Date with respect to a series
of Certificates or as soon thereafter as the Trustee has confirmed receipt of
the payment of the Scheduled Payments due on the Secured Notes held in the
related Trust on such date, the Trustee shall distribute out of the applicable
Certificate Account the entire amount deposited therein pursuant to Section
4.1(a). There shall be so distributed to each Certificateholder of record of
such series on the Record Date with respect to such Regular Distribution Date
(other than as provided in Section 1.1. 1 concerning the final distribution) by
check mailed to such Certificateholder at the address appearing in the Register
such Certificateholder's pro rata share (based on the aggregate Fractional
Undivided Interest in the related Trust held by such Certificateholder) of the
aggregate amount in the applicable Certificate Account.
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(b) On each Special Distribution Date with respect to any Special
Payment with respect to a series of Certificates or as soon thereafter as the
Trustee has confirmed receipt of such Special Payment due on the Secured Notes
held in the related Trust or realized upon the sale of any such Secured Notes,
the Trustee shall distribute out of the applicable Special Payments Account the
entire amount deposited therein pursuant to Section 4.l(b) of such Special
Payment. There shall be so distributed to each Certificateholder of record of
such series on the Record Date with respect to such Special Distribution Date
(other than as provided in Section 11.1 concerning the final distribution) by
check mailed to such Certificateholder at the address appearing in the Register
such Certificateholder's pro rata share (based on the aggregate Fractional
Undivided Interest in the related Trust held by such Certificateholder) of the
aggregate amount in the applicable Special Payments Account on account of such
Special Payment.
(c) The Trustee shall, at the expense of the Company, cause
notice of each Special Payment with respect to a series of Certificates to be
mailed to each Certificateholder of such series at its address as it appears in
the Register. In the event of redemption or purchase of Secured Notes held in
the related Trust, such notice shall be mailed not less than 20 days prior to
the date any such Special Payment is scheduled to be distributed. In the case of
any other Special Payments, such notice shall be mailed as soon as practicable
after the Trustee has confirmed that it has received funds for such Special
Payment. Notices mailed by the Trustee shall set forth:
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 11.1),
(ii) the amount of the Special Payment for each $1,000 face
amount Certificate (taking into account any payment to be made by the
Company pursuant to Section 2.2(b)) and the amount thereof constituting
principal, premium, if any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a
Regular Distribution Date for the Certificates of such series, the total
amount to be received on such date for each $1,000 face amount
Certificate.
If the amount of premium, if any, payable upon the redemption or purchase of a
Secured Note has not been calculated at the time that the Trustee mails notice
of a Special Payment, it shall be sufficient if the notice sets forth the other
amounts to be distributed and states that any premium received will also be
distributed.
If any redemption or purchase of the Secured Notes held in any
Trust is cancelled, the Trustee, as soon as possible after learning thereof,
shall cause notice thereof to be mailed to each Certificateholder of the related
series at its address as it appears on the Register.
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Section 4.3. Statements to Certificateholders. (a) On each
Regular Distribution Date and Special Distribution Date with respect to a series
of Certificateholders, the Trustee will include with each distribution to
Certificateholders of record of the related series on the Record Date with
respect to such Regular Distribution Date or Special Distribution Date a
statement, giving effect to such distribution to be made on such Regular
Distribution Date or Special Distribution Date, as the case may be, setting
forth the following information (per $1,000 face amount Certificate as to (i)
and (ii) below):
(i) The amount of such distribution allocable to principal and
the amount allocable to premium, if any;
(ii) The amount of such distribution allocable to interest; and
(iii) The Pool Balance and the Pool Factor of the related Trust.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Trustee
shall furnish to each Person who at any time during such calendar year was a
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i) and (a)(ii) with respect to the related
Trust for such calendar year or, in the event such Person was a
Certificateholder of record during a portion of such calendar year, for the
applicable portion of such year, and such other items as are readily available
to the Trustee and that a Certificateholder shall reasonably request as
necessary for the purpose of such Certificateholder's reparation of its Federal
income tax return.
Section 4.4. Investment of Special Payment Moneys. Any money
received by the Trustee pursuant to Section 4.1(b) representing a Special
Payment that is not to be promptly distributed shall, to the extent practicable,
be invested (and reinvested) in, at the written direction of the Company,
Permitted Investments by the Trustee pending distribution of such Special
Payment pursuant to Section 4.2. Any investment (including any reinvestment)
made pursuant to this Section 4.4 shall be in such Permitted Investments having
maturities not later than the date that such moneys are required to be used to
make the payment required under Section 4.2 on the applicable Special
Distribution Date and the Trustee shall hold any such Permitted Investments
until maturity. The Trustee shall have no liability with respect to any
investment made pursuant to this Section 4.4, other than by reason of the
willful misconduct or negligence of the Trustee. All income and earnings from
such investments shall be distributed on such Special Distribution Date as part
of such Special Payment.
ARTICLE V
THE GUARANTOR AND THE COMPANIES
Section 5.1. Maintenance of Corporate Existence. The Guarantor
and the Company, at its own cost and expense, will do or cause to be done all
things necessary to preserve
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and keep in full force and effect its corporate existence, rights (charter and
statutory) and franchises, except as otherwise specifically permitted in Section
5.2; provided, however, that neither the Guarantor nor the Company shall be
required to preserve any right or franchise if it shall determine that the
preservation thereof is no longer desirable in the conduct of its business.
Section 5.2. Consolidation, Merger, etc. Neither the Guarantor
nor the Company shall consolidate with or merge into any other corporation or
convey, transfer or lease substantially all of its assets as an entirety to any
Person unless:
(a) the corporation formed by such consolidation or into which
the Guarantor or the Company is merged or the Person that acquires by
conveyance, transfer or lease substantially all of the assets of the
Guarantor or 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 or, in the case of the Guarantor,
any other jurisdiction;
(b) the corporation formed by such consolidation or into which
the Guarantor or the Company is merged or the Person that acquires by
conveyance, transfer or lease substantially all of the assets of the
Guarantor or the Company as an entirety shall execute and deliver to the
Trustee an agreement containing an assumption by such successor
corporation or Person of the due and punctual performance and observance
of each covenant and condition to be performed or observed by the
Guarantor or the Company under this Agreement;
(c) the Guarantor or the Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of Counsel stating that
such consolidation, merger, conveyance, transfer or lease and the
assumption agreement mentioned in clause (b) above comply with this
Section 5.2.
Upon any consolidation or merger, or any conveyance, transfer or
lease of substantially all of the assets of the Guarantor or the Company as an
entirety in accordance with this Section 5.2, the successor corporation or
Person formed by such consolidation or into which the Guarantor or 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
Guarantor or the Company under this Agreement applicable to the Certificates of
each series with the same effect as if such successor corporation or Person had
been named as the Guarantor or the Company herein.
Section 5.3. Right of Guarantor to Act. The Guarantor shall be
entitled, without further confirmation by the Company, to take, give or make on
behalf of the Company any action, direction or Request under this Basic
Agreement or this Agreement that may be taken, given or made by the Company.
ARTICLE VI
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DEFAULT
Section 6.1. Events of Default. If, in respect of any Trust, any
Indenture Event of Default under any related Indenture shall occur and be
continuing, then, and in each and every case, so long as such Indenture Event of
Default shall be continuing, (a) the Trustee may vote all Secured Notes issued
under the relevant Indenture held in such Trust, and upon the direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests in such Trust aggregating not less than a majority in interest in such
Trust, the Trustee shall vote not less than a corresponding majority of such
Secured Notes, in favor of directing the Loan Trustee under such Indenture to
declare the unpaid principal amount of such Secured Notes then outstanding to
which such Indenture Event of Default relates and accrued interest thereon to be
due and payable under, and in accordance with the provisions of, such Indenture,
and (b) the Trustee may in accordance with the provisions of the relevant
Indenture vote such Secured Notes held in such Trust to direct the Loan Trustee
regarding the exercise of remedies provided in such Indenture.
In addition, after an Indenture Event of Default shall have
occurred and be continuing with respect to any Secured Note or Secured Notes
held in a Trust, the Trustee thereof may, subject to Section 6.4, in its
discretion, and upon the direction of the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less than
majority in interest in such Trust shall, by such officer or agent as it may
appoint, sell, convey, transfer and deliver such Secured Note or Secured Notes,
without recourse to or warranty by the Trustee or any Certificateholder, to any
Person. In any such case, the Trustee shall sell, assign, contract to sell or
otherwise dispose of and deliver such Secured Note or Secured Notes in one or
more parcels at public or private sale or sales, in accordance with applicable
law, including any applicable securities laws, and the terms of the applicable
Note Documents, at any location or locations at the option of the Trustee, all
upon such terms and conditions as it may reasonably deem advisable and at such
prices as it may reasonably deem advisable, for cash. If the Trustee so decides
or is required to sell or otherwise dispose of such Secured Note pursuant to
this Section, the Trustee shall take such of the actions described above as it
may reasonably deem most effectual to complete the sale or other disposition of
such Secured Note at the best price obtainable under the circumstances.
Notwithstanding the foregoing, the Trustee shall not take any action under this
Section unless, in the reasonable judgment of the Trustee, such action shall not
be adverse to the best interests of the Certificateholders of the applicable
series.
Section 6.2. Incidents of Sale of Secured Notes. Upon any sale of
all or any part of the Secured Notes held in a Trust made either under the power
of sale given under this Agreement or otherwise for the enforcement of this
Agreement, the following shall be applicable:
(1) Certificateholders and Trustee May Purchase Secured Notes.
Any Certificateholder, the Trustee in its individual or any other
capacity or any other Person may bid for and purchase any of such
Secured Notes, and upon compliance with the terms of sale, may hold,
retain, possess and dispose of such Secured Notes in its own absolute
right without further accountability.
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(2) Receipt of Trustee Shall Discharge Purchaser. The receipt of
the Trustee or of the officer or agent making such sale shall be a
sufficient discharge to any purchaser for his purchase money, and, after
paying such purchase money and receiving such receipt, such purchaser or
its personal representative or assigns shall not be obliged to see to
the application of such purchase money, or be in any way answerable for
any loss, misapplication or non-application thereof.
(3) Application of Moneys Received upon Sale. Any moneys
collected by the Trustee upon any sale made either under the power of
sale given by this Agreement or otherwise for the enforcement of this
Agreement shall be applied as provided in Section 4.2.
Section 6.3. Judicial Proceedings Instituted by Trustee, Trustee
May Bring Suit. If there shall be a failure to make payment of the principal of,
premium, if any, or interest on any Secured Note held in a Trust when due and
payable, then the Trustee, in its own name, and as trustee of an express trust,
as holder of such Secured Notes, shall be, to the extent permitted by and in
accordance with the terms of the applicable Note Documents, entitled and
empowered to institute any suits, actions or proceedings at law, in equity or
otherwise, for the collection of the sums so due and unpaid on such Secured
Notes and may prosecute any such claim or proceeding to judgment or final decree
with respect to the whole amount of any such sums so due and unpaid.
Section 6.4. Control by Certificateholders. Subject to Section
6.3, the Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the related Trust
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee with respect to such Trust,
or exercising any trust or power conferred on the Trustee under this Agreement,
including any right of the Trustee as holder of the related Secured Notes held
in such Trust provided that:
(1) such direction shall not be in conflict with any rule of law
or with this Agreement or the terms of the applicable Note Documents and
would not involve the Trustee in personal liability or expense,
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Certificateholders of such series
not taking part in such direction,
(3) the Trustee may take any other action permitted by this
Agreement deemed proper by the Trustee that is not inconsistent with
such direction, and
(4) if an Indenture Event of Default under a related Indenture
shall have occurred and be continuing, such direction shall not obligate
the Trustee to vote more than a corresponding majority of the related
Secured Notes held by the Trust in favor of directing any action by the
related Loan Trustee with respect to such Indenture Event of Default.
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Section 6.5. Waiver of Past Defaults. The Certificateholders
holding Certificates of a series evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the related Trust may on
behalf of all of the Certificateholders of such series waive any past default or
Event of Default hereunder or under the related Trust Supplement with respect to
such series and its consequences or may instruct the Trustee to waive any past
default under any related Indenture or this Agreement or the related Trust
Supplement with respect to such series and its consequences, except a default:
(1) in the deposit of any Scheduled Payment or Special Payment
under Section 4.1 or in the distribution of any payment under Section
4.2 on the Certificates of such series, or
(2) in the payment of the principal of (premium, if any) or
interest on the Secured Notes, or
(3) in respect of a covenant or provision hereof that under
Article IX hereof cannot be modified or amended without the consent of
each Certificateholder holding an Outstanding Certificate of such series
affected.
Upon any such waiver, such default shall cease to exist with
respect to the Certificates of such series and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose in respect of
such series and any direction given by the Trustee on behalf of the
30
Certificateholders of such series to the relevant Loan Trustee shall be annulled
with respect thereto; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon. Upon any
such waiver, the Trustee shall vote the Secured Notes issued under the relevant
Indenture held in the applicable Trust to waive the corresponding Indenture
Event of Default (and, if applicable, the corresponding Lease default).
Section 6.6. Right of Certificateholders to Receive Payments Not
to Be Impaired. Anything in this Agreement to the contrary notwithstanding,
including without limitation Section 6.7, the right of any Certificateholder to
receive distributions of payments required pursuant to Section 4.2 on the
applicable Certificates when due, or to institute suit for the enforcement of
any such payment on or after the applicable Regular Distribution Date or Special
Distribution Date, shall not be impaired or affected without the consent of such
Certificateholder.
Section 6.7. Certificateholders May Not Bring Suit Except Under
Certain Conditions. A Certificateholder of any series shall not have the right
to institute any suit, action or proceeding at law or in equity or otherwise
with respect to this Agreement, for the appointment of a receiver or for the
enforcement of any other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given written
notice to the Trustee of a continuing Event of Default;
(2) the Certificateholders holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not less than 25%
of the related Trust shall have requested the Trustee in writing to
institute such action, suit or proceeding and shall have offered to the
Trustee indemnity as provided in Section 7.2(e);
(3) the Trustee shall have refused or neglected to institute any
such action, suit or proceeding for 60 days after receipt of such
notice, request and offer of indemnity; and
(4) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Certificateholders
holding Certificates of such series evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the
related Trust.
It is understood and intended that no one or more of the
Certificateholders of any series shall have any right in any manner whatever
hereunder or under the related Trust Supplement or under the Certificates of
such series to (i) surrender, impair, waive, affect, disturb or prejudice any
property in the Trust Property of the related Trust or the lien of any related
Indenture on any property subject thereto, or the rights of the
Certificateholders of such series or the holders of the related Secured Notes,
(ii) obtain or seek to obtain priority over or preference to any other such
Certificateholder of such series or (iii) enforce any right under this
Agreement, except in the manner herein provided and for the equal, ratable and
common benefit of all the Certificateholders of such series subject to the
provisions of this Agreement.
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Section 6.8. Remedies Cumulative. Every remedy given hereunder to
the Trustee or to any of the Certificateholders of any series shall not be
exclusive of any other remedy or remedies, and every such remedy shall be
cumulative and in addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise.
Section 6.9. Undertaking to Pay Court Costs. All parties to this
Agreement, and each Certificateholder by his acceptance of a Certificate, shall
be deemed to have agreed that any court may in its discretion require, in any
suit, action or proceeding for the enforcement of any right or remedy under this
Agreement, or in any suit, action or proceeding against the Trustee for any
action taken or omitted by it as Trustee hereunder, the filing by any party
litigant in such suit, action or proceeding of an undertaking to pay the costs
of such suit, action or proceeding, and that such court may, in its discretion,
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, action or proceeding, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section shall not apply to (a) any suit,
action or proceeding instituted by any Certificateholder or group of
Certificateholders of any series evidencing Fractional Undivided Interests
aggregating more than 10% of the related Trust, (b) any suit, action or
proceeding instituted by any Certificateholder for the enforcement of the
distribution of payments pursuant to Section 4.2 hereof on or after the
respective due dates expressed herein or (c) any suit, action or proceeding
instituted by the Trustee.
ARTICLE VII
THE TRUSTEE
Section 7.1. Notice of Defaults. As promptly as practicable
after, and in any event within 90 days after, the occurrence of any default (as
such term is defined below) hereunder, the Trustee shall transmit by mail to the
Company, the Guarantor, any related Owner Trustees, the related Loan Trustees
and the Certificateholders holding Certificates of the related series in
accordance with Section 313(c) of the Trust Indenture Act, notice of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided that, in the case of defaults not relating to the
payment of money, the Trustee shall not give such notice until the earlier of
the time at which such default becomes an Event of Default and the expiration of
60 days from the occurrence of such default; provided, however, that, except in
the case of a default in the payment of the principal of (premium, if any) or
interest on any Secured Note, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interests of the
Certificateholders of the related series. For the purpose of this Section in
respect of any Trust, the term "default" means any event that is, or after
notice or lapse of time or both would become, an Event of Default in respect of
that Trust.
Section 7.2. Certain Rights of Trustee. Subject to the provisions
of Section 315 of the Trust Indenture Act:
32
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Guarantor or the Company
mentioned herein shall be sufficiently evidenced by a Request;
(c) whenever in the administration of this Agreement the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate of the
Guarantor or Company, any related Owner Trustee, any related Owner
Participant or any related Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such
counsel or Opinion of Counsel shall be still 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 request or
direction of any of the Certificateholders pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the cost, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture or other paper or document;
(g) the Trustee may execute any of the trusts or powers under
this Agreement or perform any duties under this Agreement either
directly or by or through agents or attorneys and the Trustee shall not
be responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Certificateholders holding Certificates of any series
evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in the related Trust relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement;
(i) the Trustee shall not be required to expend or risk its own
funds in the performance of any of its duties under this Agreement, or
in the exercise of any of its rights
33
or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk is not
reasonably assured to it;
(j) except during the continuance of an Event of Default, the
Trustee undertakes and shall be responsible to perform only such duties
as are specifically set forth herein and no implied covenants or
obligations shall be read into this Agreement against the Trustee.
Section 7.3. Not Responsible for Recitals or Issuance of
Certificates. The recitals contained herein and in the Certificates of each
series, except the certificates of authentication, shall not be taken as the
statements of the Trustee, and the Trustee assumes no responsibility for their
correctness. Subject to Section 7.14, the Trustee makes no representations as to
the validity or sufficiency of this Basic Agreement or any Trust Supplement, any
Note Documents, any Note Purchase Agreement, any Secured Notes held in a Trust
or the Certificates of any series, except that the Trustee hereby represents and
warrants that this Basic Agreement or any Trust Supplement has been, and each
Trust Supplement and each Certificate of each series will be, executed and
delivered by one of its officers who is duly authorized to execute and deliver
such document on its behalf.
Section 7.4. May Hold Certificates. The Trustee, any Paying
Agent, Registrar or any of their Affiliates or any other agent, in their
respective individual or any other capacity, may become the owner or pledgee of
Certificates, and subject to Sections 310(b) and 311 of the Trust Indenture Act,
may otherwise deal with the Guarantor, any Company, any Owner Trustee or any
Loan Trustee with the same rights it would have if it were not Trustee, Paying
Agent, Registrar or such other agent.
Section 7.5. Money Held in Trust. Money held by the Trustee or
the Paying Agent in trust hereunder or under any Trust Supplement need not be
segregated from other funds, except to the extent required herein or by law and
neither the Trustee nor the Paying Agent shall have any liability for interest
upon any such moneys except as provided for herein.
Section 7.6. Compensation and Reimbursement. The Guarantor and
the Company agree:
(1) to pay, or cause to be paid, to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law with regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein or in any Trust
Supplement, to reimburse, or cause to be reimbursed, the Trustee upon
its request for all reasonable out-of-pocket expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
provision of this Basic Agreement or any Trust Supplement (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence, wilful misconduct
34
or bad faith or as may be incurred due to the Trustee's breach of its
representations and warranties set forth in Section 7.14;
(3) to indemnify, or cause to be indemnified, the Trustee in its
individual capacity for, and to hold it harmless against, any loss,
liability or expense (other than for or with respect to any tax)
incurred without negligence, wilful misconduct or bad faith, on its
part, arising out of or in connection with the acceptance or
administration of any Trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except
(i) for any such loss, liability or expense incurred by reason of the
Trustee's breach of its representations and warranties set forth in
Section 7.14 or in any Trust Supplement or the Trustee's negligence or
wilful misconduct and (ii) as provided in Section 7.16. The Trustee
shall notify the Guarantor and the Company promptly of any claim for
which it may seek indemnity. The Guarantor or the Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee
may have separate counsel with the consent of the Guarantor or the
Company and the Guarantor and the Company will pay the reasonable fees
and expenses of such counsel. Neither the Guarantor nor the Company need
pay for any settlement made without its consent; and
(4) to indemnify, or cause to be indemnified, the Trustee, solely
in its individual capacity, for, and to hold it harmless against, any
tax (other than for or with respect to any tax referred to in the next
paragraph, provided that no indemnification shall be available with
respect to any tax attributable to the Trustee's compensation for
serving as such) incurred without negligence, willful misconduct or bad
faith, on its part, arising out of or in connection with the acceptance
or administration of any Trust, including any costs and expenses
incurred in contesting the imposition of any such tax. The Trustee, in
its individual capacity, shall notify the Guarantor and the Company
promptly of any tax for which it may seek indemnity. The Guarantor or
the Applicable shall, if it so elects, defend against the imposition of
such tax and the Trustee, in its individual capacity, shall cooperate in
the defense. The Trustee, in its individual capacity, may have separate
counsel with the consent of the Guarantor or the Company, and the
Guarantor or the Company will pay the reasonable fees and expenses of
such counsel. Neither the Guarantor nor the Company need indemnify any
taxes paid, in settlement or otherwise, without its consent.
In addition, the Trustee shall be entitled to reimbursement from,
and shall have a lien prior to the Certificates of each series upon, all
property and funds held or collected by the Trustee in its capacity as Trustee
with respect to such series or the related Trust for any tax (including any
taxes based on, or measured by, the income or receipts of such Trust) incurred
without negligence, bad faith or willful misconduct, on its part, arising out of
or in connection with the acceptance or administration of such Trust (other than
any tax attributable to the Trustee's compensation for serving as such),
including any costs and expenses incurred in contesting the imposition of any
such tax. If the Trustee reimburses itself from the Trust Property of such Trust
for any such tax it will within 30 days mail a
35
brief report setting forth the circumstances thereof to all Certificateholders
of such series as their names and addresses appear in the Register.
As security for the performance of the obligations of the
Guarantor and Company under this Section with respect to each Trust, the Trustee
shall have a lien prior to the Certificates of the related series upon all
property and funds held or collected by the Trustee in its capacity as Trustee
with respect to such Certificates and the related Trust.
Section 7.7. Corporate Trustee Required, Eligibility. Each Trust
shall at all times have a Trustee which shall be eligible to act as a trustee
under Section 310(a) of the Trust Indenture Act and shall have a combined
capital and surplus of at least $75,000,000 (or having a combined capital and
surplus in excess of $1,000,000 and the obligations of which, whether now in
existence or hereafter incurred, are fully and unconditionally guaranteed by a
corporation organized and doing business under the laws of the United States,
any State or Territory thereof or of the District of Columbia and having a
combined capital and surplus of at least $75,000,000). If such corporation
publishes reports of conditions at least annually, pursuant to law or to the
requirements of Federal, State, Territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section 7.7, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of conditions to be
published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.7 to act as Trustee of any
Trust, the Trustee shall resign immediately as Trustee of such Trust in the
manner and with the effect specified in Section 7.8.
Section 7.8. Resignation and Removal, Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee of any Trust pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 7.9.
(b) The Trustee may resign at any time as trustee of any or all
Trusts by giving written notice thereof to the Guarantor, the Company, the
Authorized Agents, the related Owner Trustees, if any, and the related Loan
Trustees. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Guarantor, the Company, the related Owner Trustees, if
any, the related Loan Trustees and the Trustee within 30 days after the giving
of such notice of resignation, the Guarantor, the Company or the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed at any time as trustee of any
Trust by Act of the Certificateholders of the related series holding
Certificates of such series evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in such Trust delivered to the
Trustee and to the Guarantor, the Company, the related Owner Trustees and the
related Loan Trustees.
(d) If at any time in respect of any Trust:
36
(1) the Trustee shall fail to comply with Section 310 of the
Trust Indenture Act after written request therefor by the Guarantor, the
Company or by any Certificateholder of the related series who has been a
bona fide Certificateholder for at least six months; or
(2) the Trustee shall cease to be eligible under Section 7.7 and
shall fail to resign after written request therefor by the Guarantor,
the Company or by any such Certificateholder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Guarantor or the Company may remove the Trustee
of such Trust or (ii) any Certificateholder of the related series who has been a
bona fide Certificateholder for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee of
such Trust.
(e) If a Responsible Officer of the Trustee shall obtain actual
knowledge of an Avoidable Tax (as hereinafter defined) in respect of any Trust
that has been or is likely to be asserted, the Trustee shall promptly notify the
Guarantor and the Company and any related Owner Trustees and shall, within 30
days of such notification, resign as Trustee of such Trust unless within such
30-day period the Trustee shall have received notice that the Guarantor or
Company in its sole discretion has agreed to pay such tax. Provided that there
is a corporation in a jurisdiction where there are no Avoidable Taxes that is
willing to act as Trustee and is eligible under Section 7.7, the Company shall
promptly appoint a successor Trustee of such Trust in a jurisdiction where there
are no Avoidable Taxes. As used herein, an "Avoidable Tax" in respect of such
Trust means a state or local tax: (i) upon (w) such Trust, (x) such Trust
Property, (y) Certificateholders of such Trust or (z) the Trustee for which the
Trustee is entitled to seek reimbursement from the Trust Property of such Trust,
and (ii) which would be avoided if the Trustee were located in another state, or
jurisdiction within a state, within the United States. A tax shall not be an
Avoidable Tax in respect of any Trust if the Guarantor or 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 Act of the Certificateholders of the
related series holding Certificates of such series evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in such
Trust delivered to the Guarantor, the Company, the related Owner Trustees, if
any, the related Loan Trustee and the retiring Trustee, the successor Trustee so
appointed shall forthwith upon its acceptance of such appointment, become the
successor Trustee of such Trust and supersede the successor Trustee of such
Trust appointed as provided above. If no successor Trustee shall have been
37
so appointed as provided above and accepted appointment in the manner
hereinafter provided, any Certificateholder who has been a bona fide
Certificateholder of the related series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee of such Trust.
(g) The successor Trustee of a Trust shall give notice of the
resignation and removal of the Trustee and appointment of the successor Trustee
by mailing written notice of such event by first-class mail, postage prepaid, to
the Certificateholders of the related series as their names and addresses appear
in the Register. Each notice shall include the name of such successor Trustee
and the address of its Corporate Trust office.
Section 7.9. Acceptance of Appointment of Successor. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Guarantor and 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 Guarantor, 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 property and money held by such retiring Trustee in respect of such
Trusts hereunder, subject nevertheless to its lien, if any, provided for in
Section 7.6 and all books and records, or true, correct and complete copies
thereof, held by such retiring Trustee in respect of such Trusts hereunder. Upon
request of any such successor Trustee, the Guarantor, the Company, the retiring
Trustee and such successor Trustee shall execute and deliver any and all
instruments containing such provisions as shall be necessary or desirable to
transfer and confirm to, and for more fully and certainly vesting in, such
successor Trustee all such rights, powers and trusts.
If a successor Trustee is appointed with respect to one or more
(but not all) Trusts, the Guarantor, the Company, the predecessor Trustee and
each successor Trustee with respect to any Trust shall execute and deliver a
supplemental agreement hereto that shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts and
duties of the predecessor Trustee with respect to the Trusts as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Basic Agreement and the applicable Trust Supplements as shall be necessary to
provide for or facilitate the administration of the Trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental agreement shall be construed as an appointment or constitution of
such Trustees as co-Trustees of the same Trust and that each such Trustee shall
be Trustee of separate Trusts.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
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Section 7.10. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
In case any Certificates shall have been executed or
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such executing or authenticating
Trustee may adopt such execution or authentication and deliver the Certificates
so executed or authenticated with the same effect as if such successor Trustee
had itself executed or authenticated such Certificates.
Section 7.11. Maintenance of Agencies. (a) With respect to each
series of Certificates unless otherwise provided in the applicable Trust
Supplement, there shall at all times be maintained in the Borough of Manhattan,
The City of New York, an office or agency where Certificates of such series may
be presented or surrendered for registration of transfer or for exchange, and
for payment thereof and where notices and demands to or upon the Trustee in
respect of such Certificates or of this Basic Agreement or the related Trust
Supplement may be served. Such office or agency shall be initially at Wilmington
Trust Company, [address to be provided] New York, New York. Written notice of
the location of each such other office or agency and of any change of location
thereof shall be given by the Trustee to the Guarantor, the Company, any Owner
Trustees, the Loan Trustees and the Certificateholders of such series. In the
event that no such office or agency shall be maintained or no such notice of
location or of change of location shall be given, presentations and demands may
be made and notices may be served at the Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder with respect to the Certificates of each series. Each such Authorized
Agent shall be a bank or trust company, shall be a corporation organized and
doing business under the laws of the United States or any state, with a combined
capital and surplus of at least $75,000,000, or a corporation the obligations of
which are guaranteed by a corporation organized and doing business under the
laws of the United States or any state, with a combined capital and surplus of
at least $75,000,000, and shall be authorized under such laws to exercise
corporate trust powers, subject to supervision by Federal or state authorities.
The Trustee shall initially be the Paying Agent and, as provided in Section 3.4,
Registrar hereunder with respect to the Certificates of each series. Each
Registrar shall furnish to the Trustee and the Company, at stated intervals of
not more than six months, and at such other times as the Trustee or the Company
may request in writing, a copy of the Register maintained by such Registrar.
(c) Any corporation into which any Authorized Agent may be merged
or converted or with which it may be consolidated or any corporation resulting
from any merger, consolidation or conversion to which any Authorized Agent shall
be a party, or any corporation succeeding to the
39
corporate trust business of any Authorized Agent, shall be the successor of such
Authorized Agent hereunder, if such successor corporation is otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the parties hereto or such Authorized Agent or such successor
corporation.
(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Trustee, the Guarantor, the Company, any related
Owner Trustees and the related Loan 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 termination to such Authorized Agent and to
the Trustee. Upon the resignation or termination of an Authorized Agent or in
case at any time any such Authorized Agent shall cease to be eligible under this
Section (when, in either case, no other Authorized Agent performing the
functions of such Authorized Agent shall have been appointed), the Company shall
promptly appoint one or more qualified successor Authorized Agents, reasonably
satisfactory to the Trustee, to perform the functions of the Authorized Agent
that has resigned or whose agency has been terminated or who shall have ceased
to be eligible under this Section. The Company shall give written notice of any
such appointment made by it to the Trustee, any related Owner Trustees and the
related Loan Trustees; and in each case the Trustee shall mail notice of such
appointment to all Certificateholders of the related series as their names and
addresses appear on the Register for such series.
(e) The Guarantor and 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 7.12. Money for Certificate Payments to Be Held in Trust.
All moneys deposited with any Paying Agent for the purpose of any payment on
Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of this
Section. Moneys so deposited and held in trust shall constitute a separate trust
fund for the benefit of the Certificateholders with respect to which such money
was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.13. Registration of Secured Notes in Trustee's Name.
The Trustee agrees that all Secured Notes to be held in a Trust and Permitted
Investments, if any, shall be issued in the name of the Trustee as trustee for
the applicable Trust or its nominee and held by the Trustee, or, if not so held,
the Trustee or its nominee shall be reflected as the owner of such Secured Notes
or Permitted Investments, as the case may be, in the register of the issuer of
such Secured Notes or Permitted Investments. In no event shall the Trustee
invest in, or hold, such Secured Notes or Permitted Investments in a manner that
would cause the Trustee not to have the ownership interest in
40
such Secured Notes or Permitted Investments under the applicable provisions of
the Uniform Commercial Code in effect where the Trustee holds such Secured Notes
or Permitted Investments or other applicable law then in effect.
Section 7.14. Representations and Warranties of Trustee. The
Trustee hereby represents and warrants that:
(i) the Trustee is a state chartered banking corporation duly
organized, validly existing, and in good standing under the laws of
Delaware;
(ii) the Trustee has full power, authority and legal right to
execute, deliver, and perform this Basic Agreement and has taken all
necessary action to authorize the execution, delivery, and performance
by it of this Basic Agreement;
(iii) the execution, delivery and performance by the Trustee of
this Basic Agreement (a) will not violate any provision of any United
States or Delaware law or regulation governing the banking and trust
powers of the Trustee or any order, writ, judgment or decree of any
court, arbitrator or governmental authority applicable to the Trustee or
any of its assets, (b) will not violate any provision of the Charter
Documents or by-laws of the Trustee, and (c) will not violate any
provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of any lien on
any properties included in the Trust Property of any Trust pursuant to
the provisions of any mortgage, indenture, contract, agreement or other
undertaking to which it is a party, which violation, default or lien
could reasonably be expected to have an adverse effect on the Trustee's
performance or ability to perform its duties hereunder or thereunder or
on the transactions contemplated herein or therein;
(iv) the execution, delivery and performance by the Trustee of
this Basic Agreement will not require the authorization, consent or
approval of, the giving of notice to, the filing or registration with,
or the taking of any other action in respect of, any United States or
Massachusetts governmental authority or agency regulating the banking
and corporate trust activities of the Trustee; and
(v) this Basic Agreement has been duly executed and delivered by
the Trustee and constitute the legal, valid, and binding agreements of
the Trustee, enforceable against it in accordance with their terms,
provided that enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and (ii) general principles
of equity.
Section 7.15. Withholding Taxes, Information Reporting. As to the
Certificates of any series, the Trustee, as trustee of the related grantor trust
created by this Agreement, shall exclude and withhold from each distribution of
principal, premium, if any, and interest and other amounts due under this
Agreement or under the Certificates of such series any and all withholding taxes
applicable
41
thereto as required by law. The Trustee agrees to act as such withholding agent
and, in connection therewith, whenever any present or future taxes or similar
charges are required to be withheld with respect to any amounts payable in
respect of the Certificates of such series, to withhold such amounts and timely
pay the same to the appropriate authority in the name of and on behalf of the
Certificateholders of such series, that it will file any necessary withholding
tax returns or statements when due, and that, as promptly as possible after the
payment thereof, it will deliver to each such Certificateholder appropriate
documentation showing the payment thereof, together with such additional
documentary evidence as such Certificateholders of such series may reasonably
request from time to time. The Trustee agrees to file any other information
reports as it may be required to file under United States law.
Section 7.16. Trustee's Liens. The Trustee in its individual
capacity agrees that it will, in respect of each Trust created by this
Agreement, at its own cost and expense (and without right of indemnity
hereunder, including Section 7.6), promptly take any action as may be necessary
to duly discharge and satisfy in full any mortgage, pledge, lien, charge,
encumbrance, security interest or claim ("Trustee's Liens") on or with respect
to the Trust Property of such Trust that is attributable to the Trustee either
(i) in its individual capacity and that is unrelated to the transactions
contemplated by this Agreement, the related Note Purchase Agreements or the
related Note Documents, or (ii) as Trustee hereunder or in its individual
capacity and that arises out of acts or omissions that are not contemplated by
this Agreement.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.1. Names and Addresses of Certificateholders. The
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 such series, in each case as of a date
not more than 15 days prior to the time such list is furnished; provided,
however, that so long as the Trustee is the sole Registrar for such series, no
such list need be furnished; and provided further, however, that no such list
need be furnished for so long as a copy of the Register is being furnished to
the Trustee pursuant to Section 7.11(b).
Section 8.2. Preservation of Information, Communications to
Certificateholders. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders of each
series contained in the most recent list furnished to the Trustee as provided in
Section 7.11(b) or Section 8.1, as the case may be, and the names and addresses
of Certificateholders of each series received by the Trustee in its capacity as
Registrar, if
42
so acting. The Trustee may destroy any list furnished to it as provided in
Section 7.11(b) or Section 8.1, as the case may be, upon receipt of a new list
so furnished.
Section 8.3. Reports by Trustee. Within 60 days after May 15 of
each year commencing with the first full year following the issuance of any
series of Certificates, the Trustee shall transmit to the Certificateholders of
each series, in the manner provided pursuant to Section 313(c) of the Trust
Indenture Act, a brief report dated as of such May 15, if required by Section
313(a) of the Trust Indenture Act. The Trustee shall also transmit to
Certificateholders such reports, if any, as may be required pursuant to Section
313(b) of the Trust Indenture Act at the times and in the manner provided
pursuant thereto and to Section 313(c) thereof.
Section 8.4. Reports by the Guarantor and the Company. The
Guarantor and the Company shall:
(a) file with the Trustee, within 30 days after the Guarantor or
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) that the Guarantor or 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 Guarantor or 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 that may be required pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended, in
respect of a security listed and registered on a national securities
exchange as may be prescribed in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with the
rules and regulations prescribed by the SEC, such additional
information, documents and reports with respect to compliance by the
Guarantor or the Company with the conditions and covenants provided for
in this Agreement, as may be required by such rules and regulations,
including, in the case of annual reports, if required by such rules and
regulations, certificates or opinions of independent public accountants,
conforming to the requirements of Section 1.2;
(c) transmit to all Certificateholders of each series, in the
manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, such summaries of any information, documents and reports
required to be filed by the Guarantor and the Company pursuant to
subsections (a) and (b) of this Section 8.4, as may be required by rules
and regulations prescribed by the SEC; and
(d) furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer as
43
to his or her knowledge of the Guarantor's or 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 9.1. Supplemental Agreements With Consent of
Certificateholders. Without the consent of the Certificateholders of any series,
the Guarantor and the Company (provided that supplemental agreements that only
affect one or more specific Trusts shall only be entered into by the Company for
such Trust or Trusts) may, and the Trustee (subject to Section 9.3) shall, at
any time and from time to time enter into one or more agreements supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to provide for the formation of a Trust, the issuance of a
series of Certificates and the other matters contemplated by Section
2.1(b); or
(2) to evidence the succession of another corporation to the
Guarantor or the Company and the assumption by any such successor of the
covenants of the Guarantor or the Company contained in this Agreement;
or
(3) to add to the covenants of the Guarantor or the Company for
the benefit of the Certificateholders of any series, or to surrender any
right or power in this Agreement conferred upon the Guarantor or the
Company; or
(4) to correct or supplement any provision or to cure any
ambiguity in this Agreement that may be defective or inconsistent with
any other provision herein or in any Trust Supplement or to make any
other provisions with respect to matters or questions arising under this
Agreement, provided that any such action shall not adversely affect the
interests of the Certificateholders of any series of Certificates
Outstanding or to correct any mistake; or
(5) to modify, eliminate or add to the provisions of this
Agreement to such extent as shall be necessary to continue the
qualification of this Agreement (including any supplemental agreement)
under the Trust Indenture Act, or under any similar Federal statute
hereafter enacted, or to add to this Agreement such other provisions as
may be expressly permitted by the Trust Indenture Act, excluding,
however, the provisions referred to in Section 316(a)(2) of the Trust
Indenture Act as in effect at the date as of which this instrument was
executed or any corresponding provision in any similar Federal statute
hereafter enacted; or
44
(6) to evidence and provide for the acceptance of appointment
under this Agreement by a successor Trustee with respect to one or more
Trusts and to add to or change any of the provisions of this Agreement
as shall be necessary to provide for or facilitate the administration of
the Trusts hereunder and thereunder by more than one Trustee, pursuant
to the requirements of Section 7.9;
(7) to correct or supplement the description of any property
constituting property of such Trust; or
(8) to make any other amendments or modifications hereto,
provided such amendments or modifications shall only apply to
Certificates of one or more series to be thereafter issued.
Section 9.2. Supplemental Agreements with Consent of
Certificateholders. With respect to each separate Trust and the series of
Certificates relating thereto, with the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust, by Act of said Certificateholders
delivered to the Company and the Trustee, the Guarantor and Company may (with
the consent of the Owner Trustee, if any, relating to such Certificates, which
consent shall not be unreasonably withheld), and the Trustee (subject to Section
9.3) shall, enter into an agreement or agreements supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement to the extent applicable to such
Certificateholders or of modifying in any manner the rights and obligations of
such Certificateholders under this Agreement; provided, however, that no such
supplemental agreement shall, without the consent of the Certificateholder of
each Outstanding Certificate of such series affected thereby;
(1) reduce in any manner the amount of, or delay the timing of,
any receipt by the Trustee of payments on the Secured Notes held in such
Trust or distributions that are required to be made herein on any
Certificate of such series, or change any date of payment on any
Certificate of such series, or change the place of payment where, or the
coin or currency in which, any Certificate of such series is payable, or
impair the right to institute suit for the enforcement of any such
payment or distribution on or after the Regular Distribution Date or
Special Distribution Date applicable thereto; or
(2) permit the disposition of any Secured Note in the Trust
Property of such Trust except as permitted by this Agreement, or
otherwise deprive such Certificateholder of the benefit of the ownership
of the Secured Notes in such Trust; or
(3) reduce the percentage of the aggregate Fractional Undivided
Interests of such Trust that is required for any such supplemental
agreement, or reduce such percentage required for any waiver (of
compliance with certain provisions of this Agreement or certain defaults
hereunder and their consequences) provided for in this Agreement; or
45
(4) modify any of the provisions of this Section 9.2 or Section
6.5, except to increase any percentage required for such consent or
waiver or to provide that certain other provisions of this Agreement
cannot be modified or waived without the consent of the
Certificateholder of each Certificate of such series affected thereby.
It shall not be necessary for any Act of such Certificateholders
under this Section to approve the particular form of any proposed supplemental
agreement, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 9.3. Documents Affecting Trustee. If in the opinion of
the Trustee any document required to be executed by it pursuant to the terms of
Section 9.1 or 9.2 affects any interest, right, duty, immunity or indemnity in
favor of the Trustee under this Basic Agreement or any Trust Supplement, the
Trustee may in its discretion decline to execute document.
Section 9.4. Execution of Supplemental Agreements. In executing,
or accepting the additional trusts created by, any supplemental agreement
permitted by this Article or the modifications thereby of the trusts created by
this Agreement, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Agreement.
Section 9.5. Effect of Supplemental Agreements. Upon the
execution of any supplemental agreement under this Article, this Basic Agreement
shall be modified in accordance therewith, and such supplemental agreement shall
form a part of this Basic Agreement for all purposes; and every
Certificateholder of each series theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby to the extent applicable to such
series.
Section 9.6. Conformity with Trust Indenture Act. Every
supplemental agreement executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.7. Reference in Certificates to Supplemental
Agreements. Certificates of each series authenticated and delivered after the
execution of any supplemental agreement applicable to such series pursuant to
this Article may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental agreement; and, in such case, suitable
notation may be made upon Outstanding Certificates of such series after proper
presentation and demand.
46
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.1. Amendments and Supplements to Indenture and Other
Note Documents. In the event that the Trustee, as holder of any Secured Notes in
trust for the benefit of the Certificateholders of any series, receives a
request for a consent to any amendment, modification, waiver or supplement under
any related Indenture or other related Note Document or any related Note
Purchase Agreement, the Trustee shall forthwith send a notice of such proposed
amendment, modification, waiver or supplement, to each Certificateholder of such
series registered on the Register as of such date. The Trustee shall request
from the Certificateholders of such series Directions as to (i) whether or not
to direct the Trustee to take or refrain from taking any action that a holder of
such Secured Note has the option to direct, (ii) whether or not to give or
execute any waivers, consents, amendments, modifications or supplements as a
holder of such Secured Note and (iii) how to vote the Secured Notes if a vote
has been called for with respect thereto. Provided such a request for
Certificateholder Direction shall have been made, in directing any action or
casting any vote or giving any consent as the holder of any such Secured Notes,
the Trustee shall vote or consent with respect to such Secured Note, subject to
Section 6.5, in the same proportion as the Certificates of such series were
actually voted by Acts of Certificateholders delivered to the Trustee prior to
two Business Days before the Trustee directs such action or casts such vote or
gives such consent. Notwithstanding the foregoing, but subject to Section 6.4,
in the case that an Event of Default hereunder with respect to such series shall
have occurred and be continuing, the Trustee may, in its own discretion and at
its own direction, consent and notify the relevant Loan Trustee of such consent
to any amendment, modification, waiver or supplement under the relevant
Indenture or any other related Note Document.
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.1. Termination of the Trusts. In respect of each Trust
created by this Basic Agreement as supplemented by a related Trust Supplement,
the respective obligations and responsibilities of the Guarantor, the Company
and the Trustee created hereby and thereby and such Trust shall terminate upon
the distribution to all Holders of the Certificates of the series of such Trust
and the Trustee of all amounts required to be distributed to them pursuant to
this Basic Agreement and such Trust Supplement and the disposition of all
property held as part of the Trust Property of the related series of such Trust;
provided, however, that in no event shall such Trust continue beyond the final
expiration date determined as provided in such Trust Supplement.
Notice of any termination of a Trust, specifying the applicable
Regular Distribution Date (or applicable Special Distribution Date, as the case
may be) upon which the Certificateholders of the series issued with respect to
such Trust may surrender their Certificates to
47
the Trustee for payment of the final distribution and cancellation, shall be
mailed promptly by the Trustee to Certificateholders of such series not earlier
than the minimum number of days and not more than the maximum number of days
specified therefor in the related Trust Supplement preceding such final
distribution. Such notice in addition shall specify (A) the Regular Distribution
Date (or Special Distribution Date, as the case may be) upon which the proposed
final payment of the Certificates of such series will be made upon presentation
and surrender of Certificates of such series at the office or agency of the
Trustee therein specified, (B) the amount of any such proposed final payment,
and (C) that the Record Date otherwise applicable to such Regular Distribution
Date (or Special Distribution Date, as the case may be) is not applicable,
payments being made only upon presentation and surrender of the Certificates of
such series at the office or agency of the Trustee therein specified. The
Trustee shall give such notice to the Registrar at the time such notice is given
to Certificateholders of such series. Upon presentation and surrender of the
Certificates of such series, the Trustee shall cause to be distributed to
Certificateholders of such series amounts distributable on such Regular
Distribution Date (or Special Distribution Date, as the case may be) pursuant to
Section 4.2.
In the event that all of the Certificateholders of such series
shall not surrender their Certificates for cancellation within six months after
the date specified in the above-mentioned written notice , the Trustee shall
give a second written notice to the remaining Certificateholders of such series
to surrender their Certificates for cancellation and receive the final
distribution with respect thereto. In the event that any money held by the
Trustee for the payment of distributions on the Certificates of such series
shall remain unclaimed for two years (or such lesser time as the Trustee shall
be satisfied, after sixty days' notice from the Company, is one month prior to
the escheat period provided under applicable law) after the final distribution
date with respect thereto, the Trustee shall pay to each Loan Trustee the
appropriate amount of money relating to such Loan Trustee and shall give written
notice thereof to the related Owner Trustees, if any, the Guarantor and the
Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1. Limitation on Rights of Certificateholders. The
default or incapacity of any Certificateholder of any series shall not operate
to terminate this Agreement, or the related Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding up of the related Trust, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
Section 12.2. Certificates Nonassessable and Fully Paid.
Certificateholders of each series shall not be personally liable for obligations
of the related Trust, the Fractional Undivided Interests represented by the
Certificates of such series shall be nonassessable for any losses or expenses of
such Trust or for any reason whatsoever, and Certificates of such series upon
48
authentication thereof by the Trustee pursuant to Section 3.02 are and shall be
deemed fully paid. No Certificateholder of such series shall have any right
(except as expressly provided herein) to vote or in any manner otherwise control
the operation and management of the related Trust Property, the related Trust,
or the obligations of the parties hereto, nor shall anything set forth herein,
or contained in the terms of the Certificates of such series, be construed so as
to constitute the Certificateholders of such series from time to time as
partners or members of an association.
Section 12.3. Notices. (a) Unless otherwise specifically provided
herein or in the applicable Trust Supplement with respect to any Trust, all
notices required under the terms and provisions of this Basic Agreement or such
Trust Supplement with respect to such Trust shall be in English and in writing,
and any such notice may be given by United States mail, courier service,
telegram, telex, telemessage, telecopy, telefax, cable or facsimile (confirmed
by telephone or in writing in the case of notice by telegram, telex,
telemessage, telecopy, telefax, cable or facsimile) or any other customary means
of communication, and any such notice shall be effective when delivered or, if
mailed, three days after deposit in the United States mail with proper postage
for ordinary mail prepaid,
if to the Guarantor or any Company, to the Guarantor or the
Company at:
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee, to: Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Department
Xxxx St Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(b) The Guarantor, 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
49
such series. Failure so to mail a notice or communication or any defect in such
notice or communication shall not affect its sufficiency with respect to other
Certificateholders of such series.
(d) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is conclusively presumed to have been duly
given, whether or not the addressee receives it.
(e) If the Guarantor or the Company mails a notice or
communication to the Certificateholders of such series, it shall mail a copy to
the Trustee and to each Paying Agent for such series at the same time.
(f) Notwithstanding the foregoing, all communications or notices
to the Trustee shall be deemed to be given only when received by a Responsible
Officer of the Trustee.
(g) The Trustee shall promptly furnish the Guarantor and Company
with a copy of any demand, notice or written communication received by the
Trustee hereunder from any Certificateholder, Owner Trustee or Loan Trustee.
(h) The Trustee shall provide to the Guarantor a copy of any
notice or communication it gives to the Company contemporaneously with giving
such notice or communication to the Company.
Section 12.4. Governing Law. THIS BASIC AGREEMENT HAS BEEN
DELIVERED IN THE STATE OF NEW YORK AND THIS BASIC AGREEMENT AND THE CERTIFICATES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.5. Severability of Provisions. If any one or more of
the covenants, agreements, provisions, or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or any Trust, or of
the Certificates of any series or the rights of the Certificateholders thereof.
Section 12.6. Trust Indenture Act Controls. This Agreement is
subject to the provisions of the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions.
50
Section 12.7. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 12.8. Successors and Assigns. All covenants, agreements,
representations and warranties in this Agreement by the Trustee, the Guarantor
and 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 12.9. Benefits of Agreement. Nothing in this Agreement or
in the Certificates of any series, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the
Certificateholders of each series, any benefit or any legal or equitable right,
remedy or claim under this Agreement, except as expressly provided in this
Agreement.
Section 12.10. Legal Holidays. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate of
any series shall not be a Business Day with respect to such series, then
(notwithstanding any other provision of this Agreement) payment need not be made
on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on such Regular Distribution Date or Special
Distribution Date, and no interest shall accrue during the intervening period.
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.
51
IN WITNESS WHEREOF, the Guarantor, the Company and the Trustee
have caused this Basic Agreement to be duly executed by their respective
officers or authorized representatives, all as of the day and year first above
written.
FORT XXXXX CORPORATION
By
--------------------------------------
Title:
FORT XXXXX OPERATING COMPANY
By
--------------------------------------
Title:
WILMINGTON TRUST COMPANY
as Trustee
By
--------------------------------------
Title:
EXHIBIT A
---------
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.
FORT XXXXX CORPORATION 1998-__ PASS THROUGH TRUST
Pass Through Certificate, Series 1998-__
Final Distribution Date: ____________, 20__
evidencing a fractional undivided interest in a trust, the
property of which includes certain secured notes each issued in
respect of a Leased Property leased to Fort Xxxxx Operating
Company, all of whose obligations are guaranteed by Fort Xxxxx
Corporation.
Certificate CUSIP No.
No. __ _______________
$_____________ Fractional Undivided Interest
representing ______% of the Trust per $1,000
Reference Principal Amount
THIS CERTIFIES THAT CEDE & CO., as nominee of the Depository
Trust Company, for value received, is the registered owner of a Fractional
Undivided Interest in the amount of ______________________________________
($__________) (the "Reference Principal Amount") in the Fort Xxxxx Corporation
1998-_ Pass Through Trust (the "Trust") created by ____________________________,
as trustee (the "Trustee"), pursuant to a Pass Through Trust Agreement, dated as
of ____________, 1998 (the "Basic Agreement"), as supplemented by the Pass
Through Trust Supplement No. 1998-__ thereto dated as of ____________, 1998
(collectively, the "Agreement"), among the Trustee, Fort Xxxxx Corporation, a
Virginia corporation (the "Guarantor") and Fort Xxxxx Operating Company, a
Virginia 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 "Pass Through Certificates, Series 1998-__" (herein called the
"Certificates"). This Certificate is issued under and is subject to the terms,
provisions, and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the
2
acceptance hereof assents and by which such Certificateholder is bound. The
property of the Trust includes certain Secured Notes (the "Trust Property").
Each issue of the Secured Notes is issued in respect of a [Leased Property]
leased to the Company all of whose obligations are guaranteed by the Guarantor.
The Certificates represent fractional undivided interests in
the Trust and the Trust Property, and have no rights, benefits or interest in
respect of any other separate trust established pursuant to the terms of the
Basic Agreement for any other series of certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Agreement,
from funds then available to the Trustee, there will be distributed on each
__________ __ and __________ __ (a "Regular Distribution Date"), commencing on
___________, 199__, to the Person in whose name this Certificate is registered
at the close of business on the 15th day preceding the applicable Regular
Distribution Date, an amount in respect of the Scheduled Payments on the Secured
Notes due on such Regular Distribution Date, the receipt of which has been
confirmed by the Trustee, equal to the product of the percentage interest in the
Trust evidenced by this Certificate and an amount equal to the sum of such
Scheduled Payments. Subject to and in accordance with the terms of the
Agreement, in the event that Special Payments on the Secured Notes are received
by the Trustee, from funds then available to the Trustee, there shall be
distributed on the applicable Special Distribution Date, to the Person in whose
name this Certificate is registered at the close of business on the 15th day
preceding such Special Distribution Date, an amount in respect of such Special
Payments on the Secured Notes, the receipt of which has been confirmed by the
Trustee, equal to the product of the percentage interest in the Trust evidenced
by this Certificate and an amount equal to the sum of such Special Payments so
received. If a Regular Distribution Date or Special Distribution Date is not a
Business Day, distribution shall be made on the immediately following Business
Day with the same force and effect as if made on such Regular Distribution Date
or Special Distribution Date and no interest shall accrue during the intervening
period. The 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.
The Certificates do not represent an obligation of, or an
obligation guaranteed by, or an interest in, the Guarantor, the Company or the
Trustee or any affiliate thereof. The Certificates are limited in right of
payment, all as more specifically set forth herein on the face
3
hereof and in the Agreement. All payments or distributions made to
Certificateholders under the Agreement shall be made only from the Trust
Property and only to the extent that the Trustee shall have sufficient income or
proceeds from the Trust Property to make such payments in accordance with the
terms of the Agreement. Each Holder of this Certificate, by its acceptance
hereof, agrees that it will look solely to the income and proceeds from the
Trust Property to the extent available for distribution to such
Certificateholder as provided in the Agreement. This Certificate does not
purport to summarize the Agreement and reference is made to the Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby. A copy of the Agreement may be examined
during normal business hours at the principal office of the Trustee, and at such
other places, if any, designated by the Trustee, by any Certificateholder upon
request.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Guarantor, the Company and the rights of the
Certificateholders under the Agreement at any time with the consent of the
Holders holding-Certificates evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the Trust. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Certificateholder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Certificateholders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Register upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee in its capacity as
Registrar, or by any successor Registrar, duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Registrar duly executed by the Holder hereof or such Certificateholder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations evidencing the same aggregate Fractional Undivided
Interest in the Trust will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $1,000 Fractional Undivided Interest
and integral multiples thereof except that one Certificate may be in a
denomination of less than $1,000. As provided in the Agreement and subject to
certain limitations therein set forth, the Certificates are exchangeable 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.
4
The Guarantor, the Company, the Trustee, the Registrar and any
agent of the Trustee or the Registrar may treat the person in whose name this
Certificate is registered on the Register as the owner hereof for all purposes,
and neither the Guarantor, the Company, the Trustee, the Registrar nor any such
agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
FORT XXXXX CORPORATION 1998-__
PASS THROUGH TRUST
By:
------------------------------,
as Trustee
By:
------------------------------
Title:
Dated: ___________, 1998
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-mentioned Agreement.
-----------------------------------,
as Trustee
By:
---------------------------------
Authorized Officer
