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Exhibit 4.3a
AES EASTERN ENERGY, L.P.
and
BANKERS TRUST COMPANY,
as Pass Through Trustee
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PASS THROUGH TRUST AGREEMENT A
Dated as of May 1, 1999
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$282,000,000
Series 0000-X Xxxx Xxxxxxx Xxxxx
Xxxx Through Certificates, Series 1999-A
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions.................................................. 2
Section 1.2 Compliance Certificates and Opinions......................... 7
Section 1.3 Form of Documents Delivered to Pass Through Trustee.......... 8
Section 1.4 Acts of Holders.............................................. 8
ARTICLE II
ACQUISITION OF LESSOR NOTES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.1 Issuance of Certificates; Acquisition of Lessor Notes....... 10
Section 2.2 Acceptance by Pass Through Trustee.......................... 11
Section 2.3 Limitation of Powers........................................ 11
ARTICLE III
THE CERTIFICATES
Section 3.1 Form, Denomination and Execution of Certificates............ 11
Section 3.2 Authentication of Certificate............................... 12
Section 3.3 Temporary Certificates...................................... 12
Section 3.4 Registration of Transfer and Exchange of Certificates....... 13
Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates........... 15
Section 3.6 Persons Deemed Owners....................................... 15
Section 3.7 Cancellation................................................ 15
Section 3.8 Limitation of Liability for Payments........................ 15
Section 3.9 Book-Entry and Definitive Certificates...................... 16
Section 3.10Form of Certification....................................... 19
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.1 Certificate Account and Special Payments Account............ 19
Section 4.2 Distributions from Certificate Account and Special
Payments Account............................................ 20
Section 4.3 Statements to Certificateholders............................ 21
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Section 4.4 Investment of Special Payment Moneys........................ 22
ARTICLE V
THE COMPANY
Section 5.1 Reports..................................................... 22
ARTICLE VI
DEFAULT
Section 6.1 Events of Default........................................... 23
Section 6.2 Incidents of Sale of Lessor Notes........................... 24
Section 6.3 Judicial Proceedings Instituted by Pass Through Trustee..... 24
Section 6.4 Control by Certificateholders............................... 25
Section 6.5 Waiver of Defaults.......................................... 25
Section 6.6 Undertaking to Pay Court Costs.............................. 26
Section 6.7 Right of Certificateholders to Receive Payments Not to Be
Impaired.................................................... 27
Section 6.8 Certificateholders May Not Bring Suit Except Under Certain
Condition................................................... 27
Section 6.9 Remedies Cumulative......................................... 27
ARTICLE VII
THE PASS THROUGH TRUSTEE
Section 7.1 Certain Duties and Responsibilities......................... 28
Section 7.2 Notice of Defaults.......................................... 29
Section 7.3 Certain Rights of Pass Through Trustee...................... 29
Section 7.4 Not Responsible for Recitals; Issuance of Certificates...... 31
Section 7.5 May Hold Certificates....................................... 31
Section 7.6 Money Held in Pass Through Trust............................ 31
Section 7.7 Compensation, Reimbursement and Indemnification............. 31
Section 7.8 Corporate Trustee Required; Eligibility..................... 32
Section 7.9 Resignation and Removal: Appointment of Successor........... 32
Section 7.10 Acceptance of Appointment by Successor..................... 34
Section 7.11 Merger, Conversion, Consolidation or Succession to
Business................................................... 34
Section 7.12 Maintenance of Agencies.................................... 35
Section 7.13 Money for Certificate Payments to Be Held in Trust......... 36
Section 7.14 Registration of Lessor Notes in Pass Through Trustee's
Name....................................................... 36
Section 7.15 Withholding Taxes; Information Reporting................... 37
Section 7.16 Pass Through Trustee's Liens............................... 37
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ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS
Section 8.1 The Company to Furnish Pass Through Trustee with Names and
Addresses of Certificateholder.............................. 37
Section 8.2 Preservation of Information................................. 38
Section 8.3 Records by the Company...................................... 38
Section 8.4 Reports by the Pass Through Trustee......................... 38
ARTICLE IX
SUPPLEMENTAL TRUST AGREEMENTS
Section 9.1 Supplemental Trust Agreement Without Consent of
Certificateholder........................................... 38
Section 9.2 Supplemental Trust Agreements with Consent of
Certificateholders.......................................... 39
Section 9.3 Documents Affecting Immunity or Indemnity................... 40
Section 9.4 Execution of Supplemental Trust Agreements.................. 40
Section 9.5 Effect of Supplemental Trust Agreements..................... 41
Section 9.6 Reference in Certificates to Supplemental Trust Agreements.. 41
ARTICLE X
AMENDMENTS TO INDENTURES AND
OTHER LESSOR NOTE DOCUMENTS
Section 10.1 Amendments and Supplements to Indenture and Other Lessor
Note Documents............................................. 41
ARTICLE XI
TERMINATION OF PASS THROUGH TRUST
Section 11.1 Termination of the Pass Through Trust...................... 42
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1 Limitation on Rights of Certificateholders................. 43
Section 12.2 Certificates Nonassessable and Fully Paid.................. 43
Section 12.3 Notices.................................................... 43
Section 12.4 Governing Law.............................................. 43
Section 12.5 Severability of Provisions................................. 44
Section 12.6 Effect of Headings and Table of Contents................... 44
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Section 12.7 Successors and Assign...................................... 44
Section 12.8 Benefits of Pass Through Trust Agreement................... 44
Section 12.9 Legal Holidays............................................. 44
Section 12.10 Counterparts.............................................. 44
SCHEDULE 1 List of Participation Agreements
EXHIBIT A Form of Pass Through Certificate
EXHIBIT B Form of Pass Through Trustee's Certificate of Authentication
EXHIBIT C Form of Transfer Certificate
EXHIBIT D Form of Purchase Letter for Institutional Accredited Investors
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PASS THROUGH TRUST AGREEMENT A, dated as of May 1, 1999, with respect to
the formation of the Series 1999-A Pass Through Trust between AES Eastern
Energy, L.P., a Delaware limited partnership, and Bankers Trust Company, a New
York banking corporation, as Pass Through Trustee,
W I T N E S S E T H:
WHEREAS, twelve Owner Trusts, each acting on behalf of an Owner
Participant, have each purchased an Undivided Interest in one of the Facilities
from the Company and are leasing such Undivided Interests to the Company
pursuant to twelve separate Lease Transactions (as such terms and certain other
capitalized terms used herein are defined below);
WHEREAS, pursuant to each Lease Transaction, an Owner Trust will issue, on
a non-recourse basis, Lessor Notes under a Lease Indenture in order to finance
and refinance a portion of the purchase price for the related Undivided
Interest;
WHEREAS, pursuant to the terms and conditions of this Pass Through Trust
Agreement and the Participation Agreement relating to each Lease Transaction,
Lessor Notes are to be sold to the Pass Through Trust by the applicable Owner
Trust, and the Pass Through Trust will purchase such Lessor Notes and will hold
such Lessor Notes in trust for the benefit of the Certificateholders;
WHEREAS, the Company and the Pass Through Trustee, upon the execution and
delivery of this Pass Through Trust Agreement, hereby declare the creation of
this Pass Through Trust for the benefit of the Certificateholders, and the
initial Certificateholders, as the grantors of the Pass Through Trust and by
their respective acceptances of the Certificates, join in the creation of this
Pass Through Trust with the Pass Through Trustee; and
WHEREAS, to facilitate the sale of the Lessor Notes to the Pass Through
Trust and the purchase of the Lessor Notes by the Pass Through Trust, the
Company is undertaking to perform certain administrative and ministerial duties
hereunder and is also undertaking to pay the fees and expenses of the Pass
Through Trustee.
NOW, THEREFORE,
In consideration of the foregoing premises, the mutual agreements herein
contained, and of the other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
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DEFINITIONS
Definitions. Capitalized terms used in this Pass Through Trust
Agreement, including the recitals, and not otherwise defined herein shall have
the respective meanings set forth in Appendix A to the applicable Participation
Agreement, unless the context hereof shall otherwise require. The general
provisions of Appendix A to such Participation Agreement shall also apply to the
terms used in this Pass Through Trust Agreement that are specifically defined
herein.
As used in this Pass Through Trust Agreement, the following
terms shall have the respective meanings assigned thereto as follows:
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.4.
"Authorized Agent" means any Paying Agent or Registrar.
"Book-Entry Certificate" means a beneficial interest in the Certificates,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 3.9.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which commercial banking institutions are authorized or required by law,
regulation or executive order to be closed in New York, New York, the city and
the state in which the Corporate Trust Department of the Trustee is located or
the city and state in which the Corporate Trust Office of the Indenture Trustee
or the Pass Through Trustees is located.
"Cedel" has the meaning specified in Section 3.9.
"Certificate" means any one of the certificates executed and authenticated
by the Pass Through Trustee, substantially in the form of Exhibit A hereto.
"Certificate Account" means that account or accounts created and
maintained pursuant to Section 4.1(a).
"Certificate Owner" means, when used in Section 3.9, the Person for whom a
Clearing Agency Participant acts.
"Certificate Owner Request" means a request to the Pass Through Trustee to
receive the reports and other information the Company or any other Person is
required to furnish to the Pass Through Trustee pursuant to the Operative
Documents, which request certifies that the Person making the request is a
Certificateholder or Certificate Owner. Any Certificateholder or Certificate
Owner making a Certificate Owner Request may specify its election to receive
such information from the Pass Through Trustee on an ongoing basis.
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"Certificateholder" or "Holder" means the Person in whose name a
Certificate is registered in the Register, except that, when used in Section
3.9, such term means a Certificate Owner.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act.
"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.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act.
"Company" means AES Eastern Energy, L.P., a Delaware limited partnership,
or its successor in interest.
"Consideration" has the meaning specified in Section 2.1.
"Corporate Trust Office", with respect to the Pass Through Trustee, any
Owner Trustee and any Indenture Trustee, means the office of such trustee in the
city in which at any particular time its corporate trust business shall be
principally administered.
"Default" means any event which is or, after notice or lapse of time or
both would become, an Event of Default.
"Definitive Certificates" has the meaning specified in Section 3.9.
"Direction" has the meaning specified in Section 1.4(c).
"Distribution Date", with respect to distributions of Scheduled Payments,
means each January 2 and July 2 until payment of all the Scheduled Payments to
be made under the Lessor Notes has been made, commencing on January 2, 2000.
"DTC" means The Depository Trust Company and any successor that is a
Clearing Agency.
"Exchange Certificate" has the meaning specified in Section 1.4(f).
"Euroclear" has the meaning specified in Section 3.9.
"Event of Default" has the meaning specified in Section 6. 1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fractional Undivided Interest" means the fractional undivided interest in
the Pass Through Trust that is evidenced by a Certificate.
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"Holder". See Certificateholder.
"Indenture" means (i) an Indenture of Trust and Security Agreement between
an Owner Trust and an Indenture Trustee, entered into in connection with a Lease
Transaction, as the same may be amended or supplemented in accordance with its
terms, and (ii) any Indenture of Trust and Security Agreement, or analogous
document, between the Company and an Indenture Trustee, entered into in
connection with the assumption by the Company of the indebtedness evidenced by
any Lessor Note, as the same may be amended or supplemented in accordance with
its terms. The term Indenture refers to any one or all of such Indentures, as
the context requires.
"Indenture Default" means any event which is, or after notice or lapse of
time or both would become, an Indenture Event of Default.
"Indenture Event of Default" means any Indenture Event of Default (as such
term is defined in an Indenture).
"Indenture Trustee" means a bank or trust company acting as indenture
trustee under an Indenture; and any successor to such Indenture Trustee as such
trustee. The term Indenture Trustee refers to any one or all of such Indenture
Trustees, as the context requires.
"Institutional Accredited Investor" means an institutional "accredited
investor", as such term is defined in Rule 501 (a)(1), (2), (3) or (7) under the
Securities Act.
"Lease" means a Facility Lease Agreement between an Owner Trust, as the
lessor, and the Company, as the lessee, entered into in connection with a Lease
Transaction, as such Lease may be amended or supplemented in accordance with its
terms. The term Lease refers to any one or all of such Leases, as the context
requires.
"Lease Transaction" means a lease transaction in respect of an Undivided
Interest between the Company and an Owner Trust that is financed in part by the
issuance of Lessor Notes to the Pass Through Trustee, as contemplated by a
Participation Agreement and the agreements and instruments referred to therein.
"Lessor Note" means any one of the Lessor Notes (as defined in each
Indenture) issued under an Indenture and identified as a Series 1999-A Lessor
Note, including any Lessor Note (as so defined) issued under an Indenture in
replacement or substitution therefor, held by the Pass Through Trustee.
"Lessor Note Documents" means, with respect to any Lessor Note, the
applicable Indenture, Participation Agreement and Lease.
"Letter of Representations" means the agreement among the Company, the
Pass Through Trustee and the initial Clearing Agency.
"Opinion of Counsel" means an opinion in writing signed by legal counsel,
who may be counsel designated by the Company, an Owner Trust or an Indenture
Trustee, whether or not
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such counsel is an employee of any of them, and who shall be acceptable to the
Pass Through Trustee in its reasonable discretion.
"Outstanding", when used with respect to Certificates, means, as of the
date of determination, and subject to Section 1.4(c), all Certificates
theretofore authenticated and delivered under this Pass Through Trust Agreement,
except:
Certificates theretofore canceled by the Registrar or
delivered to the Pass Through Trustee or the Registrar for cancellation;
Certificates for which money in the full amount thereof has
been theretofore deposited with the Pass Through Trustee or any Paying
Agent in trust for the holders of such Certificates as provided in Section
4.1 pending distribution of such money to the Certificateholders pursuant
to the final distribution payment to be made pursuant to Section 11.1; and
Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this Pass
Through Trust Agreement.
"Owner Participant" means a beneficial owner of an interest in an Owner
Trust, identified as an "Owner Participant" in a Participation Agreement, and
any successors and assigns permitted by the applicable Participation Agreement.
The term Owner Participant refers to any one or all of such Owner Participants,
as the context requires.
"Owner Trust" means a trust established in connection with a Lease
Transaction, pursuant to a trust agreement between an Owner Participant and an
Owner Trustee, for the purpose of issuing Lessor Notes, purchasing an Undivided
Interest and entering into a Lease, all as provided in a Participation
Agreement. The term Owner Trust refers to any one or all of such Owner Trusts,
as the context requires.
"Owner Trustee" means a bank or trust company acting as trustee of an
Owner Trust, not in its individual capacity but solely as trustee of such Owner
Trust pursuant to a trust agreement with an Owner Participant, and any successor
to such Owner Trustee as such trustee. The term Owner Trustee refers to any one
or all of such Owner Trustees, as the context requires.
"Participation Agreement" means a Participation Agreement among the
Company, an Owner Participant, an Owner Trust, an Owner Trustee, an Indenture
Trustee and the Pass Through Trustees, providing for a Lease Transaction. The
term Participation Agreement refers to any one or all of such Participation
Agreements, as the context requires. Each Participation Agreement that provides
for a Lease Transaction which is to be financed with Lessor Notes purchased by
the Pass Through Trustee hereunder, together with the identities of the Owner
Trust, the Owner Trustee, the Owner Participant and the Indenture Trustee that
will be parties thereto, is identified on Schedule 1 hereto.
"Pass Through Trust" means the trust created by this Pass Through Trust
Agreement, the estate of which consists of the Trust Property.
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"Pass Through Trustee" means the institution executing this Pass Through
Trust Agreement as Pass Through Trustee, or its successor in interest, and any
successor trustee appointed as provided herein.
"Paying Agent" means the paying agent maintained and appointed pursuant to
Section 7.12.
"Permanent Regulation S Global Certificate" has the meaning specified
in Section 3.9.
"Permitted Government Investment" means obligations of the United States
of America 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 or such lesser
time as is necessary for payment of any Special Payments on a Special
Distribution Date.
"Record Date" means (i) for Scheduled Payments to be distributed on any
Distribution Date, other than the final distribution, the day (whether or not a
Business Day) which is fifteen days preceding such Distribution Date, and (ii)
for Special Payments to be distributed on any Special Distribution Date, other
than the final distribution, the day (whether or not a Business Day) which is
fifteen days preceding such Special Distribution Date.
"Register" and "Registrar" mean the register maintained and the registrar
appointed pursuant to Sections 3.4 and 7.12.
"Registration Rights Agreement" means the AES Eastern Energy, L.P.
Registration Rights Agreement, dated May 11, 1999, among the Initial
Purchasers and the Company.
"Regulation S Global Certificate" has the meaning specified in Section
3.9.
"Request" means a request by the Company setting forth the subject matter
of the request accompanied by an Officer's Certificate and an Opinion of Counsel
as provided in Section 1.2.
"Responsible Officer", when used with respect to the initial Pass Through
Trustee, the initial Indenture Trustee or any Owner Trustee means any officer in
the Corporate Trust Office having direct responsibility for the administration
of the Operative Documents; when used with respect to any successor Pass Through
Trustee, or successor Indenture Trustee, means the chairman or vice-chairman of
the board of directors or trustees, the chairman or vice-chairman of the
executive or standing committee of the board of directors or trustees, the
president, the chairman of the committee on trust matters, any vice-president,
any second vice-president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer, any assistant trust officer, the comptroller and any assistant
comptroller, and, when used with respect to the Pass Through Trustee and any
Indenture Trustee, also means any other officer of the Pass Through Trustee or
any Indenture Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, when used with
respect to the Pass Through Trustee, any Indenture Trustee or any Owner Trustee
with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with the
particular subject.
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"Restricted Certificate" has the meaning specified in Section 3.1.
"Restricted Global Certificate" has the meaning specified in Section
3.9.
"Scheduled Payment", with respect to a Distribution Date, means any
payment (other than a Special Payment) of principal or interest on a Lessor
Note, due from an Owner Trust, which payment represents the payment of a
regularly scheduled installment of principal then due on such Lessor Note or the
payment of regularly scheduled interest accrued on such Lessor Note.
"Special Distribution Date" means (i) with respect to the prepayment of
any Lessor Notes, the day on which such prepayment is scheduled to occur
pursuant to the terms of the Indenture, and (ii) with respect to any Special
Payment relating to a Lessor Note other than as described in clause (i) of the
definition of Special Payment, the earliest second day of a month for which it
is practicable for the Pass Through Trustee to give notice pursuant to Section
4.2(c).
"Special Payment", with respect to a Lessor Note, means (i) any payment of
principal, premium, if any, and interest on such Lessor Note resulting from the
prepayment of such Lessor Note pursuant to the applicable provisions of the
Indenture, (ii) any payment of principal and interest (including any interest
accruing upon default) on, or any other amount in respect of, such Lessor Note
upon an Indenture Event of Default in respect thereof or upon the exercise of
remedies under the Indenture relating to such Lessor Note, (iii) any Special
Payment referred to in clause (i) of this definition or any Scheduled Payment
which is not in fact paid within five days of the Special Distribution Date or
Distribution Date applicable thereto, or (iv) any proceeds from the sale of any
Lessor Note by the Pass Through Trustee pursuant to Article VI hereof; and
Special Payments means all of such Special Payments.
"Special Payments Account" means the account or accounts created and
maintained pursuant to Section 4.1 (b).
"Temporary Regulation S Global Certificate" has the meaning specified
in Section 3.9.
"Transfer Date" means the closing date of the offering of the
Certificates.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time.
"Trust Property" means the Lessor Notes held as the property of the Pass
Through Trust created hereby, all monies at any time paid thereon and all monies
due and to become due thereunder, funds from time to time deposited in the
Certificate Account and the Special Payments Account, and any proceeds from the
sale by the Pass Through Trustee pursuant to Article VI hereof of any Lessor
Note.
"Undivided Interest" shall mean, with respect to a specific Participation
Agreement, an undivided interest equal to the related Owner Trust's percentage
interest in the Facility, as tenant in common with the right to nonexclusive
possession of the Facility.
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Compliance Certificates and Opinions. Upon any application or
request by the Company, any Owner Trust or any Indenture Trustee to the Pass
Through Trustee to take any action under any provision of this Pass Through
Trust Agreement, the Company, such Owner Trust or such Indenture Trustee, as the
case may be, shall furnish to the Pass Through Trustee (a) an Officers'
Certificate stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Pass Through Trust Agreement relating to
the proposed action have been complied with, and (b) as to any legal matters
involved, an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Pass Through Trust
Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Pass Through Trust Agreement shall include:
a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
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;
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
a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Form of Documents Delivered to Pass Through Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any Opinion of Counsel stated to be based on the opinion of other counsel
shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Pass Through Trust Agreement, they may, but need not, be
consolidated and form one instrument.
Acts of Holders. Any direction, consent, waiver or other
action provided by this Pass Through Trust Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in
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person or by an agent or agents duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Pass Through Trustee and, where
it is hereby expressly required, to the Company, the Owner Trust or any
Indenture Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Pass Through Trust Agreement and (subject to Section
7.1) conclusive in favor of the Pass Through Trustee, the Company, the Owner
Trust and any Indenture Trustee, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instrument acknowledged to him
the execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or such other officer, and where such execution is by
an officer of a corporation or association or a member of a partnership on
behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable manner
which the Pass Through Trustee deems sufficient.
In determining whether the Holders of the requisite Fractional
Undivided Interests of Certificates Outstanding have given any direction,
consent or waiver (a "Direction"), under this Pass Through Trust Agreement,
Certificates owned by the Company, the Owner Trust, the Owner Participant or any
Affiliate of any such Person shall be disregarded and deemed not to be
Outstanding under this Pass Through Trust Agreement for purposes of any such
determination. In determining whether the Pass Through Trustee shall be
protected in relying upon any such Direction, only Certificates which the Pass
Through Trustee knows to be so owned shall be so disregarded. Notwithstanding
the foregoing, (i) if any such Person owns 100% of the Certificates Outstanding,
such Certificates shall not be so disregarded as aforesaid, and (ii) if any
amount of Certificates so owned by any such Person have been pledged in good
faith, such Certificates shall not be disregarded as aforesaid if the pledgee
establishes to the satisfaction of the Pass Through Trustee the pledgee's right
so to act with respect to such Certificates and that the pledgee is not the
Company, the Owner Trust, the Owner Participant or any Affiliate of any such
Persons.
Any Act by the Holder of any Certificate shall bind the Holder
of every Certificate issued upon the transfer thereof or in exchange therefor or
in lieu thereof, whether or not notation of such Act is made upon such
Certificate.
Except as otherwise provided in Section 1.4(c), Certificates
owned by or pledged to any Person shall have an equal and proportionate benefit
under the provisions of this Pass Through Trust Agreement, without preference,
priority or distinction as among all of the Certificates.
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Notwithstanding anything herein to the contrary, the
Certificates and any Certificates that are Exchange Certificates (as defined in
the Registration Rights Agreement) will vote and consent together on all matters
as one class and will not have the right to vote or consent as a separate class
on any matter.
ACQUISITION OF LESSOR NOTES;
ORIGINAL ISSUANCE OF CERTIFICATES
Issuance of Certificates; Acquisition of Lessor Notes. The
Pass Through Trustee, at or promptly following the execution and delivery of
this Pass Through Trust Agreement, shall also execute and deliver the
Participation Agreements, in the form delivered to the Pass Through Trustee on
or prior to the date of the execution and delivery hereof. Upon delivery of an
authentication order by the Company and the satisfaction of the closing
conditions with respect to any Lessor Notes to be purchased on the Transfer
Date, on the Transfer Date the Pass Through Trustee shall execute, deliver and
authenticate, on behalf of the Pass Through Trust, Certificates equaling in the
aggregate the aggregate principal amount of the Lessor Notes deposited into the
Pass Through Trust on the Transfer Date. The Certificates so executed, delivered
and authenticated on the Transfer Date shall evidence the entire ownership of
the Pass Through Trust. The Pass Through Trust shall issue such Certificates on
the Transfer Date, in authorized denominations and in such Fractional Undivided
Interests, so as to result in the receipt of consideration (the "Consideration")
in an amount equal to the aggregate principal amount of such Lessor Notes
referred to in the second preceding sentence. The Pass Through Trust shall
purchase Lessor Notes on the Transfer Date at an aggregate purchase price equal
to the amount of the Consideration so received. Except as provided in Sections
3.4 and 3.5 hereof, the Pass Through Trustee shall not execute or deliver
Certificates in excess of the aggregate amount specified in this paragraph.
Company's Assumption of Lessor Note. If the Company shall assume
the obligations of the Owner Trust under any Lessor Note pursuant to any
Indenture, the Pass Through Trustee shall surrender the Lessor Notes issued
pursuant to such Indenture to the Indenture Trustee in exchange for new Lessor
Notes of the same aggregate outstanding principal amount as the Lessor Notes so
surrendered, bearing interest at the same rate, and having the same maturity and
amortization schedule, and otherwise of similar tenor, issued under such
Indenture and any new Indenture entered into by the Company and the Indenture
Trustee in connection with such assumption, and thereafter each reference to
such Lessor Notes in this Pass Through Trust Agreement shall be deemed to
include a reference to such new Lessor Notes.
Authentication. Any authentication order delivered by the
Company hereunder shall be signed by one of its authorized signatories and shall
specify the amount at maturity of the Certificates to be authenticated and the
date on which the original issue of Certificates is to be authenticated. The
Pass Through Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Certificates. Unless limited by the terms of
such appointment, an authenticating agent may authenticate the Certificates
whenever
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the Pass Through Trustee may do so. Each reference in this Pass Through Trust
Agreement to authentication by the Pass Through Trustee includes authentication
by such agent. An authenticating agent has the same rights as any Registrar,
Paying Agent or agent for service of notices and demands.
Acceptance by Pass Through Trustee. The Pass Through Trustee,
upon the execution and delivery of this Pass Through Trust Agreement,
acknowledges its acceptance of all right, title, and interest in and to the
Lessor Notes acquired pursuant to Section 2.1 hereof and declares that the Pass
Through Trustee holds and will hold such right, title, and interest, together
with all other property constituting the Trust Property, for the benefit of all
present and future Certificateholders, upon the trusts herein set forth. By its
payment for and acceptance of each Certificate issued to it hereunder, each
initial Certificateholder as grantor of the Pass Through Trust thereby joins in
the creation and declaration of the Pass Through Trust. The Pass Through Trustee
shall be under no duty or obligation to inspect, review or examine the Lessor
Notes to determine that they are genuine, valid, binding, enforceable or
appropriate for the represented purpose or that they are other than what they
purport to be on their face.
Limitation of Powers. The Pass Through Trust is constituted
solely for the purpose of making the investment in the Lessor Notes, and, except
as set forth herein, the Pass Through Trustee is not authorized or empowered to
acquire any other investments or engage in any other activities and, in
particular, the Pass Through Trustee is not authorized or empowered to do
anything that would cause the Pass Through Trust to fail to qualify as a grantor
trust for federal income tax purposes (including, as subject to this
restriction, acquiring the Facility by bidding for the Lessor Notes or
otherwise, or taking any action with respect to any Undivided Interest or the
Facility once acquired).
THE CERTIFICATES
Form, Denomination and Execution of Certificates. The
Certificates shall be issued in registered form without coupons and shall be
substantially in the form attached hereto as Exhibit A, with such omissions,
variations and insertions as are permitted by this Pass Through Trust Agreement,
and may have such letters, numbers or other marks of identification and such
legends or endorsements 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 Pass Through 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, definitive Certificates shall be
printed, lithographed or engraved or produced by any combination of these
methods or may be produced in any other manner permitted by the rules of any
securities exchange on which the Certificates may be listed, all as determined
by the officer executing such Certificates, as evidenced by his execution of
such Certificates.
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During the period beginning on the Closing Date and ending on the date two
years from the Closing Date, all Certificates issued on the Closing Date, and
all Certificates issued upon registration of transfer of, or in exchange for,
such Certificates, shall be "Restricted Certificates" and shall be subject to
the restrictions on transfer provided in the legend set forth on the face of the
form of certificate in Exhibit A; provided, however, that the term "Restricted
Certificates" shall not include Certificates as to which such restrictions on
transfer have been terminated in accordance with Section 3.4. All Restricted
Certificates shall bear the legend set forth on the face of the Certificate in
Exhibit A. Certificates which are not Restricted Certificates shall not bear
such legend.
The Certificates shall be issued in minimum denominations of $100,000 or
integral multiples of $1,000 in excess thereof.
The Certificates shall be executed on behalf of the Pass Through Trust by
manual or facsimile signature of a Responsible Officer of the Pass Through
Trustee. Certificates bearing the manual or facsimile signature of an individual
who was, at the time when such signature was affixed, authorized to sign on
behalf of the Pass Through Trustee shall be valid and binding obligations of the
Pass Through Trustee, notwithstanding that such individual has ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such office at the date of such Certificates. No Certificate shall be
entitled to any benefit under this Pass Through Trust Agreement, or be valid for
any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit B hereto executed
by the Pass Through 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 shall be dated on the date of their authentication.
Authentication of Certificate. Upon delivery of an
authentication order by the Company, the Pass Through Trustee on the Transfer
Date shall cause to be authenticated and delivered Certificates duly
authenticated by the Pass Through Trustee, in authorized denominations equaling
in the aggregate the aggregate principal amount of the Lessor Notes purchased on
the Transfer Date and evidencing the entire ownership of the Pass Through Trust.
Temporary Certificates. Pending the preparation of definitive
Certificates, the Pass Through Trustee may execute, authenticate and deliver
temporary Certificates which are printed, lithographed, typewritten, or
otherwise produced, in any denomination, containing substantially the same terms
and provisions as set forth in Exhibit A, except for such appropriate
insertions, omissions, substitutions and other variations relating to their
temporary nature as the officer executing such temporary Certificates may
determine, as evidenced by his or her execution of such temporary Certificates.
If temporary Certificates are issued, the Pass Through Trustee will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the Corporate Trust Office of the Pass Through Trustee, or at
the office or agency of the Pass Through Trustee maintained in accordance with
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Section 7.12, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Certificates, the Pass Through Trustee shall execute,
authenticate and deliver in exchange therefor definitive Certificates of
authorized denominations 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 Pass Through Trust Agreement as
definitive Certificates.
Registration of Transfer and Exchange of Certificates. The
Pass Through Trustee shall cause to be kept, at the office or agency to be
maintained by it in accordance with the provisions of Section 7.12, a register
(the "Register") in which, subject to the provisions of this Section 3.4 and the
Certificates, the Pass Through Trustee shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Pass Through Trustee shall initially be the registrar (the "Registrar") for
the purpose of registering Certificates and transfers and exchanges of
Certificates as herein provided.
Every Restricted Certificate shall be subject to the
restrictions on transfer provided in the legend required to be set forth on the
face of each Restricted Certificate pursuant to Section 3.1, and the Holder of
each Restricted Certificate, by such Holder's acceptance thereof, agrees to be
bound by such restrictions on transfer. Whenever any Restricted Certificate is
presented or surrendered for registration of transfer or for exchange for a
Certificate registered in a name other than that of the Holder, such Restricted
Certificate must be accompanied by a certificate in substantially the form set
forth in Exhibit C hereto, dated the date of such surrender and signed by the
Holder of such Restricted Certificate, or such Holder's attorney duly authorized
in writing, as to compliance with such restrictions on transfer. Neither the
Pass Through Trustee nor any Registrar shall be required to accept for such
registration of transfer or exchange any Restricted Certificate not so
accompanied by a properly completed certificate. Notwithstanding the preceding
two sentences, a properly completed certificate shall not be required in
connection with any transfer of any Restricted Certificate through the
facilities of DTC or any other United States securities clearance and settlement
organization, provided that such transfer does not require a change in the name
(other than to another nominee of DTC or such other securities clearance and
settlement organization) in which such Restricted Certificate is then
registered.
Whenever any Restricted Certificate is proposed to be transferred by a
Holder to an Institutional Accredited Investor, the Pass Through Trustee shall
have received from such Institutional Accredited Investor, prior to such
transfer, a signed letter substantially in the form of Exhibit D relating to
certain representations and agreements regarding restrictions on transfer of
such Restricted Certificate. In addition, if such Restricted Certificate
evidences a Fractional Undivided Interest of less than $100,000, the
Institutional Accredited Investor must, prior to such transfer, furnish to the
Registrar an Opinion of Counsel to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
The restrictions imposed by this Section 3.4 and Section 3.1 upon the
transferability of any particular Restricted Certificate shall cease and
terminate if and when such Restricted Certificate has been (i) sold pursuant to
an effective registration statement under the Securities Act, (ii) exchanged for
Exchange Certificates that are freely tradeable under the Securities Act, or
(iii)
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transferred pursuant to Rule 144 under the Securities Act (or any successor
provision thereto), unless the Holder thereof is an affiliate of the Company
within the meaning of Rule 144 (or such successor provision). Any Restricted
Certificate as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon surrender of such
Restricted Certificate for exchange to the Pass Through Trustee or any Registrar
in accordance with the provisions of this Section 3.4 (accompanied, in the event
that such restrictions on transfer have terminated by reason of a transfer
pursuant to Rule 144 or any successor provision, by an Opinion of Counsel having
substantial experience in practice under the Securities Act and otherwise
reasonably acceptable to the Company, addressed to the Company and the Pass
Through Trustee and in form acceptable to the Company, to the effect that the
transfer of such Restricted Certificate has been made in compliance with Rule
144 or such successor provision), be exchanged for a new Certificate, of
authorized denominations of a like aggregate Fractional Undivided Interest,
which shall not bear the restrictive legend required by Section 3.1. The Company
shall promptly inform the Pass Through Trustee in writing of the effective date
of any registration statement registering the Certificates under the Securities
Act. The Pass Through Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the aforementioned
Opinion of Counsel or registration statement.
Upon surrender for registration of transfer of any Certificate
that is not a Restricted Certificate at the Corporate Trust Office or such other
office or agency, the Pass Through Trustee shall execute, authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates, in authorized denominations of a like aggregate Fractional
Undivided Interest.
At the option of a Certificateholder, Certificates may be
exchanged for other Certificates, in authorized denominations and of a like
aggregate Fractional Undivided Interest, upon surrender of the Certificates to
be exchanged at any such office or agency; provided, that a Restricted
Certificate may only be exchanged for another Restricted Certificate, until such
restrictions on such Restricted Certificate shall cease and terminate in
accordance with the terms of this Section 3.4. Whenever any Certificates are so
surrendered for exchange, the Pass Through Trustee shall execute, authenticate
and deliver the Certificates that the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for registration
of transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Pass Through Trustee and the
Registrar duly executed by the Certificateholder thereof or its attorney duly
authorized in writing.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Pass Through
Trustee shall require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
All Certificates surrendered for registration of transfer and
exchange shall be canceled and disposed of in accordance with the usual
practices of the Pass Through Trustee.
Mutilated, Destroyed, Lost or Stolen Certificates. If any
mutilated Certificate is surrendered to the Registrar, or the Registrar receives
evidence to its satisfaction of
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the destruction, loss or theft of any Certificate and in the case of such
destruction, loss or theft, there is delivered to the Registrar and the Pass
Through Trustee such security, indemnity or bond as may be required by them to
save each of them and the Pass Through Trust harmless, then, in the absence of
notice to the Registrar or the Pass Through Trustee that such Certificate has
been acquired by a bona fide purchaser, the Pass Through Trustee, on behalf of
the Pass Through Trust, shall execute, authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like Fractional Undivided Interest with the same final
Distribution Date. In connection with the issuance of any new Certificate under
this Section 3.5, the Pass Through Trustee shall require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Pass Through Trustee and the Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section 3.5 shall constitute conclusive
evidence of the appropriate Fractional Undivided Interest in the Pass Through
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Pass Through Trustee, the Company,
the Owner Trust, the Registrar and any Paying Agent may treat the person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 4.2 and for all other
purposes whatsoever, and neither the Pass Through Trustee, the Company, the
Owner Trust, the Registrar nor any Paying Agent shall be affected by any notice
to the contrary.
Cancellation. All Certificates surrendered for payment,
transfer or exchange shall, if surrendered to any Person a party hereto other
than the Registrar, be delivered by such Person to the Registrar for
cancellation. No Certificates shall be authenticated in lieu of or in exchange
for any Certificates canceled as provided in this Section, except as expressly
permitted by this Pass Through Trust Agreement. All canceled Certificates held
by the Registrar shall be disposed of in accordance with the usual practice of
the Pass Through Trustee and, if destroyed, a certification of their destruction
shall be delivered to the Pass Through Trustee.
Limitation of Liability for Payments. All payments or
distributions made to Certificateholders under this Pass Through Trust Agreement
shall be made only from the Trust Property and only to the extent that the Pass
Through Trustee shall have received sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of Article IV of
this Pass Through Trust Agreement. Each Holder of a Certificate, by its
acceptance of such Certificate, agrees that it will look solely to the income
and proceeds from the Trust Property to the extent available for distribution to
the Holder thereof as provided in this Pass Through Trust Agreement. Nothing in
this Pass Through Trust Agreement shall be construed as an agreement, or
otherwise creating an obligation, of (a) the Company, the Pass Through Trust
Company or the Pass Through Trustee to pay any of the principal, premium if any,
or interest due from time to time under the Lessor Notes or (b) the Company or
the Pass Through Trust Company to pay any amount due from time to time in
respect of the Certificates. The liability of the Owner Trust under the Lessor
Notes shall be limited as set forth therein and in the Indenture.
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Book-Entry and Definitive Certificates. Except for
Certificates issued to Institutional Accredited Investors which must be issued
in the form of definitive, fully registered Certificates ("Definitive
Certificates"), the Certificates may be issued in the form of one or more
typewritten Certificates representing the Book-Entry Certificates to be
delivered to DTC, the initial Clearing Agency, by, or on behalf of, the Company.
In such case, the Certificates delivered to DTC 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, except as
provided above and in subsection (d) below. As to the Book-Entry Certificates,
unless and until Definitive Certificates have been issued pursuant to subsection
(d) below:
the provisions of this Section 3.9 shall be in full force
and effect;
the Company, the Owner Trust, the Paying Agent, the
Registrar and the Pass Through Trustee may deal with the Clearing Agency
for all purposes (including the making of distributions on the
Certificates) as the authorized representative of the Certificate Owners;
to the extent that the provisions of this Section 3.9
conflict with any other provisions of this Pass Through Trust Agreement
(other than the provisions of any supplemental agreement amending this
Section 3.9 as permitted by this Pass Through Trust Agreement), the
provisions of this Section 3.9 shall control;
the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Certificate Owners and the Clearing Agency
Participants; and until Definitive Certificates are issued pursuant to
subsection (d) below, the Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and transmit
distributions of principal, interest and premium, if any, on the
Certificates to such Clearing Agency Participants; and
whenever this Pass Through Trust Agreement requires or
permits actions to be taken based upon instructions or directions of
Certificateholders holding Certificates evidencing a specified percentage
of the Fractional Undivided Interests in the Pass Through 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 and has delivered such instructions to the Pass Through
Trustee. The Pass Through Trustee shall have no obligation to determine
whether the Clearing Agency has in fact received any such instructions.
With respect to Book-Entry Certificates, whenever notice or
other communication to the Certificateholders is required under this Pass
Through Trust Agreement, unless and until Definitive Certificates shall have
been issued pursuant to subsection (d) below, the Pass Through Trustee shall
give all such notices and communications specified herein to be given to
Certificateholders to the Clearing Agency and/or the Clearing Agency
Participants (and,
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upon receipt of a valid Certificate Owner Request, to the Certificateholder or
Certificate Owner making such request), and shall make available additional
copies as requested by such Clearing Agency Participants.
Unless and until Definitive Certificates are issued pursuant to
subsection (d) below, on the Record Date prior to each applicable Distribution
Date and Special Distribution Date, the Pass Through Trustee will request from
the Clearing Agency a "Securities Position Listing" setting forth the names of
all Clearing Agency Participants reflected on the Clearing Agency's books as
holding interests in the Certificates on such Record Date. The Pass Through
Trustee shall mail to each such Clearing Agency Participant the statements
described in Section 4.3 hereof.
If with respect to the Certificates (i) the Company advises the
Pass Through Trustee in writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities and the Company is unable to
locate a qualified successor, (ii) the Company (or, following the occurrence of
a Lease Event of Default, the Owner Trust) at its option, advises the Pass
Through Trustee in writing that it elects to terminate the book-entry system
through the Clearing Agency or (iii) after the occurrence of an Event of
Default, Certificate Owners of Book-Entry Certificates evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in the Pass
Through Trust, by Act of said Certificate Owners delivered to the Company and
the Pass Through Trustee, advise the Company, the Owner Trust, the Pass Through
Trustee and the Clearing Agency through the Clearing Agency Participants in
writing that the continuation of a book-entry system through the Clearing Agency
is no longer in the best interests of the Certificate Owners, then the Pass
Through Trustee shall notify all Certificate Owners, through the Clearing
Agency, of the occurrence of any such event and of the availability of
Definitive Certificates. Upon surrender to the Pass Through Trustee of all the
Certificates held by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency for registration of Definitive
Certificates in the names of Certificate Owners, the Pass Through Trust shall
issue and deliver the Definitive Certificates in accordance with the
instructions of the Clearing Agency. None of the Company, the Owner Trust, the
Registrar, the Paying Agent or the Pass Through Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such registration instructions. Upon the issuance of
Definitive Certificates, the Pass Through Trustee shall recognize the Person in
whose name the Definitive Certificates are registered in the Register as
Certificateholder hereunder. Neither the Company nor the Pass Through Trustee
shall be liable if the Company is unable to locate a qualified successor
Clearing Agency.
The Certificates sold in offshore transactions in reliance on
Regulation S under the Securities Act will be represented initially by a single,
temporary Book-Entry Certificate, in definitive, fully registered form without
interest coupons (the "Temporary Regulation S Global Certificate") and will be
deposited with the Pass Through Trustee as custodian for DTC and registered in
the name of a nominee of DTC for the accounts of Xxxxxx Guaranty Trust Company
of New York, Brussels Office, as operator of the Euroclear System ("Euroclear"),
and Centrale de Livraison de Valeurs Mobilieres S.A. ("Cedel"). Each Temporary
Regulation S Global Certificate will be exchangeable for a single, permanent
Book-Entry Certificate (the "Permanent Regulation S Global Certificate," and
together with the Temporary
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Regulation S Global Certificate, the "Regulation S Global Certificate") on or
after 40 days after the later of the commencement of the offering of the
Certificates and the Closing Date upon certification that the beneficial
interests in such Book-Entry Certificate are owned by persons who are not U.S.
persons as defined in Regulation S. Prior to the expiration of such 40-day
period, beneficial interests in the Temporary Regulation S Global Certificate
may be held only through Euroclear or Cedel, and any resale or other transfer of
such interests to U.S. persons shall not be permitted during such period unless
such resale or transfer is made pursuant to Rule 144A or Regulation S under the
Securities Act and in accordance with the certification requirements specified
in Section 3.9(f) below. The aggregate original principal amount of the
Regulation S Global Certificate may from time to time be increased or decreased
by adjustments made on the records of the Pass Through Trustee, as custodian for
DTC, in connection with a corresponding decrease or increase in the aggregate
original principal amount of a Definitive Certificate or the Restricted Global
Certificate, as hereinafter provided.
The Certificates sold in reliance on Rule 144A under the
Securities Act will be represented by a single, permanent Book-Entry
Certificate, in definitive, fully registered form without interest coupons (the
"Restricted Global Certificate"), which will be deposited with the Pass Through
Trustee as custodian for DTC and registered in the name of a nominee of DTC.
Prior to the 40th day after the later of the commencement of the offering of the
Certificates and the Closing Date, a beneficial interest in the Temporary
Regulation S Global Certificate may be transferred to a person who takes
delivery in the form of an interest in the Restricted Global Certificate only
upon receipt by the Pass Through Trustee of a written certification from the
transferor (in the form of Exhibit C hereto) to the effect that such transfer is
being made to a person who the transferor reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other jurisdiction. Beneficial
interests in the Restricted Global Certificate may be transferred to a person
who takes delivery in the form of an interest in the Regulation S Global
Certificate whether before, on or after such 40th day, only upon receipt by the
Pass Through Trustee of a written certification (in the form of Exhibit C
hereto) to the effect that such transfer is being made in accordance with
Regulation S under the Securities Act and, if such transfer occurs prior to such
40th day, the interest will be held immediately thereafter only through
Euroclear or Cedel. The aggregate initial principal amount of the Restricted
Global Certificate may from time to time be increased or decreased by
adjustments made on the records of the Pass Through Trustee, as custodian for
DTC, in connection with a corresponding decrease or increase in the aggregate
initial principal amount of a Definitive Certificate or a Regulation S Global
Certificate, as hereinafter provided.
Any beneficial interest in one of the Book-Entry Certificates
that is transferred to a person who takes delivery in the form of an interest in
another Book-Entry Certificate will, upon transfer, cease to be an interest in
such first Book-Entry Certificate and become an interest in such other
Book-Entry Certificate and, accordingly, will thereafter be subject to all
transfer restrictions, if any, and other procedures applicable to beneficial
interests in such other Book-Entry Certificate for so long as it remains such an
interest. Upon the transfer of Definitive Certificates to a qualified
institutional buyer or in accordance with Regulation S, such Definitive
Certificates will be exchanged for an interest in a Book-Entry Certificate.
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The Company and the Pass Through Trustee, if necessary, shall
each enter into the Letter of Representations with respect to the Certificates
and fulfill its responsibilities thereunder.
Form of Certification. In connection with any certification
contemplated by Section 3.4, relating to compliance with certain restrictions
relating to transfers of Restricted Certificates, such certification shall be
provided substantially in the form of Exhibit C hereto, with only such changes
as shall be reasonably approved by the Company and reasonably acceptable to the
Pass Through Trustee.
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Certificate Account and Special Payments Account. The Pass
Through Trustee shall establish and maintain on behalf of the Certificateholders
the Certificate Account with the Pass Through Trustee as one or more
non-interest bearing accounts. The Pass Through Trustee shall hold the
Certificate Account in trust for the benefit of the Certificateholders, and
shall make or permit withdrawals therefrom only as provided in this Pass Through
Trust Agreement. On each day when a Scheduled Payment is made under the
Indenture to the Pass Through Trustee, as holder of the Lessor Notes issued
under such Indenture, the Pass Through Trustee upon receipt shall immediately
deposit the aggregate amount of such Scheduled Payment in the Certificate
Account.
The Pass Through Trustee shall establish and maintain on behalf
of the Certificateholders the Special Payments Account with the Pass Through
Trustee as one or more accounts, which shall be non-interest bearing except as
provided in Section 4.4. The Pass Through Trustee shall hold the Special
Payments Account in trust for the benefit of the Certificateholders, and shall
make or permit withdrawals therefrom only as provided in this Pass Through Trust
Agreement. On each day when a Special Payment (other than a Special Payment that
represents the proceeds of any sale pursuant to Article VI hereof by the Pass
Through Trustee of a Lessor Note) is made under the Indenture to the Pass
Through Trustee, as holder of the Lessor Notes issued under such Indenture, the
Pass Through Trustee upon receipt shall immediately deposit the aggregate
amounts of such Special Payments in the Special Payments Account. Upon the sale
of any Lessor Note by the Pass Through Trustee pursuant to Article VI hereof and
the realization of any proceeds thereof, the Pass Through Trustee shall deposit
the aggregate amount of such proceeds as a Special Payment in the Special
Payments Account.
The Pass Through Trustee shall present to the Indenture Trustee
each Lessor Note on the date of its stated final maturity, or in the case of any
Lessor Note which is to be prepaid in whole pursuant to the Indenture, on the
applicable prepayment date under such Indenture.
Distributions from Certificate Account and Special Payments
Account. On each Distribution Date if the Pass Through Trustee receives payment
of the Scheduled
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Payments due on the Lessor Notes on such date by 2:00 p.m., New York time, on
such date, the Pass Through Trustee shall distribute out of the Certificate
Account the entire amount deposited therein pursuant to Section 4.1(a). If a
Scheduled Payment is received by the Pass Through Trustee after 2:00 p.m., New
York time, on a Distribution Date, such payment shall be distributed on the next
Business Day. If a Scheduled Payment is not received by the Pass Through Trustee
on a Distribution Date but is received prior to the time such payment would
become a Special Payment, such payment shall be distributed (i) on the date
received, if received by 2:00 p.m., New York time, on such date or (ii) on the
next Business Day, if received after 2:00 p.m., New York time, on such date.
There shall be so distributed to each Certificateholder of record on the Record
Date with respect to such Distribution Date (other than as provided in Section
11.1 concerning the final distribution) (i) if (A) DTC is the Certificateholder
of record, or (B) a Certificateholder holds a Certificate or Certificates in an
aggregate amount greater than $10,000,000 or (C) a Certificateholder holds a
Certificate or Certificates in an aggregate amount greater than $1,000,000 and
so requests to the Pass Through Trustee, by wire transfer in immediately
available funds to an account maintained by such Certificateholder with a bank,
or (ii) if none of the above apply, by check mailed to such Certificateholder at
the address appearing in the Register, such Certificateholder's pro rata share
(based on the aggregate Fractional Undivided Interest held by such
Certificateholder) of the aggregate amount in the Certificate Account.
On each Special Distribution Date with respect to any Special
Payment, if the Pass Through Trustee receives the Special Payments due on such
date by 2:00 p.m., New York time, on such date, the Pass Through Trustee shall
distribute out of the Special Payments Account the entire amount deposited
therein with respect to such Special Payment pursuant to Section 4.1(b). If a
Special Payment is received by the Pass Through Trustee after 2:00 p.m., New
York time, on a Special Distribution Date, such payment shall be distributed on
the next Business Day. If a Special Payment is not received by the Pass Through
Trustee on a Special Distribution Date, such payment shall be distributed (i) on
the date received, if received by 2:00 p.m., New York time, on such date or (ii)
on the next Business Day, if received after 2:00 p.m., New York time, on such
date. There shall be so distributed to each Certificateholder of record on the
Record Date with respect to such Special Distribution Date (other than as
provided in Section 11.1 concerning the final distribution) (i) if (A) DTC is
the Certificateholder of record, or (B) a Certificateholder holds a Certificate
or Certificates in an aggregate amount greater than $10,000,000 or (C) a
Certificateholder holds a Certificate or Certificates in an aggregate amount
greater than $1,000,000 and so requests to the Pass Through Trustee, by wire
transfer in immediately available funds to an account maintained by the
Certificateholder with a bank, or (ii) if none of the above apply, by check
mailed to such Certificateholder at the address appearing in the Register, such
Certificateholder's pro rata share (based on the aggregate Fractional Undivided
Interest held by such Certificateholder) of the aggregate amount in the Special
Payments Account on account of such Special Payment.
The Pass Through Trustee shall at the expense of the Company
cause notice of each Special Payment to be mailed to (i) each Certificateholder,
at the address of such Certificateholder as it appears in the Register, and (ii)
any Certificate Owner who has made a valid Certificate Owner Request, at the
address specified in such Certificate Owner Request. In the event of prepayment
of Lessor Notes, such notice shall be mailed not less than fifteen days prior to
the date any such Special Payment is scheduled to be distributed. In the case of
any other
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Special Payments, such notice shall be mailed as soon as practicable after the
Pass Through Trustee has confirmed that it has received funds for such Special
Payment. Notices mailed by the Pass Through Trustee shall set forth:
the Special Distribution Date and the Record Date
therefor (except as otherwise provided in Section 11.1);
the amount of the Special Payment per $1,000 of face amount
of Certificates and the amount thereof constituting principal, premium, if
any, and interest;
the reason for the Special Payment; and
if the Special Distribution Date is the same date as a
Distribution Date, the total amount to be received on such date per $1,000
of face amount of Certificates.
If the amount of premium payable upon the prepayment of a Lessor Note has not
been calculated at the time that the Pass Through 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 a Distribution Date or Special Distribution Date is not a Business Day,
distribution shall be made on the immediately following Business Day.
Statements to Certificateholders. On each Distribution Date
and Special Distribution Date, the Pass Through Trustee will include with each
distribution to Certificateholders a statement, giving effect to such
distribution to be made on such date, setting forth the following information
(per a $1,000 face amount Certificate as to (i) and (ii) below):
the amount of such distribution allocable to principal
and the amount allocable to premium, if any; and
the amount of such distribution allocable to interest.
Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Pass
Through Trustee shall furnish (i) to each Person who at any time during such
calendar year was a Certificateholder of record and (ii) to any Certificate
Owner who has made a valid Certificate Owner Request and provided the Pass
Through Trustee with such pertinent information as the Pass Through Trustee
shall reasonably request, a statement containing the sum of the amounts
determined pursuant to clauses (a)(i) and (a)(ii) with respect to the Pass
Through Trust for such calendar year or, in the event such Person was a
Certificateholder of record or Certificate Owner during a portion of such
calendar year, for the applicable portion of such year, and such other items as
are readily available to the Pass Through Trustee and which a Certificateholder
or Certificate Owner shall reasonably request as necessary for the purpose of
such Certificateholder's or Certificate Owner's preparation of its Federal
income tax returns.
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Investment of Special Payment Moneys. Any money received by
the Pass Through Trustee pursuant to Section 4.1(b) representing a Special
Payment which is not to be promptly distributed shall, to the extent
practicable, be invested in Permitted Government Investments by the Pass Through
Trustee pending distribution of such Special Payment pursuant to Section 4.2.
Any investment made pursuant to this Section 4.4 shall be in such Permitted
Government Investments having maturities not later than the date that such
moneys are required to be paid to make the payment required under Section 4.2 on
the applicable Special Distribution Date and the Pass Through Trustee shall hold
any such Permitted Government Investments until maturity. The Pass Through
Trustee shall have no liability with respect to any investment made pursuant to
this Section 4.4, other than by reason of the willful misconduct or negligence
of the Pass Through Trustee. All income and earnings from such investments shall
be distributed on such Special Distribution Date as part of such Special
Payment.
THE COMPANY
Reports. For so long as any Certificates remain Outstanding,
the Company shall furnish (a) to Certificateholders, Certificate Owners and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the
Certificates are not freely transferable under the Securities Act, and (b) to
the Pass Through Trustee, who in turn shall provide such information, upon a
Certificate Owner Request, to Certificateholders and Certificate Owners (i)
within 60 days following the end of each of the first three fiscal quarters of
the Company during each fiscal year, a copy of the Company's Form 10-Q, or, if
the Company is not subject to the reporting requirements of the Exchange Act,
reports containing unaudited quarterly financial statements and a discussion and
analysis thereof and otherwise substantially conforming to the requirements of
Form 10-Q (or any successor form) promulgated under the Exchange Act, (ii)
within 120 days following the end of the fiscal year of the Company, a copy of
the Company's Form 10-K, or, if the Company is not subject to the reporting
requirements of the Exchange Act, reports containing audited annual financial
statements and a discussion and analysis thereof and otherwise substantially
conforming to the requirements of Form 10-K (or any successor form) promulgated
under the Exchange Act, and (iii) within 20 days after the occurrence thereof,
notice of the following events: (A) a change in control with respect to the
Company; (B) the acquisition or disposition of a significant amount of assets by
the Company; (C) the appointment of a receiver over the Company or the
confirmation of a plan of reorganization or liquidation for the Company; or (D)
the resignation or dismissal of the independent accountants engaged by the
Company.
DEFAULT
Events of Default. If any Indenture Event of Default under any
Indenture (an "Event of Default") shall occur and be continuing, then, and in
each and every case, so long as such Indenture Event of Default shall be
continuing, the Pass Through Trustee may vote all of the
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Lessor Notes issued under such Indenture held in the Pass Through Trust, and
upon the Direction of the Holders of Certificates evidencing Fractional
Undivided Interests aggregating not less than a majority in interest of the
Fractional Undivided Interests evidenced by all Certificates at the time
Outstanding (determined as provided in Section 1.4(c)), the Pass Through Trustee
shall vote a corresponding majority of such Lessor Notes, in favor of directing
the Indenture Trustee to declare the unpaid principal amount of such Lessor
Notes then outstanding and accrued interest thereon to be due and payable under,
and to the extent permitted by and in accordance with, the provisions of such
Indenture. In addition, if an Indenture Event of Default shall have occurred and
be continuing under any Indenture, the Pass Through Trustee may, and upon the
Direction of Holders as provided in Section 6.4 shall, in accordance with such
Indenture, vote all the Lessor Notes held in the Pass Through Trust to direct
the Indenture Trustee regarding the exercise of remedies provided in such
Indenture and consistent with the terms thereof.
In addition, after an Event of Default shall have occurred and be
continuing, the Pass Through Trustee may in its discretion, and upon the
Direction of the Holders of Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest of the Fractional
Undivided Interests evidenced by all Certificates at the time Outstanding
(determined as provided in Section 1.4(c)) shall, by such officer or agent as it
may appoint, sell, convey, transfer and deliver all or a portion of such Lessor
Note or Lessor Notes issued under the Indenture with respect to which the Event
of Default has occurred, without recourse to or warranty by the Pass Through
Trustee or any Certificateholders to any Person. In any such case, the Pass
Through Trustee shall sell, assign, contract to sell or otherwise dispose of and
deliver such Lessor Note or Lessor Notes in one or more parcels at public or
private sale or sales, at any location or locations at the option of the Pass
Through Trustee, all upon such terms and conditions as it may reasonably deem
advisable and at such prices as it may reasonably deem advisable, for cash. The
Pass Through Trustee shall give notice to the Company and the Owner Trust
promptly after any such sale.
Incidents of Sale of Lessor Notes. Upon any sale of all or any
part of the Lessor Notes made either under the power of sale given under this
Pass Through Trust Agreement or otherwise for the enforcement of this Pass
Through Trust Agreement, the following shall be applicable:
Certificateholders and Pass Through Trustee May Purchase
Lessor Notes. Any Certificateholder, the Pass Through Trustee in its
individual or any other capacity or any other Person may bid for and
purchase any of the Lessor Notes and, upon compliance with the terms of
sale, may hold, retain, possess and dispose of such Lessor Notes in their
or its or his own absolute right without further accountability.
Receipt of Pass Through Trustee Shall Discharge Purchaser. The
receipt of immediately available funds by the Pass Through Trustee or the
officer or agent appointed by the Pass Through Trustee 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
his 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.
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Application of Moneys Received upon Sale. Any moneys collected
by the Pass Through Trustee, upon any sale made either under the power of
sale given by this Pass Through Trust Agreement or otherwise for the
enforcement of this Pass Through Trust Agreement, shall be applied as
provided in Section 4.2.
Judicial Proceedings Instituted by Pass Through Trustee. Pass
Through Trustee May Bring Suit. If there shall be a failure to make payment of
the principal of, premium, if any, or interest on any Lessor Note, or if there
shall be any failure to pay Rent (as defined in a Lease) under the Lease related
to any Lessor Note when due and payable, then the Pass Through Trustee, in its
own name, or as trustee of an express trust, or in both of such capacities, as
holder of such Lessor Notes, shall be, to the extent permitted by and in
accordance with the terms of the Lessor 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 Lessor Notes or under
such Lease and may prosecute any such claim or proceeding to judgment or final
decree with respect to the whole amount of any such sums so due and unpaid;
subject, however, to the limitations of liability set forth in the Lessor Notes
and the Lessor Note Documents.
Pass Through Trustee May File Proofs of Claim; Appointment of
Pass Through Trustee as Attorney-in-Fact in Judicial Proceedings. The Pass
Through Trustee in its own name, or as trustee of an express trust, or as
attorney-in-fact for the Certificateholders, or in any one or more of such
capacities (irrespective of whether distributions on the Certificates shall then
be due and payable, or the payment of the principal on the Lessor Notes shall
then be due and payable, as therein expressed or by declaration or otherwise and
irrespective of whether the Pass Through Trustee shall have made any demand to
the Indenture Trustee for the payment of overdue principal, premium (if any) or
interest on the Lessor Notes), shall, subject to the terms of the Lessor Note
Documents, be entitled and empowered to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Pass Through Trustee and of the Certificateholders allowed in any
receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization
or other judicial proceedings relative to the Company, any Owner Trust, any
Owner Trustee or any Owner Participant, their respective creditors or their
property. Subject to the terms of the Lessor Note Documents, any receiver,
assignee, trustee, liquidator or sequestrator (or similar official) in any such
judicial proceeding is hereby authorized by each Certificateholder to make
payments in respect of such claim to the Pass Through Trustee, and in the event
that the Pass Through Trustee shall consent to the making of such payments
directly to the Certificateholders, to pay to the Pass Through Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Pass Through Trustee, its agents and its counsel. Subject to
Section 6.4, nothing contained in this Pass Through Trust Agreement shall be
deemed to give to the Pass Through Trustee any right to accept or consent to any
plan of reorganization or otherwise by action of any character in any such
proceeding to waive or change in any way any right of any Certificateholder.
Control by Certificateholders. The Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest of the Fractional Undivided Interests evidenced by all Certificates
at the time outstanding (determined as provided in Section 1.4(c)) shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Pass Through Trustee, or exercising any trust or
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power conferred upon the Pass Through Trustee, under this Pass Through Trust
Agreement, including any right of the Pass Through Trustee as holder of the
Lessor Notes, provided that:
such Direction shall not be in conflict with any rule of law
or with this Pass Through Trust Agreement and would not involve the Pass
Through Trustee in personal liability or expense;
the Pass Through Trustee shall not determine that the action
so directed would be unjustly prejudicial to the Certificateholders not
taking part in such direction;
the Pass Through Trustee may take any other action deemed
proper by the Pass Through Trustee which is not inconsistent with such
Direction;
such Holders shall have provided to the Pass Through Trustee
security or indemnity against the costs, expenses or liabilities which may
be incurred thereby; and
if an Indenture Event of Default shall have occurred and be
continuing, such Direction shall not obligate the Pass Through Trustee to
vote more than a corresponding majority of the related Lessor Notes held
by the Pass Through Trust in favor of directing any action by the
Indenture Trustee with respect to such Indenture Event of Default.
Waiver of Defaults. The Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
of the Fractional Undivided Interests evidenced by all Certificates at the time
Outstanding (determined as provided in Section 1.4(c)) may on behalf of the
Certificateholders of all the Certificates waive any Default hereunder and its
consequences or may instruct the Pass Through Trustee to waive any default under
an Indenture and its consequences, except a Default:
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, or
in the payment of the principal of, premium, if any, or
interest on any Lessor Notes, or
in respect of a covenant or provision hereof which under
Article IX hereof cannot be modified or amended without the consent of the
Holder of each Outstanding Certificate affected.
Upon any such waiver, such Default shall cease to exist with respect to
this Pass Through Trust Agreement, any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Pass Through Trust
Agreement and any direction given by the Pass Through Trustee on behalf of such
Holders to the Indenture Trustee shall be annulled with respect thereto; but no
such waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereon. Upon any such waiver, the Pass Through
Trustee shall vote the Lessor Notes issued under the Indenture to waive the
corresponding Indenture Default or Indenture Event of Default.
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With respect to consents, approvals, waivers and authorizations which
under the terms of Article IX of the Indenture may be given by the Indenture
Trustee without the necessity of the consent of any of the holders of Lessor
Notes, no consent, approval, waiver or authorization shall be required hereunder
on the part of the Pass Through Trustee or the Certificateholders.
Undertaking to Pay Court Costs. All parties to this Pass
Through Trust Agreement, and each Certificateholder by his acceptance of a
Certificate, shall be deemed to have agreed that any court may in its discretion
require, in any suit, action or proceeding for the enforcement of any right or
remedy under this Pass Through Trust Agreement, or in any suit, action or
proceeding against the Pass Through Trustee for any action taken or omitted by
it as Pass Through Trustee hereunder, the filing by any party litigant in such
suit, action or proceeding of an undertaking to pay the costs of such suit,
action or proceeding, and that such court may, in its discretion, assess
reasonable costs, including reasonable 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 Holder, or group of Holders, holding in
the aggregate Certificates evidencing Fractional Undivided Interests aggregating
more than 10% of the Pass Through Trust, (b) any suit, action or proceeding
instituted by any Certificateholder for the enforcement of the distribution of
payments pursuant to Section 4.2 hereof on or after the respective due dates
expressed herein, or (c) any suit, action or proceeding instituted by the Pass
Through Trustee.
Right of Certificateholders to Receive Payments Not to Be
Impaired. Anything in this Pass Through Trust Agreement to the contrary
notwithstanding, but subject to Section 3.8 hereof, the right of any
Certificateholder to receive distributions of payments required pursuant to
Section 4.2 hereof on the Certificates when due, or to institute suit for the
enforcement of any such payment on or after the applicable Distribution Date or
Special Distribution Date, shall not be impaired or affected without the consent
of such Certificateholder.
Certificateholders May Not Bring Suit Except Under Certain
Conditions. A Certificateholder shall not have the right to institute any suit,
action or proceeding at law or in equity or otherwise with respect to this Pass
Through Trust Agreement, for the appointment of a receiver or for the
enforcement of any other remedy under this Pass Through Trust Agreement, unless:
such Certificateholder previously shall have given written
notice to the Pass Through Trustee of a continuing Event of Default;
the Holders of Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest of the
Fractional Undivided Interests evidenced by all Certificates at the time
Outstanding (determined as provided in Section 1.4(c)) shall have
requested the Pass Through Trustee in writing to institute such suit,
action or proceeding and shall have offered to the Pass Through Trustee
indemnity as provided in Section 7.3(e);
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the Pass Through Trustee shall have refused or neglected to
institute any such suit, action or proceeding for 60 days after receipt of
such notice, request and offer of indemnity; and
no Direction inconsistent with such written request has been
given to the Pass Through Trustee during such 60-day period by the Holders
of Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest of the Fractional Undivided Interests
evidenced by all Certificates at the time Outstanding (determined as
provided in Section 1.4(c)).
It is understood and intended that no one or more of the
Certificateholders shall have any right in any manner whatever hereunder or
under the Certificates to (i) surrender, impair, waive, affect, disturb or
prejudice any property in the Trust Property or the lien of any Indenture on any
property subject thereto, or the rights of the Certificateholders or the holders
of the Lessor Notes, (ii) obtain or seek to obtain priority over or preference
to any other such Holder, or (iii) enforce any right under this Pass Through
Trust Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all the Certificateholders subject to the provisions of
this Pass Through Trust Agreement.
Remedies Cumulative. Every remedy given hereunder to the Pass
Through Trustee or to any of the Certificateholders shall not be exclusive of
any other remedy or remedies, and every such remedy shall be cumulative and in
addition to every other remedy given hereunder or now or hereafter given by
statute, law, equity or otherwise.
THE PASS THROUGH TRUSTEE
Certain Duties and Responsibilities. Prior to an Event
of Default of which a Responsible Officer of the Pass Through Trustee has
actual knowledge:
the Pass Through Trustee shall not be liable except for the
performance of such duties as are specifically set out in this Pass
Through Trust Agreement; and
the Pass Through Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, in the absence of bad faith on the part of the Pass Through
Trustee, upon Officer's Certificates or Opinions of Counsel conforming to
the requirements of this Pass Through Trust Agreement;
but the Pass Through Trustee shall, at any time that the Certificates shall be
subject to the Trust Indenture Act, examine the evidence furnished to it
pursuant to Section 314 of the Trust Indenture Act to determine whether or not
such evidence conforms to the requirements of this Pass Through Trust Agreement;
provided, however, that the Pass Through Trustee shall not be responsible for
the accuracy or content of such evidence.
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In case an Event of Default has occurred and is continuing, the
Pass Through Trustee shall exercise each of the rights and powers vested in it
by this Pass Through Trust Agreement, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
No provision of this Pass Through Trust Agreement shall be
construed to relieve the Pass Through Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
this subsection shall not be construed to limit the effect
of subsection (a) of this Section;
the Pass Through Trustee shall not be liable in its individual
capacity for any error of judgment made in good faith by a Responsible
Officer of the Pass Through Trustee, unless it shall be proved that the
Pass Through Trustee was negligent in ascertaining the pertinent facts;
and
the Pass Through Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the Direction of the Holders of Certificates evidencing Fractional
Undivided Interests aggregating not less than a majority in interest of
the Fractional Undivided Interests evidenced by all Certificates at the
time Outstanding (determined as provided in Section 1.4(c)) relating to
the time, method and place of conducting any proceeding for any remedy
available to the Pass Through Trustee, or exercising any trust or power
conferred upon the Pass Through Trustee, under this Pass Through Trust
Agreement.
Subject to the terms of Section 7.03, upon written instructions
at any time and from time to time of a majority in interest of
Certificateholders, the Pass Through Trustee shall take, and without such
written instructions the Pass Through Trustee shall not take, any of the
following actions: (a) give any notice, direction or consent or exercise any
right, remedy or power or take any such action hereunder or under any Operative
Document, or in respect of any part of or all the Trust Property, as it shall be
entitled to take and as shall be specified in such instructions; (b) take such
action with respect to or to preserve or protect the Trust Property (including
the discharge of Liens) as it shall be entitled to take and as shall be
specified in such instructions; and (c) waive, consent to, approve (as
satisfactory to it) or disapprove any matters required by the terms of any
Operative Documents to be satisfactory to the Pass Through Trustee.
The Pass Through Trustee may, and upon written instructions from
a majority in interest of Certificateholders, the Pass Through Trustee shall,
execute and file or cause to be executed and filed any instrument or document
relating to the security, title, Lien, security interest and assignment granted
herein as may be necessary to protect and preserve the security, title, Lien,
security interest or assignment created by or pursuant to this Pass Through
Trust Agreement, to the extent otherwise entitled to do so and as shall be
specified in such instructions.
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Whether or not herein expressly so provided, every provision of
this Pass Through Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Pass Through Trustee shall be
subject to the provisions of this Section.
Notice of Defaults. The Pass Through Trustee shall give to the
Certificateholders, at any time that the Certificates shall be subject to the
Trust Indenture Act, in the manner and to the extent required by Section 313(c)
of the Trust Indenture Act, and to the Company, the Owner Trust and the
Indenture Trustee in accordance with Section 12.3, notice of all Defaults
actually known to a Responsible Officer of the Pass Through Trustee within 90
days after the occurrence thereof; provided, however, that, except in the case
of a Default in the payment of the principal of, premium, if any, on or interest
on any Lessor Note, the Pass Through Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors or Responsible Officers of the Pass Through
Trustee in good faith determines that the withholding of such notice is in the
interests of the Certificateholders and the Certificate Owners.
Certain Rights of Pass Through Trustee. Except as otherwise
provided in Section 7.1:
the Pass Through Trustee may rely and shall be protected in
acting or refraining from acting in reliance upon any Act, Direction,
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper, document,
facsimile transmission, e-mail or other electronic communication believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Request;
whenever in the administration of this Pass Through Trust
Agreement the Pass Through Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, the Pass Through Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate of the Company, the Owner Trust or the Indenture
Trustee;
the Pass Through Trustee may consult with counsel and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
permitted by it hereunder in good faith and in reliance thereon;
the Pass Through Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Pass Through Trust
Agreement at the request or direction of any of the Certificateholders pursuant
to this Pass Through Trust Agreement, unless such Certificateholders shall have
provided to the Pass Through Trustee reasonable security or indemnity against
the cost, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
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the Pass Through Trustee shall not be bound to make any
investigation into the facts or matters stated in any Act, Direction,
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or document
or facsimile transmission, e-mail or other electronic communication;
the Pass Through Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys, and the Pass Through Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney appointed by
it hereunder with due care;
the Pass Through Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion of rights or powers conferred upon it by
this Agreement;
the right of the Pass Through Trustee to perform any
discretionary act enumerated in this Agreement shall not be construed as a duty,
and the Pass Through Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of such act;
the Pass Through Trustee shall not be required to give any bond
or surety in respect of the execution of the trust fund created hereby or the
powers granted hereunder; and
the Pass Through Trustee shall have no responsibility for filing
any financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to record this Agreement.
Not Responsible for Recitals; Issuance of Certificates. The
recitals contained herein and in the Certificates, except the certificates of
authentication, shall not be taken as the statements of the Pass Through
Trustee, and the Pass Through Trustee assumes no responsibility for their
correctness. The Pass Through Trustee makes no representations as to the
validity or sufficiency of this Pass Through Trust Agreement, the Lessor Notes,
the Lessor Note Documents or the Certificates, or the Collateral securing the
Lessor Notes, except that the Pass Through Trustee hereby represents and
warrants that this Pass Through Trust Agreement has been, and each Certificate
will be, executed and delivered by one of its officers who is duly authorized to
execute and deliver such document on its behalf.
May Hold Certificates. The Pass Through Trustee, any Paying
Agent, Registrar or any other agent, in their respective individual or any other
capacity, may become the owner or pledgee of Certificates and may otherwise deal
with the Company, the Owner Trust, the Owner Participant or the Indenture
Trustee with the same rights it would have if it were not the Pass Through
Trustee, Paying Agent, Registrar or such other agent, subject to Section 7.8 in
the case of the Pass Through Trustee.
Money Held in Pass Through Trust. Money held by the Pass
Through Trustee or the Paying Agent in trust hereunder need not be segregated
from other funds except to
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the extent required herein or by law, and neither the Pass Through Trustee nor
the Paying Agent shall have any liability for interest upon any such moneys
except as provided for herein.
Compensation, Reimbursement and Indemnification. The
Company agrees:
to pay, or cause to be paid, to the Pass Through Trustee from
time to time the compensation separately agreed to by the Pass Through
Trustee and the Company for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); and
except as otherwise expressly provided herein, to reimburse,
or cause to be reimbursed, the Pass Through Trustee upon its request for
all reasonable out-of-pocket expenses, disbursements and advances incurred
or made by the Pass Through Trustee in accordance with any provision of
this Pass Through Trust Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence, willful misconduct or bad faith.
In addition, the Pass Through Trustee shall be entitled to reimbursement
from, and shall have a lien prior to the Certificates upon, all property and
funds held or collected by the Pass Through Trustee in its capacity as Pass
Through Trustee for any tax incurred without negligence, bad faith or willful
misconduct, on its part, arising out of or in connection with the acceptance or
administration of this Pass Through Trust (other than any tax attributable to
the Pass Through Trustee's compensation for serving as such), including any
costs and expenses incurred in contesting the imposition of any such tax. If the
Pass Through Trustee reimburses itself for any such tax, it will within 30 days
mail a brief report setting forth the circumstances thereof to all
Certificateholders as their names and addresses appear in the Register.
Corporate Trustee Required; Eligibility. There shall at all
times be a Pass Through Trustee hereunder which (a) shall be, at any time that
the Certificates shall be subject to the Trust Indenture Act, a Person eligible
to act as a trustee under Section 310(a) of the Trust Indenture Act and (b)
shall be a corporation organized and doing business under the laws of the United
States of America or of any state, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$100,000,000, and subject to supervision or examination by Federal or state
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Pass Through Trustee shall cease to be eligible in accordance with
the provisions of clause (a) of this Section at a time when it is required to be
so qualified, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Resignation and Removal: Appointment of Successor. No
resignation or removal of the Pass Through Trustee, and no appointment of a
successor Pass Through Trustee
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pursuant to this Article, shall become effective until the acceptance of
appointment by the successor Pass Through Trustee under Section 7. 10.
The Pass Through Trustee may resign at any time by giving
written notice thereof to the Company, the Authorized Agents, the Owner Trust,
the Owner Participant and the Indenture Trustee. If an instrument of acceptance
by a successor Pass Through Trustee shall not have been delivered to the
Company, the Owner Trust, the Owner Participant and the Indenture Trustee within
30 days after the giving of such notice of resignation, the resigning Pass
Through Trustee may petition any court of competent jurisdiction for the
appointment of a successor Pass Through Trustee.
The Pass Through Trustee may be removed at any time, subject to
Section 7.10 hereof, by Act of the Holders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in the Pass Through Trust delivered to the Pass Through Trustee and to the
Company, the Owner Trust and the Indenture Trustee.
If at any time:
the Pass Through Trustee fails to, at any time that the
Certificates shall be subject to the Trust Indenture Act, comply with the
requirements of Section 310 of the Trust Indenture Act after written
request for such compliance by a Certificateholder that has been a bona
fide Certificateholder for at least six months; or
the Pass Through Trustee shall cease to be eligible under
Section 7.8 and shall fail to resign after written request therefor by the
Company (or, following the occurrence of a Lease Event of Default, the
Owner Trust) or by any such Certificateholder; or
the Pass Through Trustee shall become incapable of acting or
shall be adjudged bankrupt or insolvent or a receiver of the Pass Through
Trustee or of its property shall be appointed or any public officer shall
take charge or control of the Pass Through Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any case, (i) the Company (or, following the occurrence of a Lease
Event of Default, the Owner Trust) may remove the Pass Through Trustee, or (ii)
subject to Section 6.6, any Certificateholder who has been a bona fide Holder of
a Certificate for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Pass Through Trustee and the appointment of a successor Pass Through
Trustee.
If a Responsible Officer of the Pass Through Trustee shall
obtain Actual Knowledge of an Avoidable Tax (as hereinafter defined) which has
been or is likely to be asserted, the Pass Through Trustee shall promptly notify
the Company and the Owner Trust thereof and shall, within 60 days of such
notification, resign hereunder unless within such 60-day period the Pass Through
Trustee shall have received notice that the Company or the Owner Trust has
agreed
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to pay such tax. The Company shall promptly appoint a successor Pass Through
Trustee in a jurisdiction where there are no Avoidable Taxes. As used herein an
"Avoidable Tax" means a state or local tax: (i) upon (w) the Pass Through Trust,
(x) the Trust Property, (y) Holders of the Certificates or (z) the Pass Through
Trustee for which the Pass Through Trustee is entitled to seek reimbursement
from the Trust Property, and (ii) that would be avoided if the Pass Through
Trustee were located in another state, or jurisdiction within a state, within
the United States. A tax shall not be an Avoidable Tax if the Company or the
Owner Trust shall agree to pay, and shall pay, such tax.
If the Pass Through Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Pass
Through Trustee for any cause, the Company (or, following the occurrence of a
Lease Event of Default, the Owner Trust) shall promptly appoint a successor Pass
Through Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Pass Through
Trustee shall be appointed by Act of the Holders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in the Pass Through Trust, delivered to the Company, the Owner Trust, the Owner
Participant, the Indenture Trustee and the retiring Pass Through Trustee, the
successor Pass Through Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Pass Through Trustee and supersede the
successor Pass Through Trustee appointed as provided above. If no successor Pass
Through Trustee shall have been so appointed as provided above and accepted
appointment in the manner hereinafter provided, any Certificateholder who has
been a bona fide Holder of a Certificate for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Pass Through Trustee.
The successor Pass Through Trustee shall give notice of the
resignation and removal of the Pass Through Trustee and appointment of the
successor Pass Through Trustee by mailing written notice of such event by
first-class mail, postage prepaid, to the Holders of Certificates 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.
Acceptance of Appointment by Successor. Every successor Pass
Through Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company, the Owner Trust and to the retiring Pass Through Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Pass Through Trustee shall become effective and such successor
Pass Through Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Pass
Through Trustee; but, on request of the Company (or, following the occurrence of
a Lease Event of Default, the Owner Trust) to the successor Pass Through
Trustee, such retiring Pass Through Trustee shall execute and deliver an
instrument transferring to such successor Pass Through Trustee all the rights,
powers and trusts of the retiring Pass Through Trustee and shall duly assign,
transfer and deliver to such successor Pass Through Trustee all property and
money held by such retiring Pass Through Trustee hereunder, subject nevertheless
to its lien, if any, provided for in Section 7.7. Upon request of any such
successor Pass Through Trustee, each of the Company, the Owner Trust, the
retiring Pass Through Trustee and such successor Pass Through Trustee shall
execute and deliver any and all instruments containing such provisions as shall
be necessary or desirable to
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transfer and confirm to, and for more fully and certainly vesting in, such
successor Pass Through Trustee all such rights, powers and trusts.
No successor Pass Through Trustee shall accept its appointment unless at
the time of such acceptance such successor Pass Through Trustee shall be
qualified and eligible under this Article.
Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Pass Through Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Pass Through Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Pass Through Trustee, shall be the successor of
the Pass Through Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Certificates shall have been authenticated, but not delivered, by the Pass
Through Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Pass Through Trustee may adopt such
authentication and deliver the Certificates so authenticated with the same
effect as if such successor Pass Through Trustee had itself authenticated such
Certificates.
Maintenance of Agencies. There shall at all times be
maintained in the The City of New York an office or agency where Certificates
may be presented or surrendered for registration of transfer or for exchange,
and for payment thereof and where notices and demands to or upon the Pass
Through Trustee in respect of the Certificates or of this Pass Through Trust
Agreement may be served. Such office or agency shall be initially at 0 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Written notice of the location of each such
other office or agency and of any change of location thereof shall be given by
the Pass Through Trustee to the Company, the Owner Trust, the Owner Participant,
the Indenture Trustee and the Certificateholders. In the event that no such
office or agency shall be maintained or no such notice of location or of change
of location shall be given, presentations and demands may be made and notices
may be served at the Corporate Trust Office of the Pass Through Trustee.
There shall at all times be a Registrar and a Paying Agent
hereunder. Each such Authorized Agent shall be a bank or trust company, shall be
a corporation organized and doing business under the laws of the United States
or any state, with a combined capital and surplus of at least $100,000,000, and
shall be authorized under such laws to exercise corporate trust powers, subject
to supervision by Federal or state authorities. The Pass Through Trustee shall
initially be the Paying Agent and, as provided in Section 3.4, Registrar
hereunder. Each Registrar shall furnish to the Pass Through Trustee, at stated
intervals of not more than six months, and at such other times as the Pass
Through Trustee may request in writing, a copy of the Register.
Any corporation into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authorized Agent shall
be a party, or any corporation succeeding to the corporate trust business of any
Authorized Agent, shall be the successor of such Authorized Agent hereunder, if
such successor corporation is otherwise eligible under this
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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.
Any Authorized Agent may at any time resign by giving written
notice of resignation to the Pass Through Trustee, the Company, the Owner Trust,
the Owner Participant and the Indenture Trustee. The Company (or, following the
occurrence of a Lease Event of Default, the Owner Trust) may, and at the request
of the Pass Through Trustee shall, at any time terminate the agency of any
Authorized Agent by giving written notice of termination to such Authorized
Agent and to the Pass Through Trustee. Upon the resignation or termination of an
Authorized Agent or in case at any time any such Authorized Agent shall cease to
be eligible under this Section (when, in either case, no other Authorized Agent
performing the functions of such Authorized Agent shall have been appointed),
the Company (or, following the occurrence of a Lease Event of Default, the Owner
Trust) shall promptly appoint one or more qualified successor Authorized Agents
reasonably satisfactory to the Pass Through Trustee, to perform the functions of
the Authorized Agent which has resigned or whose agency has been terminated or
who shall have ceased to be eligible under this Section. The Company (or,
following the occurrence of a Lease Event of Default, the Owner Trust) shall
give written notice of any such appointment made by it to the Pass Through
Trustee, the Company, the Owner Trust and the Indenture Trustee; and in each
case the Pass Through Trustee shall mail notice of such appointment to all
Holders as their names and addresses appear on the Register.
The Company agrees to pay, or cause to be paid, from time to
time to each Authorized Agent the compensation as set forth in the schedule
agreed to by each Authorized Agent and the Company for its services and to
reimburse it for its reasonable expenses.
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 Holders of the
Certificates 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 Holders of the Certificates with respect to which
such money was deposited.
The Pass Through Trustee will cause each Paying Agent other than the Pass
Through Trustee to execute and deliver to it an instrument in which such Paying
Agent shall agree with the Pass Through Trustee, subject to the provisions of
this Section, that such Paying Agent will
hold all sums held by it for payments on Certificates in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
give the Pass Through Trustee notice in writing of any
default by any obligor upon the Certificates in the making of any such
payment; and
at any time during the continuance of any such default, upon
the written request of the Pass Through Trustee, forthwith pay to the Pass
Through Trustee all sums so held in trust by such Paying Agent.
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The Pass Through Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Pass Through Trust Agreement or for any other
purpose, direct any Paying Agent to pay to the Pass Through Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Pass Through
Trustee upon the same trusts as those upon which such sums were held by such
Paying Agent; and, upon such payment by any Paying Agent to the Pass Through
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Registration of Lessor Notes in Pass Through Trustee's Name.
The Pass Through Trustee agrees that all Lessor Notes and Permitted Government
Investments, if any, shall be issued in the name of the Pass Through Trustee or
its nominee and held by the Pass Through Trustee, or, if not so held, the Pass
Through Trustee or its nominee shall be reflected as the owner of such Lessor
Notes or Permitted Government Investments, as the case may be, in the register
of the issuer of such Lessor Notes or Permitted Government Investments under the
applicable provisions of the Uniform Commercial Code in effect where the Pass
Through Trustee holds such Lessor Notes or Permitted Government Investments, or
other applicable law then in effect.
Withholding Taxes; Information Reporting. The Pass Through
Trustee, as trustee of a grantor trust, shall exclude and withhold from each
distribution of principal, premium, if any, interest and other amounts due
hereunder or under the Certificates any and all withholding taxes applicable
thereto as required by law. The Pass Through Trustee agrees (i) to act as such
withholding agent and, in connection therewith, whenever any present or future
taxes or similar charges are required to be withheld with respect to any amounts
payable in respect of the Certificates, to withhold such amounts and timely pay
the same to the appropriate authority in the name of and on behalf of the
Holders of the Certificates, (ii) that it will file any necessary withholding
tax returns or statements when due, and (iii) that, as promptly as possible
after the payment thereof, it will deliver to each Holder of a Certificate
appropriate documentation showing the payment thereof, together with such
additional documentary evidence as such Holders may reasonably request from time
to time. The Pass Through Trustee agrees to file any other information reports
as it may be required to file under United States law. Any amounts withheld and
paid to a relevant taxing authority pursuant to this Section 7.15 shall be
deemed to have been paid to the related Certificateholders for all purposes
under the Operative Documents.
Pass Through Trustee's Liens. The Pass Through Trustee, in its
individual capacity, agrees that it will at its own cost and expense promptly
take any action as may be necessary to duly discharge and satisfy in full any
mortgage, pledge, lien, charge, encumbrance, security interest or claim on or
with respect to the Trust Property which is either (i) attributable to the Pass
Through Trustee in its individual capacity and which is unrelated to the
transactions contemplated by this Pass Through Trust Agreement or any Lessor
Note Document, or (ii) which is attributable to the Pass Through Trustee as
trustee hereunder or in its individual capacity and which arises out of acts or
omissions which are prohibited by this Pass Through Trust Agreement.
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CERTIFICATEHOLDERS' LISTS AND REPORTS
The Company to Furnish Pass Through Trustee with Names and
Addresses of Certificateholders. The Company will furnish to the Pass Through
Trustee within 30 days after each Record Date with respect to a Scheduled
Payment, and at such other times as the Pass Through Trustee may request in
writing, a list, in such form as the Pass Through Trustee may reasonably
require, of all information in the possession or control of the Company as to
the names and addresses of the Holders of Certificates, in each case as of a
date not more than 15 days prior to the time such list is furnished; provided,
however, that so long as the Pass Through Trustee is the sole Registrar, no such
list need be furnished; and provided further, however, that no such list need be
furnished for so long as a copy of the Register is being furnished to the Pass
Through Trustee pursuant to Section 7.12(b).
Preservation of Information. The Pass Through Trustee shall
preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders of Certificates contained in the most recent list furnished
to the Pass Through Trustee as provided in Section 7.12(b) or Section 8.1, as
the case may be, and the names and addresses of Holders of Certificates received
by the Pass Through Trustee in its capacity as Registrar, if so acting. The Pass
Through Trustee may destroy any list furnished to it as provided in Section
7.12(b) or Section 8.1, as the case may be, upon receipt of a new list so
furnished.
Records by the Company. The Company shall, at any time that
the Certificates shall be subject to the Trust Indenture Act, comply with
Section 314 of the Trust Indenture Act and shall file, furnish and deliver the
reports, information, documents, certificates and opinions required thereunder,
and, at any time that the Certificates shall be subject to the Trust Indenture
Act, acknowledges and agrees that, for purposes of Section 314 of the Trust
Indenture Act, the Company shall be considered to be the "obligor" upon the
Certificates. Without limiting the generality of the foregoing, at any time that
the Certificates shall be subject to the Trust Indenture Act, the Company shall
deliver to the Pass Through Trustee the annual certificate required under clause
(4) of Section 314(a) of the Trust Indenture Act within 30 days following the
end of each fiscal year of the Company ending after the date hereof. The
provisions of this Section shall not be construed to impose any obligation or
liability on the Company to pay any of the principal, premium, if any, or
interest in respect of the Lessor Notes or the Certificates.
Reports by the Pass Through Trustee. The Pass Through Trustee
shall, at any time that the Certificates shall be subject to the Trust Indenture
Act, transmit, in the manner and to the extent required by Section 313(c) of the
Trust Indenture Act, any report required by Section 313(a) of the Trust
Indenture Act to be transmitted by the Pass Through Trustee to the
Certificateholders.
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SUPPLEMENTAL TRUST AGREEMENTS
Supplemental Trust Agreement Without Consent of
Certificateholders. Without the consent of the Holder of any Certificates, the
Company may, and the Pass Through Trustee (subject to Section 9.3) shall, at any
time and from time to time enter into one or more agreements supplemental
hereto, in form satisfactory to the Pass Through Trustee, for any of the
following purposes:
to evidence the succession of another corporation to the
Company and the assumption by any such successor of the obligations of
the Company herein contained;
to add to the covenants of the Company, for the protection
of the Holders of the Certificates;
to surrender any right or power herein conferred upon the
Company;
to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein or to make any other provisions with respect to matters or
questions arising under this Pass Through Trust Agreement; provided that
any such action will not adversely affect the interests of the Holders of
the Certificates;
to correct or amplify the description of property that
constitutes Trust Property or the conveyance of such property to the Pass
Through Trustee;
to evidence and provide for a successor Pass Through
Trustee;
at any time that the Certificates shall be subject to the
Trust Indenture Act, to modify, eliminate or add to the provisions of this
Pass Through Trust Agreement to the extent as shall be necessary to
qualify this Pass Through Trust Agreement (including any supplemental
agreement) under the Trust Indenture Act or under any similar Federal
statute hereafter enacted, or to add to this Pass Through Trust Agreement
such other provisions as may be expressly permitted by the Trust Indenture
Act, excluding, however, the provisions referred to in Section 316(a)(2)
of the Trust Indenture Act as in effect at the date as of which this
instrument was executed or any corresponding provision in any similar
Federal statute hereafter enacted;
to modify, amend or supplement any provision herein to reflect
changes relating to the assumption and substitution of any Note pursuant
to Section 2.10(b) of the Indenture;
to add, eliminate, or change any provision under this Pass
Through Trust Agreement that will not adversely affect the interests of
the Certificateholders; or
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if necessary in the opinion of the Company, to provide for
issuance of Exchange Certificates as contemplated by the Registration
Rights Agreement.
provided that in each case such supplemental agreement does not cause the Pass
Through Trust to become taxable as an "association" within the meaning of
Treasury Regulation Section 301.7701-4 or to be taxable as other than a "fixed
investment trust" within the meaning of Treasury Regulation 301.7701-4(c).
Supplemental Trust Agreements with Consent of
Certificateholders. With the consent of the Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
of the Fractional Undivided Interests evidenced by all Certificates at the time
Outstanding (determined as provided in Section 1.4(c)), by Act of said Holders
delivered to the Company and the Pass Through Trustee, the Company may (with the
consent of the Owner Trust, such consent not to be unreasonably withheld), and
the Pass Through Trustee (subject to Section 9.3) shall, enter into an agreement
or agreements supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Pass Through
Trust Agreement or of modifying in any manner the rights and obligations of the
Holders of the Certificates under this Pass Through Trust Agreement; provided,
however, that no such supplemental agreement shall, without the consent of the
Holder of each Outstanding Certificate affected thereby:
reduce in any manner the amount of, or delay the timing of,
any receipt by the Pass Through Trustee of payments on the Lessor Notes
held in the Pass Through Trust, or distributions that are required to be
made herein on any Certificate of such Pass Through Trust, or change any
date of payment on any such Certificate, or change the place of payment
where, or the coin or currency in which, any such Certificate is payable,
or impair the right of any Holder of any such Certificate to institute
suit for the enforcement, subject to Section 3.8 hereof, of any such
payment or distribution on or after the Distribution Date or Special
Distribution Date applicable thereto; or
except as provided in this Pass Through Trust Agreement,
permit the disposition of any Lessor Note in the Trust Property, or permit
the creation of any lien on the Trust Property, or otherwise deprive any
Certificateholder of the benefit of the ownership of the Lessor Notes held
in the Pass Through Trust or the lien of the related Indenture; or
reduce the percentage of the aggregate Fractional Undivided
Interests which is required to approve any such supplemental agreement, or
reduce such percentage required for any waiver provided for in this Pass
Through Trust Agreement; or
cause the Pass Through Trust to become taxable as an
"association", within the meaning of Treasury Regulation Section
301.7701-4 or to be taxable as other than a "fixed investment trust within
the meaning of Treasury Regulation 301.7701-4(c).
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It shall not be necessary for any Act of Certificateholders under this
Section to approve the particular form of any proposed supplemental agreement,
but it shall be sufficient if such Act shall approve the substance thereof.
Documents Affecting Immunity or Indemnity. If in the opinion
of the Pass Through Trustee any document required to be executed by it pursuant
to the terms of Section 9.1 or 9.2 affects any interest, right, duty, immunity
or indemnity in favor of the Pass Through Trustee under this Pass Through Trust
Agreement, the Pass Through Trustee may in its discretion decline to execute
such document.
Execution of Supplemental Trust Agreements. In executing, or
accepting the additional trusts created by, any supplemental agreement permitted
by this Article or the modification thereby of the trusts created by this Pass
Through Trust Agreement, the Pass Through Trustee shall be entitled to receive,
and (subject to Section 7.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental agreement is
authorized or permitted by this Pass Through Trust Agreement.
Effect of Supplemental Trust Agreements. Upon the execution of
any supplemental agreement under this Article, this Pass Through Trust Agreement
shall be modified in accordance therewith, and such supplemental agreement shall
form a part of this Pass Through Trust Agreement for all purposes; and every
Holder of Certificates theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Reference in Certificates to Supplemental Trust Agreements.
Certificates authenticated and delivered after the execution of any supplemental
agreement pursuant to this Article may bear a notation in form approved by the
Pass Through Trustee as to any matter provided for in such supplemental
agreement; and, in such case, suitable notation may be made upon Outstanding
Certificates after proper presentation and demand.
AMENDMENTS TO INDENTURES AND
OTHER LESSOR NOTE DOCUMENTS
Amendments and Supplements to Indenture and Other Lessor Note
Documents. In the event that the Pass Through Trustee, as holder of any Lessor
Note in trust for the benefit of the Certificateholders, receives a request for
a consent to any amendment, modification, waiver or supplement under any
Indenture or other Lessor Note Document that requires the consent of the holder
of such Lessor Note, the Pass Through Trustee shall forthwith send a notice of
such proposed amendment, modification, waiver or supplement to each
Certificateholder registered on the Register as of such date. Any such notice
shall describe the proposed amendment, modification, waiver or supplement (or
attach a copy thereof). The Pass Through Trustee shall request from the
Certificateholders Directions as to (i) whether or not to direct the Indenture
Trustee to take or refrain from taking any action which a holder of such Lessor
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
Lessor Note and (iii) how to vote
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any Lessor Note if a vote has been called for with respect thereto. Any such
request shall specify a date by which Certificateholders are requested to
respond. 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 Lessor Note, the Pass Through Trustee shall vote or consent with
respect to such Lessor Note in the same proportion as the Certificates were
actually voted by Acts of Holders delivered to the Pass Through Trustee prior to
two Business Days before the Pass Through Trustee directs such action or casts
such vote or gives such consent. Notwithstanding the foregoing, but subject to
Section 6.4, in the case that an Event of Default hereunder shall have occurred
and be continuing, the Pass Through Trustee may, in its own discretion and at
its own direction, consent and notify the Indenture Trustee of such consent to
any amendment, modification, waiver or supplement under an Indenture or other
Lessor Note Document.
With respect to consents, approvals, waivers and authorizations which
under the terms of Article VIII of the Indenture may be given by the Indenture
Trustee without the necessity of the consent of any of the holders of Lessor
Notes, no consent, approval, waiver or authorization shall be required hereunder
on the part of the Pass Through Trustee or the Certificateholders.
TERMINATION OF PASS THROUGH TRUST
Termination of the Pass Through Trust. The respective
obligations and responsibilities of the Company and the Pass Through Trust
created hereby shall terminate upon the distribution to all Certificateholders
of all amounts required to be distributed to them pursuant to this Pass Through
Trust Agreement and the disposition of all property held as part of the Trust
Property.
Notice of any termination, specifying the Distribution Date (or Special
Distribution Date, as the case may be) upon which the Certificateholders may
surrender their Certificates to the Pass Through Trustee for payment of the
final distribution and cancellation, shall be mailed promptly by the Pass
Through Trustee to Certificateholders not earlier than the 20th day and not
later than the 60th day next preceding such final distribution specifying (A)
the Distribution Date (or Special Distribution Date, as the case may be) upon
which final payment of the Certificates will be made upon presentation and
surrender of Certificates at the office or agency of the Pass Through Trustee
therein specified, (B) the amount of any such final payment, and (C) that the
Record Date otherwise applicable to such Distribution Date (or Special
Distribution Date, as the case may be) is not applicable, payments being made
only upon presentation and surrender of the Certificates at the office or agency
of the Pass Through Trustee therein specified. The Pass Through Trustee shall
give such notice to the Registrar at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Pass Through Trustee shall cause to be distributed to Certificateholders amounts
distributable on such Distribution Date or Special Distribution Date, as the
case may be, pursuant to Section 4.2.
In the event that all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the
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Pass Through Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. In the event that any money held by
the Pass Through Trustee for the payment of distributions on the Certificates
shall remain unclaimed for two years (or such lesser time as the Pass Through
Trustee shall be satisfied, after 30 days' written 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 Pass Through Trustee shall pay
to the Indenture Trustee the appropriate amount of money relating to such
Indenture Trustee and shall give written notice thereof to the Owner Trust, the
Owner Participant and the Company.
MISCELLANEOUS PROVISIONS
Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this Pass
Through Trust Agreement or the Pass Through Trust nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding up of the Pass Through Trust, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
Certificates Nonassessable and Fully Paid. Certificateholders
shall not be personally liable for obligations of the Pass Through Trust; the
Fractional Undivided Interests represented by the Certificates shall be
nonassessable for any losses or expenses of the Pass Through Trust or for any
reason whatsoever; and Certificates, upon authentication thereof by the Pass
Through Trustee pursuant to Section 3.2, are and shall be deemed fully paid. No
Certificateholder shall have any right (except as expressly provided herein) to
vote or in any manner otherwise control the operation and management of the
Trust Property, the Pass Through Trust established hereunder, or the obligations
of the parties hereto, nor shall anything set forth herein, or contained in the
terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association.
Notices. Unless otherwise expressly specified or permitted by
the terms hereof, all communications and notices provided for herein shall be in
writing or by a telecommunications device capable of creating a written record,
and any such notice shall become effective (a) upon personal delivery thereof,
including, without limitation, by overnight mail or courier service, (b) in the
case of notice by United States mail, certified or registered, postage prepaid,
return receipt requested, upon receipt thereof, or (c) in the case of notice by
such a telecommunications device, upon transmission thereof, provided such
transmission is promptly confirmed by either of the methods set forth in clauses
(a) or (b) above, in each case addressed to each party at the address for such
party provided in Section 16.5 of the Participation Agreement or at such other
address as such party may from time to time designate by written notice to each
of the other parties hereto. A copy of all notices provided for herein shall be
sent by the party giving such notice to each of the other parties hereto.
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Governing Law. THIS PASS THROUGH TRUST AGREEMENT, THE
CERTIFICATES AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER AND
THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Pass Through Trust 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 Pass Through Trust Agreement
and shall in no way affect the validity or enforceability of the other
provisions of this Pass Through Trust Agreement or the Pass Through Trust, or of
the Certificates or the rights of the Holders thereof.
Effect of Headings and Table of Contents. The Article, Section
and subsection headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
Successors and Assign. All covenants, agreements,
representations and warranties in this Pass Through Trust Agreement by the Pass
Through Trustee and the Company shall bind and, to the extent permitted hereby,
shall inure to the benefit of and be enforceable by their respective successors
and assigns, whether so expressed or not.
Benefits of Pass Through Trust Agreement. Nothing in this Pass
Through Trust Agreement or in the Certificates, express or implied, shall give
to any person, other than the Company, the Pass Through Trustee, the Owner Trust
and the Indenture Trustee, and their respective successors, and the Holders of
Certificates, any benefit or any legal or equitable right, remedy or claim under
this Pass Through Trust Agreement.
Legal Holidays. In any case where any Distribution Date or
Special Distribution Date relating to any Certificate shall not be a Business
Day, then (notwithstanding any other provision of this Pass Through Trust
Agreement) payment need not 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
Distribution Date or Special Distribution Date and (provided that such payment
is made on such next succeeding Business Day) no interest shall accrue during
the intervening period.
Counterparts. For the purpose of facilitating the execution of
this Pass Through Trust Agreement and for other purposes, this Pass Through
Trust Agreement may be executed simultaneously in any number of counterparts and
by the separate parties hereto on separate counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Pass Through Trustee have caused
this Pass Through Trust Agreement to be duly executed by their respective
officers and their respective seals to be hereunto affixed, all as of the day
and year first above written.
AES EASTERN ENERGY, L.P.
By:__________________________________
Name:
Title:
BANKERS TRUST COMPANY,
as Pass Through Trustee
By:__________________________________
Name:
Title:
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SCHEDULE 1
Participation Agreements
The Participation Agreements providing for Lease Transactions to be
financed by the purchase of Lessor Notes hereunder, and the parties thereto, are
as follows:
Participation Agreement (Xxxxxxx A-1) dated as of May 1, 1999, among AES
Eastern Energy, L.P., a limited partnership organized under the laws of the
State of Delaware, Xxxxxxx Facility Trust A-1, a business trust organized and
existing under the laws of the State of Delaware, Bankers Trust Company, a
banking corporation organized and existing under the laws of the State of New
York, not in its individual capacity, except as expressly provided therein, but
solely as trustee under the Indenture, and Bankers Trust Company, a banking
corporation organized and existing under the laws of the State of New York, not
in its individual capacity, except as expressly provided therein, but solely as
trustee under the Pass Through Trust Agreements.
Participation Agreement (Xxxxxxx B-1) dated as of May 1, 1999, among AES
Eastern Energy, L.P., a limited partnership organized under the laws of the
State of Delaware, Xxxxxxx Facility Trust B-1, a business trust organized and
existing under the laws of the State of Delaware, Bankers Trust Company, a
banking corporation organized and existing under the laws of the State of New
York, not in its individual capacity, except as expressly provided therein, but
solely as trustee under the Indenture, and Bankers Trust Company, a banking
corporation organized and existing under the laws of the State of New York, not
in its individual capacity, except as expressly provided therein, but solely as
trustee under the Pass Through Trust Agreements.
Participation Agreement (Xxxxxxx C-1) dated as of May 1, 1999, among AES
Eastern Energy, L.P., a limited partnership organized under the laws of the
State of Delaware, Xxxxxxx Facility Trust C-1, a business trust organized and
existing under the laws of the State of Delaware, Bankers Trust Company, a
banking corporation organized and existing under the laws of the State of New
York, not in its individual capacity, except as expressly provided therein, but
solely as trustee under the Indenture, and Bankers Trust Company, a banking
corporation organized and existing under the laws of the State of New York, not
in its individual capacity, except as expressly provided therein, but solely as
trustee under the Pass Through Trust Agreements.
Participation Agreement (Xxxxxxxx A-1) dated as of May 1, 1999, among AES
Eastern Energy, L.P., a limited partnership organized under the laws of the
State of Delaware, Xxxxxxxx Facility Trust A-1, a business trust organized and
existing under the laws of the State of Delaware, Bankers Trust Company, a
banking corporation organized and existing under the laws of the State of New
York, not in its individual capacity, except as expressly provided therein, but
solely as trustee under the Indenture, and Bankers Trust Company, a banking
corporation organized and existing under the laws of the State of New York, not
in its individual capacity,
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except as expressly provided therein, but solely as trustee under the Pass
Through Trust Agreements.
Participation Agreement (Xxxxxxxx B-1) dated as of May 1, 1999, among AES
Eastern Energy, L.P., a limited partnership organized under the laws of the
State of Delaware, Xxxxxxxx Facility Trust B-1, a business trust organized and
existing under the laws of the State of Delaware, Bankers Trust Company, a
banking corporation organized and existing under the laws of the State of New
York, not in its individual capacity, except as expressly provided therein, but
solely as trustee under the Indenture, and Bankers Trust Company, a banking
corporation organized and existing under the laws of the State of New York, not
in its individual capacity, except as expressly provided therein, but solely as
trustee under the Pass Through Trust Agreements.
Participation Agreement (Xxxxxxxx C-1) dated as of May 1, 1999, among AES
Eastern Energy, L.P., a limited partnership organized under the laws of the
State of Delaware, Xxxxxxxx Facility Trust C-1, a business trust organized and
existing under the laws of the State of Delaware, Bankers Trust Company, a
banking corporation organized and existing under the laws of the State of New
York, not in its individual capacity, except as expressly provided therein, but
solely as trustee under the Indenture, and Bankers Trust Company, a banking
corporation organized and existing under the laws of the State of New York, not
in its individual capacity, except as expressly provided therein, but solely as
trustee under the Pass Through Trust Agreements.
Participation Agreement (Xxxxxxx A-2) dated as of May 1, 1999, among AES
Eastern Energy, L.P., a limited partnership organized under the laws of the
State of Delaware, Xxxxxxx Facility Trust A-2, a business trust organized and
existing under the laws of the State of Delaware, Bankers Trust Company, a
banking corporation organized and existing under the laws of the State of New
York, not in its individual capacity, except as expressly provided therein, but
solely as trustee under the Indenture, and Bankers Trust Company, a banking
corporation organized and existing under the laws of the State of New York, not
in its individual capacity, except as expressly provided therein, but solely as
trustee under the Pass Through Trust Agreements.
Participation Agreement (Xxxxxxx B-2) dated as of May 1, 1999, among AES
Eastern Energy, L.P., a limited partnership organized under the laws of the
State of Delaware, Xxxxxxx Facility Trust B-2, a business trust organized and
existing under the laws of the State of Delaware, Bankers Trust Company, a
banking corporation organized and existing under the laws of the State of New
York, not in its individual capacity, except as expressly provided therein, but
solely as trustee under the Indenture, and Bankers Trust Company, a banking
corporation organized and existing under the laws of the State of New York, not
in its individual capacity, except as expressly provided therein, but solely as
trustee under the Pass Through Trust Agreements.
Participation Agreement (Xxxxxxx C-2) dated as of May 1, 1999, among AES
Eastern Energy, L.P., a limited partnership organized under the laws of the
State of Delaware, Xxxxxxx Facility Trust C-2, a business trust organized and
existing under the laws of the State of
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Delaware, Bankers Trust Company, a banking corporation organized and existing
under the laws of the State of New York, not in its individual capacity, except
as expressly provided therein, but solely as trustee under the Indenture, and
Bankers Trust Company, a banking corporation organized and existing under the
laws of the State of New York, not in its individual capacity, except as
expressly provided therein, but solely as trustee under the Pass Through Trust
Agreements.
Participation Agreement (Xxxxxxxx A-2) dated as of May 1, 1999, among AES
Eastern Energy, L.P., a limited partnership organized under the laws of the
State of Delaware, Xxxxxxxx Facility Trust A-2, a business trust organized and
existing under the laws of the State of Delaware, Bankers Trust Company, a
banking corporation organized and existing under the laws of the State of New
York, not in its individual capacity, except as expressly provided therein, but
solely as trustee under the Indenture, and Bankers Trust Company, a banking
corporation organized and existing under the laws of the State of New York, not
in its individual capacity, except as expressly provided therein, but solely as
trustee under the Pass Through Trust Agreements.
Participation Agreement (Xxxxxxxx B-2) dated as of May 1, 1999, among AES
Eastern Energy, L.P., a limited partnership organized under the laws of the
State of Delaware, Xxxxxxxx Facility Trust B-2, a business trust organized and
existing under the laws of the State of Delaware, Bankers Trust Company, a
banking corporation organized and existing under the laws of the State of New
York, not in its individual capacity, except as expressly provided therein, but
solely as trustee under the Indenture, and Bankers Trust Company, a banking
corporation organized and existing under the laws of the State of New York, not
in its individual capacity, except as expressly provided therein, but solely as
trustee under the Pass Through Trust Agreements.
Participation Agreement (Xxxxxxxx C-2) dated as of May 1, 1999, among AES
Eastern Energy, L.P., a limited partnership organized under the laws of the
State of Delaware, Xxxxxxxx Facility Trust C-2, a business trust organized and
existing under the laws of the State of Delaware, Bankers Trust Company, a
banking corporation organized and existing under the laws of the State of New
York, not in its individual capacity, except as expressly provided therein, but
solely as trustee under the Indenture, and Bankers Trust Company, a banking
corporation organized and existing under the laws of the State of New York, not
in its individual capacity, except as expressly provided therein, but solely as
trustee under the Pass Through Trust Agreements.
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EXHIBIT A
FORM OF CERTIFICATE
[LEGEND IF CERTIFICATE IS A RESTRICTED CERTIFICATE]
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTION WHICH IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1),
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO
IN RULE 144(K) UNDER THE SECURITIES ACT, RESELL OR OTHERWISE TRANSFER THIS
CERTIFICATE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER, FURNISHES TO THE PASS THROUGH TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THIS CERTIFICATE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM
THE PASS THROUGH TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
VALUE AT THE TIME OF TRANSFER OF CERTIFICATES OF LESS THAN $100,000, AN OPINION
OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS CERTIFICATE WITHIN THE TIME PERIOD REFERRED TO ABOVE,
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE PASS
THROUGH TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE
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SECURITIES ACT. THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING
THE PASS THROUGH TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE
IN VIOLATION OF THE FOREGOING RESTRICTIONS.
BY ITS ACQUISITION OF ANY CERTIFICATE, THE HOLDER THEREOF WILL BE DEEMED
TO HAVE REPRESENTED AND WARRANTED, ON EACH DAY FROM THE DATE ON WHICH THE HOLDER
ACQUIRES THE CERTIFICATE THROUGH AND INCLUDING THE DATE ON WHICH THE HOLDER
DISPOSES OF ITS INTEREST IN SUCH CERTIFICATE, EITHER THAT (A) IT IS NOT A PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR OTHER PLAN, AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE THE ASSETS
OF ANY PLAN SUBJECT TO ERISA OR OTHER PLAN, OR A GOVERNMENTAL PLAN WHICH IS
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO THE
PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE"), OR (B) ITS PURCHASE, HOLDING AND DISPOSITION
OF SUCH CERTIFICATE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A GOVERNMENTAL
PLAN, ANY SUBSTANTIALLY SIMILAR FEDERAL, STATE OR LOCAL LAW) FOR WHICH AN
EXEMPTION IS NOT AVAILABLE, ALL THE CONDITIONS OF WHICH ARE SATISFIED.
[__________]
Series 1999-A PASS THROUGH TRUST
[___]% Pass Through
Certificate, Series 1999-A
CUSIP:
Final Distribution Date: [__________]
evidencing a fractional undivided interest in a trust,
the property of which includes certain notes secured
by certain property leased to AES Eastern Energy, L.P.
Certificate No._______ Fractional Undivided Interest
THIS CERTIFIES THAT _________________, for value received, is the
registered owner of a $______________ (__________ dollars) Fractional Undivided
Interest in the Series 1999-A Pass Through Trust (the "Pass Through Trust")
created pursuant to a Pass Through
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Trust Agreement dated as of May 1, 1999 (the "Agreement") between Bankers Trust
Company, as trustee (the "Pass Through Trustee"), and AES Eastern Energy, L.P.,
a limited partnership organized under the laws of the State of Delaware (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 1999-A" (herein called the "Certificates"). This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
The property of the Pass Through Trust includes certain Lessor Notes (the "Trust
Property"). The Lessor Notes are secured by a security interest in the Facility,
and liability under the Lessor Notes is limited to the income and proceeds of
such security.
Subject to and in accordance with the terms of the Agreement, from funds
then available to the Pass Through Trustee, there will be distributed on each
January 2 and July 2 (a "Distribution Date"), commencing on January 2, 2000, to
the person in whose name this Certificate is registered at the close of business
on the day which is 15 days preceding the Distribution Date, an amount in
respect of the Scheduled Payments on the Lessor Notes (the receipt of which has
been confirmed by the Pass Through Trustee) due on such Distribution Date equal
to the product of the percentage interest in the Pass Through Trust evidenced by
this Certificate and an amount equal to the sum of such Scheduled Payments.
Subject to and in accordance with the terms of the Agreement, in the event that
Special Payments on the Lessor Notes are received by the Pass Through Trustee,
from funds then available to the Pass Through Trustee there shall be distributed
on the applicable Special Distribution Date, to the Person in whose name this
Certificate is registered at the close of business on the day which is 15 days
preceding the Special Distribution Date, an amount in respect of such Special
Payments on the Lessor Notes, the receipt of which has been confirmed by the
Pass Through Trustee, equal to the product of the percentage interest in the
Pass Through Trust evidenced by this Certificate and an amount equal to the sum
of such Special Payments so received. The Special Distribution Date shall be
determined as provided in the Agreement. If a Distribution Date or Special
Distribution Date is not a Business Day, distribution shall be made on the
immediately following Business Day. The Pass Through Trustee shall mail notice
of each Special Payment and the Special Distribution Date therefor to the
Holders of the Certificates.
Distributions on this Certificate will be made by the Pass Through Trustee
by (i) if (A) The Depository Trust Company ("DTC") is the Certificateholder of
record of this Certificate, or (B) a Certificateholder holds a Certificate or
Certificates in an aggregate amount greater than $10,000,000, or (C) a
Certificateholder holds a Certificate or Certificates in an aggregate amount
greater than $1,000,000 and so requests to the Pass Through Trustee, by wire
transfer in immediately available funds to an account maintained by such
Certificateholder with a bank, or (ii) if none of the above apply, by check
mailed to such Certificateholder at the address appearing in the Register,
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 Pass Through Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency of the Pass Through Trustee specified in such notice.
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[Unless this Certificate is presented by an authorized representative of
DTC to the Company 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.]*
Each Person who acquires or accepts this Certificate or an interest herein
will be deemed by such acquisition or acceptance to have represented and
warranted that either: (i) no Plan Assets or assets of any entity whose
underlying assets include Plan Assets have been used to purchase this
Certificate or an interest herein; or (ii) the purchase and holding of this
Certificate or interest herein are either exempt from the prohibited transaction
restrictions of Section 406 of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code") (or, for governmental employee benefit plans, any
similar Federal, State or local law), pursuant to one or more prohibited
transaction statutory or administrative exemptions or do not constitute a
prohibited transaction under such restrictions of ERISA and the Code (or such
similar Federal, State or local law). For purposes of this paragraph, "Plan
Assets" means the assets of any "employee benefit plan" subject to ERISA, any
plan or individual retirement arrangement described in Section 4975(e) of the
Code or any governmental employee benefit plan.
This Certificate shall be governed by and construed in accordance with the
law of the State of New York.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Pass Through Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Pass Through Trustee has caused this Certificate
to be duly executed.
SERIES 1999-A PASS THROUGH TRUST
By: Bankers Trust Company, as Pass
Through Trustee
-------------------
* This legend to appear on Book-Entry Certificates to be deposited with The
Depository Trust Company.
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By:______________________________________
Name:
Title:
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[Reverse Of Certificate]
The Certificates do not represent a direct obligation of, or an obligation
guaranteed by, or an interest in, the Company, the Pass Through Trust Company or
the Pass Through Trustee or any affiliate thereof, and the Certificates are
limited in right of payment, all as more specifically set forth 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 Pass Through Trustee shall have received 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 Holder 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 Pass Through Trustee, and at such other places, if any,
designated by the Pass Through Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Certificateholders under the Agreement at any time
by the Company and the Pass Through Trustee with the consent of the Holders of
Certificates evidencing Fractional Undivided Interests aggregating not less than
a majority in interest of the Fractional Undivided Interests evidenced by all
Certificates at the time Outstanding. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder 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 Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate may be registered in the Register
upon surrender of this Certificate for registration of transfer at the offices
or agencies maintained by the Pass Through Trustee in its capacity as Registrar,
or by any successor Registrar, in the The City of New York, the State of New
York, duly endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Pass Through Trustee and the Registrar duly executed by the
Holder hereof or such Holder'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 Pass Through Trust will
be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in minimum denominations of $100,000 Fractional Undivided Interest and
any integral multiples of $1,000 in excess thereof. As provided in the Agreement
and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of authorized denominations evidencing the
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same aggregate Fractional Undivided Interest in the Pass Through Trust, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Pass-Through Trustee shall require payment of an amount
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Pass Through Trustee, the Company, the Owner Trust, the Registrar and
any Paying Agent may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Pass Through
Trustee, the Company, the Owner Trust, the Registrar nor any Paying Agent shall
be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the Pass
Through Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
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EXHIBIT B
FORM OF THE PASS THROUGH TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Date:
This is one of the Certificates referred
to in the within-mentioned Agreement.
Bankers Trust Company,
as Pass Through Trustee
By:_______________________________________
Authorized Officer
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EXHIBIT C
FORM OF TRANSFER CERTIFICATE
SERIES 1999-A PASS THROUGH TRUST
PASS THROUGH CERTIFICATES, SERIES 1999-A
This is to certify that as of the date hereof with respect to $__________
Fractional Undivided Interest of the above-captioned securities presented or
surrendered on the date hereof (the "Surrendered Certificates") for registration
of transfer, or for exchange where the securities issuable upon such exchange
are to be registered in a name other than that of the undersigned Holder (each
such transaction being a "transfer"), the undersigned Holder (as defined in the
Agreement) certifies that the transfer of Surrendered Certificates associated
with such transfer complies with the restrictive legend set forth on the face of
the Surrendered Certificates for the reason checked below:
- Transfer to the Company or any subsidiary thereof
- Transfer to a Qualified Institutional Buyer in compliance with Rule 144A
under the Securities Act.
- Transfer pursuant to an exemption from registration provided by Rule 144
under the Securities Act (if available).
- Transfer pursuant to an effective registration statement under the
Securities Act.
- Transfer outside the United States in compliance with Rule 904 of the
Securities Act.
- Transfer inside the United States to an Institutional Accredited Investor
that has previously furnished to the Pass Through Trustee a signed letter
containing certain representations and agreements relating to restrictions
on transfer and if such transfer is in respect of an aggregate Fractional
Undivided Interest of less than $100,000, an opinion of counsel acceptable
to the Company that such transfer is in compliance with the Securities
Act.
[Name of Holder]
----------------
Dated: _____________, _____*
_________________________
* To be dated the date of presentation or surrender.
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EXHIBIT D
FORM OF PURCHASE LETTER FOR
INSTITUTIONAL ACCREDITED INVESTORS
XXXXXX XXXXXXX & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
CIBC WORLD MARKETS CORP.
As Initial Purchasers in connection
with the Offering Circular referred
to below
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of Pass Through
Certificates, Series 1999 (the "Certificates") evidencing a fractional undivided
interest in a trust, the property of which consists of certain notes secured by
certain property leased to AES Eastern Energy, L.P. (the "Company"), we confirm
that:
1. We have received a copy of the Offering Circular (the "Offering
Circular") relating to the Certificates and such other information as we
deem necessary in order to make our investment decision. We acknowledge
that we have read and agree to the matters stated under the captions
"Notice to Investors" and "Plan of Distribution" in such Offering
Circular, and the restrictions on duplication and circulation of such
Offering Circular.
2. We understand that any subsequent transfer of the Certificates is
subject to certain restrictions and conditions set forth in the Pass
Through Trust Agreements (each, a "Pass Through Trust Agreement" and
collectively, the "Pass Through Trust Agreements") relating to each series
of the Certificates and conditions set forth under "Notice to Investors"
and "Plan of Distribution" and we agree to be bound by, and not to resell,
pledge or otherwise transfer the Certificates except in compliance with
such restrictions and conditions and the Securities Act of 1933, as
amended (the "Securities Act").
3. We understand that the offer and sale of the Certificates has not
been registered under the Securities Act, and that the Certificates may
not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that if we should sell any Certificates
within the time period referred to in Rule 144(k) of the Securities Act,
we
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will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes to the Pass Through Trustee under the Pass Through Trust
Agreements, a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the Certificates
(the form of which letter can be obtained from the Pass Through Trustee)
and, if such transfer is in respect of an aggregate principal amount at
the time of transfer of Certificates of less than $100,000, an opinion of
counsel acceptable to the Company that such transfer is in compliance with
the Securities Act, (D) outside the United States in accordance with Rule
904 of Regulation S under the Securities Act, (E) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act
(if available), or (F) pursuant to an effective registration statement
under the Securities Act, and we further agree to provide to any person
purchasing any of the Certificates from us a notice advising such
purchaser that resales of the Certificates are restricted as stated
herein.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Certificates, and we and any accounts for which we are acting are each
able to bear the economic risk of our or its investment.
5. We are acquiring the Certificates purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
6. We are not acquiring the Certificates with a view to distribution
thereof or with any present intention of offering or selling any
Certificates, except as permitted above; provided, that the disposition of
our property and property of any accounts for which we are acting as
fiduciary will remain at all times within our control.
You, the Company and the Pass Through Trustee are entitled to rely
on this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Very truly yours,
By:______________________________
Name:
Title:
Date:
58
