EXHIBIT 4.d
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TRUST AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N583FE)
Dated as of May 1, 1997
as amended and restated as of September 1, 1997
between
BNY LEASING CORPORATION,
Trustor
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Owner Trustee
COVERING ONE XXXXXXXXX XXXXXXX MD-11F AIRCRAFT
SERIAL NO. 48421, REGISTRATION NO. N583FE
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TABLE OF CONTENTS
PARTIES.................................................................... 1
RECITALS................................................................... ?
ARTICLE 1
THE LESSOR'S ESTATE
Section 1.01. Authorization and Direction to Owner Trustee............. 1
Section 1.02. Declaration of Trust..................................... 2
Section 1.03. Conditions Precedent and Advances by Trustor............. 2
ARTICLE 2
DISTRIBUTIONS
Section 2.01. Rent, Etc................................................ 2
Section 2.02. Excepted Payments........................................ 3
Section 2.03. Other Receipts........................................... 3
Section 2.04. Distributions after Default.............................. 4
Section 2.05. Distributions after Release of Lien of Indenture......... 4
Section 2.06. Manner of Making Distributions........................... 4
ARTICLE 3
THE OWNER TRUSTEE
Section 3.01. Acceptance of Trust and Duties........................... 5
Section 3.02. Limitation on Authority of Owner Trustee................. 5
Section 3.03. Notice of Default........................................ 6
Section 3.04. Action Upon Instructions................................. 6
Section 3.05. Certain Duties and Responsibilities of Owner Trustee..... 6
Section 3.06. Certain Rights of Owner Trustee.......................... 8
Section 3.07. No Representations or Warranties as to Certain Matters... 9
Section 3.08. Status of Moneys Received................................ 10
Section 3.09. Self-Dealing............................................. 10
Section 3.10. Definition of a Responsible Officer...................... 11
Section 3.11. Resignation or Removal of Owner Trustee.................. 11
Section 3.12. Estate and Rights of Successor Owner Trustee............. 11
Section 3.13. Merger or Consolidation of SSB........................... 12
Section 3.14. Co-Trustees.............................................. 12
Section 3.15. Interpretation of Agreements............................. 13
Section 3.16. Not Acting in Individual Capacity........................ 14
Section 3.17. Tax Returns.............................................. 14
ARTICLE 4
TERMINATION OF TRUST
Section 4.01. Termination.............................................. 14
Section 4.02. Termination at Option of the Trustor..................... 15
Section 4.03. Distribution of Lessor's Estate upon Termination......... 15
ARTICLE 5
[RESERVED]
ARTICLE 6
MISCELLANEOUS
Section 6.01. Indemnification.......................................... 16
Section 6.02. Supplements and Amendments............................... 17
Section 6.03. Nature of Title of Trustor............................... 18
Section 6.04. Power of Owner Trustee to Convey......................... 18
Section 6.05. Notices.................................................. 18
Section 6.06. Situs of Trust; Applicable Law; Severability............. 19
Section 6.07. Successors and Assigns................................... 19
Section 6.08. Headings and Table of Contents........................... 19
Section 6.09. Definitions.............................................. 19
Section 6.10. Identification of Trust.................................. 19
Section 6.11. Counterparts............................................. 20
Section 6.12. Trustor Interest......................................... 20
Schedule I Definitions
TRUST AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N583FE)
TRUST AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO. N583FE) dated
as of May 1, 1997, as amended and restated as of September 1, 1997 (this
"Agreement") between STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, a national banking association (in its individual
capacity, "SSB", and not in its individual capacity but solely as trustee
hereunder, the "Owner Trustee"), and BNY LEASING CORPORATION, a New York
corporation (together with its successors and permitted assigns, the
"Trustor");
WITNESSETH:
WHEREAS, the Initial Owner Participant and SSB have heretofore entered
into the Original Trust Agreement;
WHEREAS, the Initial Owner Participant has transferred its Beneficial
Interest to the Owner Participant; and
WHEREAS, the Initial Owner Participant and SSB have agreed that the
Original Trust Agreement be amended and restated in its entirety as herein
provided.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, SSB and the Trustor agree that the Original Trust Agreement
be and the same is hereby amended and restated in its entirety as follows:
ARTICLE 1
THE LESSOR'S ESTATE
Section 1.01. Authorization and Direction to Owner Trustee. Subject
to the satisfaction of the conditions set forth in Section 4.01 of the
Participation Agreement, the Trustor hereby authorizes and directs the Owner
Trustee, not individually but solely as the Owner Trustee hereunder:
(a) to execute and deliver the Participation Agreement and each of
the other Operative Agreements to which the Owner Trustee is a party and to
enter into and perform the transactions contemplated thereby, including,
without limitation, accepting title to, and delivery of, the Aircraft from
the Lessee on the Delivery Date, and taking all appropriate action to cause
the Airframe to be registered with the Federal Aviation Administration in
the name of the Owner Trustee;
(b) to execute and deliver from time to time the Certificates in the
manner and subject to the terms and conditions provided in the
Participation Agreement and the Indenture;
(c) to execute and deliver each other document referred to in the
Operative Agreements to which the Owner Trustee is a party or which the
Owner Trustee is required to deliver pursuant to the Operative Agreements;
(d) subject to the terms of this Agreement, to perform the
obligations and duties and, upon instruction of the Trustor, exercise the
rights of the Owner Trustee under the Operative Agreements; and
(e) to execute and deliver all such other instruments, documents or
certificates and take all such other actions in accordance with the
directions of the Trustor, as the Trustor may deem necessary or advisable
in connection with the Delivery Date and the transactions contemplated
hereby, the taking of any such action by the Owner Trustee in the presence
of the Trustor or its counsel to evidence, conclusively, the direction of
the Trustor.
Section 1.02. Declaration of Trust. SSB hereby confirms, in its
individual capacity, that it holds and will continue to hold, in its capacity
as the Owner Trustee, the Lessor's Estate upon the trust herein set forth for
the use and benefit of the Trustor, subject, however, to the provisions of,
and the Lien created by, the Indenture. This Agreement is not intended by the
Trustor to create, and the trust created hereby is not intended by the Trustor
and the other parties interested herein to constitute a business trust for
purposes of the Bankruptcy Code.
Section 1.03. Conditions Precedent and Advances by Trustor. The
Trustor agrees to make advances to the Owner Trustee in such amounts and at
such times as may be necessary to permit the Owner Trustee to satisfy its
obligations under Section 2.01 of the Participation Agreement, subject to the
conditions set forth therein. The right and obligation of the Owner Trustee
to take the actions required by Section 1.01 hereof shall be subject to the
condition that the Trustor shall have made the full amount of the advances
required to be made by the Trustor pursuant to Section 2.01(a) of the
Participation Agreement.
ARTICLE 2
DISTRIBUTIONS
Section 2.01. Rent, Etc. The Trustor and the Owner Trustee
acknowledge that the Lease will be security for the Certificates pursuant to
the Indenture which provides that all moneys payable by the Lessee to the
Owner Trustee under the Lease (other than Excepted Payments) are to be paid to
the Indenture Trustee while the Lien of the Indenture is in effect. Except as
otherwise provided in Section 2.04 hereof, the Owner Trustee shall promptly
apply each payment of Rent (other than Excepted Payments), Stipulated Loss
Value, Termination Value, and any proceeds from the sale, requisition or
disposition of the Aircraft received by it (other than any amounts received
from the Indenture Trustee) as follows:
(a) prior to the release of the Lien of the Indenture, each such
payment shall be payable directly to the Indenture Trustee (and if any of
the same are received by the Owner Trustee shall, upon receipt, be paid
over to the Indenture Trustee without deduction, set off or adjustment of
any kind) for distribution in accordance with the provisions of Article V
of the Indenture; provided, that any payments received by the Owner Trustee
from (i) the Lessee with respect to SSB's or the Owner Trustee's fees and
disbursements under this Agreement, or (ii) the Trustor pursuant to Section
6.01 hereof shall not be paid over to the Indenture Trustee but shall be
retained by the Owner Trustee and applied toward the purpose for which such
payments were made;
(b) any amount remaining after application in full in accordance with
paragraph (a) of this Section 2.01 and which represents payments for which
provision as to the application thereof is made in any other Operative
Agreement shall be applied promptly to the purpose for which such payment
shall have been made in accordance with the terms of such Operative
Agreement; and
(c) after application in accordance with paragraphs (a) and (b) of
this Section 2.01, or to the extent received from the Indenture Trustee
under the terms of the Indenture, the balance, if any, remaining shall be
paid to the Trustor.
Section 2.02. Excepted Payments. Notwithstanding any other provision
contained herein, all Excepted Payments at any time received by the Owner
Trustee shall be distributed promptly to the applicable Person entitled
thereto under the terms of the Operative Agreements, and such payment shall
not be deemed under any circumstances to be part of the Lessor's Estate.
Section 2.03. Other Receipts. Except as otherwise provided in
Section 2.04 hereof, any payment received by the Owner Trustee, other than
those referred to in Sections 2.01 and 2.02 hereof, shall be payable prior to
the release of the Lien of the Indenture directly to the Indenture Trustee
(and if any of the same are received by the Owner Trustee shall, upon receipt,
be paid over to the Indenture Trustee without deduction, set off or adjustment
of any kind) for distribution in accordance with the provisions of Article V
of the Indenture; and following such distribution or release of Lien, any such
payment for which provision as to the distribution thereof is made in the
other Operative Agreements shall be applied promptly to the purpose for which
such payment shall have been made in accordance with the terms of the other
Operative Agreements, and any such payment received by the Owner Trustee for
which no provision as to the application thereof is made in the Operative
Agreements or in this Article 2 shall, unless the Trustor shall have otherwise
instructed the Owner Trustee in writing, be distributed promptly to the
Trustor.
Section 2.04. Distributions after Default. Subject to the
provisions of Section 2.02 hereof, (i) all payments received and amounts
realized by the Owner Trustee after an Indenture Event of Default shall have
occurred and shall be continuing and after the Certificates shall have become
or been declared due and payable pursuant to Section 7.02(b) or 7.02(c) of the
Indenture or the Lease shall have become or been declared in default
(including, without limitation, any amounts realized by the Owner Trustee or
the Trustor from the exercise of any remedies pursuant to Section 17.01 of the
Lease), as well as (ii) all funds then held or thereafter received by the
Owner Trustee as part of this Trust Agreement, the Lease or otherwise, shall be
distributed to the Indenture Trustee for distribution in accordance with the
provisions of Article V of the Indenture.
Section 2.05. Distributions after Release of Lien of Indenture.
Except as otherwise provided in Sections 2.01, 2.02, 2.03 and 2.04 hereof:
(a) all payments received and amounts realized by the Owner
Trustee under the Lease or otherwise with respect to the Aircraft or
any part thereof (including, without limitation, all payments
received pursuant to Section 17.01 of the Lease and amounts realized
upon the sale or lease of the Aircraft or any part thereof after the
termination of the Lease with respect thereto), to the extent
received or realized at any time after the Lien of the Indenture
shall have been released pursuant to the terms of the Indenture, and
(b) moneys not included in paragraph (a) of this Section 2.05
remaining as part of the Lessor's Estate after the Lien of the
Indenture has been released,
shall, to the extent required, be retained by the Owner Trustee as
reimbursement for all fees and expenses hereunder or under the Lease not
theretofore reimbursed under this Agreement, the Lease or otherwise and to
which the Owner Trustee is entitled to be reimbursed pursuant to the
provisions thereof, and any balance remaining thereafter shall be distributed
to the Trustor.
Section 2.06. Manner of Making Distributions. The Owner Trustee
shall make distributions or cause distributions to be made to (i) the Trustor
pursuant to this Article 2 by transferring by wire transfer in immediately
available funds the amount to be distributed to such account or accounts of
the Trustor as it may designate from time to time by written notice to the
Owner Trustee (and the Owner Trustee shall use best efforts to cause such
funds to be transferred by wire transfer on the same day as received, but in
any case not later than the next succeeding Business Day), and (ii) the
Indenture Trustee pursuant to this Article 2 by paying the amount to be
distributed to the Indenture Trustee in the manner specified in the Indenture;
provided, that the Owner Trustee shall invest overnight, for the benefit of
the Trustor, in investments that would be permitted by Article 23 of the Lease
(but only to the extent funds are received on or prior to 1:00 P.M. (Eastern
Time) and such investments are available and, if such investments are not
available to the Owner Trustee in investments which, after consultation with
the Trustor, the Trustor shall direct) all funds not transferred by wire
transfer on the same day as they were received. Notwithstanding the foregoing
but subject always to the provisions of, and the Lien created by, the
Indenture, the Owner Trustee will, if so requested by the Trustor by written
notice, pay in immediately available funds any and all amounts payable by the
Owner Trustee hereunder to the Trustor as directed by the Trustor.
ARTICLE 3
THE OWNER TRUSTEE
Section 3.01. Acceptance of Trust and Duties. SSB accepts the trust
hereby created and, subject to Section 1.03 hereof, in its capacity as the
Owner Trustee agrees to perform the same, including without limitation,
subject to Section 1.03 hereof, the actions specified in Section 1.01 hereof
as herein provided. The Owner Trustee agrees to disburse all monies that it
receives under the Operative Agreements in accordance with the terms hereof.
The Owner Trustee shall not be answerable or accountable in its individual
capacity except as a result of or arising from (a) the Owner Trustee's willful
misconduct or gross negligence (in its individual capacity or as trustee), (b)
any breach by the Owner Trustee of its representations, warranties and
covenants given in its individual capacity in this Agreement, Article 5 of the
Lease, Sections 7.01(c), 7.02(a) and (b) and 7.04 of the Participation
Agreement or elsewhere in the Operative Agreements, (c) the failure to use
ordinary care in receiving, handling and disbursing funds, (d) Lessor's Liens
attributable to it in its individual capacity, and (e) taxes, fees, or other
charges on, based on, or measured by, any fees, commissions or compensation
received by SSB or the Owner Trustee in connection with the transactions
contemplated by the Lease, the Indenture and the Operative Agreements
including this Agreement.
Section 3.02. Limitation on Authority of Owner Trustee. The Owner
Trustee shall have no power, right, duty or authority to, and agrees that it
will not, manage, control, possess, use, sell, lease, dispose of or otherwise
deal with the Aircraft, Airframe, Engines, any Part thereof or any other
property at any time constituting a part of the Lessor's Estate, or otherwise
to take or refrain from taking any action under or in connection with the
Operative Agreements, except (i) to execute and deliver the Operative
Agreements to which it is a party, (ii) to exercise and carry out or cause to
be exercised or carried out the rights, duties and obligations of the Owner
Trustee hereunder and under the other Operative Agreements, or (iii) as
expressly provided in written instructions from the Trustor given pursuant to
Section 1.01, 3.03 or 3.04 hereof; provided, that nothing in this Section 3.02
shall limit in any manner the obligations of the Owner Trustee hereunder.
Section 3.03. Notice of Default. In the event that a Responsible
Officer in the Corporate Trust Administration of the Owner Trustee shall have
actual knowledge of a Default or an Event of Default, or an Indenture Default
or an Indenture Event of Default, the Owner Trustee shall give or cause to be
given to the Trustor and the Indenture Trustee prompt telephone or facsimile
notice, followed by prompt confirmation thereof by certified mail, postage
prepaid (in any event within two Business Days of the discovery thereof), in
accordance with Article 14 of the Participation Agreement, of such Default,
Event of Default, Indenture Default or Indenture Event of Default. Subject to
the terms of Section 3.06(e) hereof and the rights of the Indenture Trustee
and the Holders of the Certificates under the Indenture, the Owner Trustee
shall take such action with respect to such Default, Event of Default,
Indenture Default or Indenture Event of Default as shall be specified in
written instructions from the Trustor; provided that the Owner Trustee shall
have no duty to take any (and shall take no) action whatsoever in the absence
of written instructions from the Trustor. For all purposes of this Agreement
and the Lease, in the absence of actual knowledge of a Responsible Officer of
the Owner Trustee, the Owner Trustee shall not be deemed to have knowledge of
a Default, Event of Default, Indenture Default or Indenture Event of Default
unless notified in writing by the Lessee, the Trustor, the Indenture Trustee
or any Certificate Holder.
Section 3.04. Action Upon Instructions. Upon the written
instructions at any time and from time to time of the Trustor (which the
Trustor agrees shall not be inconsistent with the provisions of the
Indenture), the Owner Trustee will take or refrain from taking such action as
may be specified in such instructions.
Section 3.05. Certain Duties and Responsibilities of Owner Trustee.
(a)(i) The Owner Trustee undertakes to perform such duties and only such
duties as are specifically set forth herein, and with the degree of care
specified in Section 3.01 hereof, and in accordance with written instructions
given by the Trustor hereunder, and no implied duties, covenants or
obligations shall be read into this Agreement, any such instructions or the
Operative Agreements against the Owner Trustee, and the Owner Trustee agrees
that it will not manage, control, possess, use, sell, lease, dispose of or
otherwise deal with the Aircraft or any part of the Lessor's Estate except as
required by the terms of the Operative Agreements, any such instructions and as
otherwise provided herein; and
(ii) in the absence of bad faith on its part, the Owner Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Owner Trustee and conforming to the requirements of this Agreement or
the other Operative Agreements, but in the case of any such certificates or
opinions which by any provisions hereof or thereof are specifically
required to be furnished to the Owner Trustee, the Owner Trustee shall be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Trust Agreement or the Operative Agreements.
(b) No provision hereof shall require SSB in its individual capacity
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall in good faith believe that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Notwithstanding the foregoing, SSB agrees in its individual
capacity that it will, at its own cost and expense, promptly take such action
as may be necessary to discharge duly all Lessor's Liens attributable to it
in its individual capacity and will claim no indemnity therefor hereunder, or
under the Participation Agreement or any Operative Agreement. SSB agrees to
indemnify, protect, save and keep harmless the Owner Participant from and
against any loss, cost or expense (including the legal fees and expenses)
incurred by the Owner Participant, as a result of the imposition or
enforcement of any such Lessor's Lien against the Aircraft, any interest
therein or on the Lessor's Estate or the Trust Indenture Estate resulting from
Lessor's Liens attributable to SSB.
(c) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Owner Trustee shall be subject to the provisions
of this Section 3.05, except that in the event of a conflict between this
Section 3.05 and Section 3.01 hereof, Section 3.01 hereof shall be
controlling.
(d) The Owner Trustee will furnish to the Trustor, promptly upon
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments
furnished to the Owner Trustee hereunder or under the other Operative
Agreements or the Original Agreements (including those furnished to the
Indenture Trustee pursuant to the terms of the Indenture) and not otherwise
furnished to the Trustor.
(e) Notwithstanding anything herein to the contrary, the Owner Trustee
shall not be authorized and shall have no power to "vary the investment" of the
Trustor within the meaning of Treasury Regulations Section 301.7701-4(c)(1),
it being understood that the Owner Trustee shall have the power and authority
to fulfill its obligations under Section 2.06 hereof and Article 23 of the
Lease.
Section 3.06. Certain Rights of Owner Trustee. Except as otherwise
provided in Section 3.05 hereof:
(a) in the absence of bad faith on its part, the Owner Trustee may
rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction or authorization by the Trustor or any
other party to any other Operative Agreement shall be sufficiently
evidenced by a request, direction or authorization in writing, delivered to
the Owner Trustee, and signed in the name of such party by any of the
Chairman of the Board, the President, any Vice President, the Treasurer or
Assistant Treasurer or the Secretary or Assistant Secretary or other duly
authorized officer of such party; and any resolution of the Board of
Directors or committee thereof of such party shall be sufficiently
evidenced by a copy of such resolution certified by the Secretary or an
Assistant Secretary of such party, to have been duly adopted and to be in
full force and effect on the date of such certification, and delivered to
the Owner Trustee;
(c) whenever in the administration of this Agreement the Owner
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder or under any
of the other Operative Agreements, the Owner Trustee (unless other
evidence be herein or therein specifically prescribed), absent actual
knowledge of a Responsible Officer of the Owner Trustee to the contrary,
may rely in good faith upon a certificate in writing, delivered to the
Owner Trustee and signed by any of the Chairman of the Board, the
President, any Vice President, the Treasurer or Assistant Treasurer or
the Secretary or Assistant Secretary of the Lessee, the Trustor, or the
Indenture Trustee and notice of such need for such proof or
establishment shall be delivered to the Trustor, who may advise the
Owner Trustee in respect of such matter and the Owner Trustee shall act
in conformity with such advice;
(d) the Owner Trustee may exercise its powers and perform its duties
by or through such attorneys, agents and servants as it shall appoint with
due care, and it shall be entitled to rely upon the advice of counsel
reasonably selected by it with due care and shall be protected by the
advice of such counsel in anything done or omitted to be done in accordance
with such advice;
(e) the Owner Trustee shall not be under any obligation to take any
action under this Agreement or under any of the other Operative Agreements
at the request or direction of the Trustor unless the Trustor making such
request or direction shall have offered to the Owner Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction; nor
shall the Owner Trustee be required to take any action deemed to impose on
the Owner Trustee any obligation to take any action, if the Owner Trustee
shall have been advised by its counsel that such action is unlawful or is
contrary to the terms of this Agreement or the other Operative Agreements;
(f) the Owner Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order or
other paper or document unless a Responsible Officer of the Owner Trustee
has actual knowledge that the facts or matters stated therein are false or
inaccurate, but the Owner Trustee may make such further inquiry or
investigation into such facts or matters as instructed by the Trustor and
the Owner Trustee shall be entitled, to the same extent permitted to the
Lessor under the Lease, to examine the books and records of the Lessee to
reasonably determine whether the Lessee is in compliance with the terms and
conditions of the Lease and to examine the Aircraft, Airframe, Engines or
any Part thereof personally or by agent or attorney; and
(g) without limiting the generality of Section 3.05 hereof, except as
otherwise provided in written instructions given to the Owner Trustee by
the Trustor or as otherwise provided herein, in the Indenture or the
Participation Agreement, the Owner Trustee shall not have any duty (i) to
see to any recording or filing of the Lease or of this Agreement or any
financing statement or other notice or document relating thereto or
contemplated under the Operative Agreements or to see to the maintenance of
any such recording or filing (other than FAA reporting requirements
contained in 14 C.F.R. Sections 47.45 and 47.51), (ii) to see to any
insurance on the Aircraft or any part thereof or to effect or maintain any
such insurance, whether or not the Lessee shall be in default with respect
thereto, other than to forward to the Trustor copies of all certificates,
reports and other written information which it receives from the Lessee
pursuant to the Lease, (iii) to see to the payment or discharge of any tax,
assessment or other governmental charges or any Lien (except any Lessor's
Lien attributable to it in its individual capacity) owing with respect to,
or assessed or levied against any part of the Lessor's Estate, (iv) to
confirm or verify any financial statements or reports of the Lessee, or (v)
to inspect the Aircraft at any time or ascertain or inquire as to the
performance or observance of any of the Lessee's covenants under the Lease.
Section 3.07. No Representations or Warranties as to Certain
Matters. NEITHER THE OWNER TRUSTEE NOR SSB MAKES OR SHALL BE DEEMED TO HAVE
MADE (a) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE,
AIRWORTHINESS, VALUE, CONDITION, WORKMANSHIP, DESIGN, COMPLIANCE WITH
SPECIFICATIONS, CONSTRUCTION, OPERATION, MERCHANTABILITY OR FITNESS FOR USE
FOR A PARTICULAR PURPOSE OF THE AIRCRAFT, AS TO THE ABSENCE OF LATENT OR OTHER
DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF
ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON
STRICT LIABILITY IN TORT, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE AIRCRAFT OR ANY PART THEREOF, except
that SSB represents and warrants that on the Delivery Date the Owner Trustee
shall have received whatever rights, title and interests in, to and under the
Aircraft that were purported to be conveyed to it by the Lessee and SSB
represents, warrants and covenants that at all times on and after the Delivery
Date the Aircraft shall be free of all Lessor's Liens attributable to it, and
that the Owner Trustee shall comply with the last sentence of Section 3.05(b)
hereof, or (b) any representation or warranty as to the validity, legality or
enforceability of this Agreement or any other Operative Agreement to which the
Owner Trustee is a party, or any other document or instrument, or as to the
correctness of any statement contained in any thereof, except to the extent
that any such representation, warranty or statement is expressly made herein
or therein as a representation or warranty by the Owner Trustee or SSB and
except that SSB hereby represents and warrants that this Agreement has been,
and (assuming the due authorization, execution and delivery of this Agreement
by the Trustor) the other Operative Agreements to which the Owner Trustee is a
party have been (or at the time of execution and delivery of any such
instrument by the Owner Trustee hereunder or pursuant to the terms of the
Participation Agreement that such an instrument will be) duly executed and
delivered by one of its officers who is or will be, as the case may be, duly
authorized to execute and deliver such instruments on behalf of the Owner
Trustee and that this Agreement has been duly authorized, executed and
delivered by SSB and (assuming due authorization, execution and delivery of
this Trust Agreement by the Trustor) constitutes the legal, valid and binding
obligation of SSB enforceable against it in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally and by general principles of equity.
Section 3.08. Status of Moneys Received. All moneys received by the
Owner Trustee under or pursuant to any provision of this Agreement or any
Operative Agreement shall constitute trust funds for the purpose for which
they were paid or are held, but need not be segregated in any manner from any
other moneys except to the extent required by law and may be deposited by the
Owner Trustee under such conditions as may be prescribed or permitted by law
for trust funds, or may be invested in direct obligations of the United
States.
Section 3.09. Self-Dealing. SSB in its individual capacity, or any
corporation in or with which SSB may be interested or affiliated, or any
officer or director of any such corporation, may have normal commercial
relations, and otherwise deal, in the ordinary course of business, with the
Lessee or any other corporation having relations with the Lessee to the full
extent permitted by law.
Section 3.10. Definition of a Responsible Officer. For purposes of
this Trust Agreement only, "Responsible Officer" when used with respect to the
Owner Trustee means the Chairman or the Vice-Chairman of the Board of
Directors, the Chairman or Vice-Chairman of the Executive Committee of the
Board of Directors, the President, any Vice President (whether or not
designated by a number or a word or words added before or after the title
"Vice President"), the Secretary, any Assistant Secretary, or any other
officer in the Corporate Trust Department of SSB customarily performing
functions similar to those performed by any of the above designated officers.
Section 3.11. Resignation or Removal of Owner Trustee. The Owner
Trustee or any successor thereof (a) shall resign if required to do so
pursuant to Section 7.02(b) of the Participation Agreement and (b) may resign
at any time without cause by giving at least 60 days' prior written notice to
the Trustor and the Indenture Trustee, such resignation in each case to be
effective only upon the appointment of a successor trustee and the acceptance
of such appointment by such successor. In addition, the Trustor may at any
time remove the Owner Trustee without cause by an instrument in writing
delivered to the Owner Trustee and the Indenture Trustee, such removal to be
effective only upon the appointment by the Trustor of a successor Owner
Trustee and the acceptance of such appointment by such successor. Upon the
giving of notice of resignation or removal of the Owner Trustee, the Trustor
may appoint a successor Owner Trustee by an instrument signed by the Trustor.
If the Trustor shall not have so appointed a successor Owner Trustee within 30
days after such resignation or removal, the Owner Trustee, the Indenture
Trustee or the Trustor may apply to any court of competent jurisdiction to
appoint a successor Owner Trustee to act until such time, if any, as a
successor or successors shall have been appointed by the Trustor as above
provided. Any successor Owner Trustee so appointed by a court shall be
superseded by any successor Owner Trustee subsequently appointed by the
Trustor.
The appointment of any successor Owner Trustee shall be subject to
the conditions set forth in Section 11.01 of the Participation Agreement.
Section 3.12. Estate and Rights of Successor Owner Trustee. Any
successor Owner Trustee, however appointed, shall execute and deliver to the
predecessor Owner Trustee, with a copy to the Trustor and the Indenture
Trustee, an instrument accepting such appointment, in form and substance
acceptable to the predecessor Owner Trustee and the Trustor, and thereupon
each successor Owner Trustee, without further act, shall become vested with
all the estates, properties, rights, powers, duties and trust of the
predecessor Owner Trustee in the trust hereunder with like effect as if
originally named as an Owner Trustee herein, but nevertheless upon the written
request of such successor Owner Trustee, such predecessor Owner Trustee shall
execute and deliver an instrument transferring to such successor Owner
Trustee, upon the trust herein expressed, all estates, properties, rights,
powers, duties, property or moneys then held by such predecessor Owner Trustee
upon the trust herein expressed. Upon any such transfer by a predecessor
Owner Trustee, such predecessor Owner Trustee shall provide the successor
Owner Trustee and Trustor an accounting of the Lessor's Estate and the trust
hereunder.
Upon the appointment of any successor Owner Trustee hereunder, the
predecessor Owner Trustee will use its best efforts to cause registration of
the Aircraft included in the Lessor's Estate to be transferred upon the
records of the Aeronautics Authority or other registry where the Aircraft may
then be registered into the name of the successor Owner Trustee and shall
otherwise use its best efforts to comply, or assist the successor Owner
Trustee in complying, with the provisions of Section 11.01 of the
Participation Agreement.
Section 3.13. Merger or Consolidation of SSB. Any corporation into
which SSB in its individual capacity may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which SSB shall be a party, or any corporation to which substantially all the
business of the Owner Trustee in its individual capacity may be transferred,
shall, subject to Section 11.01 of the Participation Agreement, be the Owner
Trustee under this Agreement without further act; provided, that such
corporation shall not also be the Indenture Trustee.
Section 3.14. Co-Trustees. At any time, if the Owner Trustee or the
Trustor shall deem it necessary or prudent or desirable in order to conform to
legal requirements of any jurisdiction in which any part of the Lessor's
Estate may at the time be located, the Owner Trustee by an instrument in
writing signed by it shall appoint one or more Persons approved by the Trustor
to act as co-trustee, or co-trustees, jointly with the Owner Trustee, or
separate trustee or separate trustees (except insofar as local law makes it
necessary or prudent or desirable for any such co-trustee or separate trustee
to act alone), of all or any part of the Lessor's Estate, and to vest in such
Person or Persons, in such capacity, such title to the Lessor's Estate or any
part thereof, and such rights, powers, duties, trusts or obligations as the
Trustor may consider necessary or prudent or desirable. The Owner Trustee
shall not be liable for any act or omission of any co-trustee or separate
trustee appointed under this Section 3.14. No appointment of, or action by,
any co-trustee or separate trustee appointed under this Section 3.14 will
relieve the Owner Trustee of any of its obligations under any Operative
Agreement or otherwise affect any of the terms of the Indenture or adversely
affect the interests of the Indenture Trustee or the Holders of the
Certificates in the Trust Indenture Estate.
Any co-trustee or separate trustee may, at any time by an instrument
in writing, constitute the Owner Trustee its or his attorney-in-fact and agent
with full power and authority to do all acts and things and to exercise all
discretion on its or his behalf and in its or his name subject to the
conditions of this Agreement.
Every additional trustee hereunder shall be a Citizen of the United
States and, to the extent permitted by law, be appointed and act, and the
Owner Trustee and its successors shall act, subject to the following
provisions and conditions:
(A) all powers, duties, obligations and rights conferred upon the
Owner Trustee in respect of the custody, control and management of monies,
the Aircraft or documents authorized to be delivered hereunder or under the
Participation Agreement shall be exercised solely by the Owner Trustee;
(B) all other rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred or imposed upon and
exercised or performed by the Owner Trustee and such additional trustee
jointly, except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (including the holding
of title to the Lessor's Estate) the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
additional trustee;
(C) no power given to any such additional trustee, or which is
provided hereby, may be exercised by any such additional trustee, except
jointly with, or with the consent in writing of, the Owner Trustee;
(D) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder except as otherwise provided
hereunder; and
(E) the Trustor, at any time, by an instrument in writing may remove
any such additional trustee.
Section 3.15. Interpretation of Agreements. In the event that the
Owner Trustee is unsure as to the application of any provision of this
Agreement or any other Operative Agreement or any other agreement relating to
the transactions contemplated by the Operative Agreements or such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement or any other
Operative Agreement permits any determination by the Owner Trustee or is
silent or incomplete as to the course of action which the Owner Trustee is
required to take with respect to a particular set of facts, the Owner Trustee
shall request in writing sent in accordance with Article 14 of the
Participation Agreement instructions of the Trustor and, to the extent that
the Owner Trustee acts in good faith in accordance with any instructions
received from the Trustor, shall not be liable to any Person; provided, that
in the event that no response is made to the Owner Trustee by the Trustor
within 25 Business Days after such request, the Owner Trustee shall not be
liable to any Person for acts taken by the Owner Trustee in good faith or for
any failure to act, except to the extent provided in the last sentence of
Section 3.01 hereof.
Section 3.16. Not Acting in Individual Capacity. In carrying out
the trust hereby created, the Owner Trustee will act solely as trustee
hereunder and not in its individual capacity except as expressly provided
herein or in the other Operative Agreements to which it is a party; and all
Persons, other than the Trustor as provided in this Agreement, having any
claim against the Owner Trustee by reason of the transactions contemplated
hereby shall look only to the Lessor's Estate for payment or satisfaction
thereof, except to the extent provided in the last sentence of Section 3.01
hereof.
Section 3.17. Tax Returns. The Owner Trustee shall be responsible
for the keeping of all appropriate books and records relating to its receipt
and disbursement of all moneys under this Agreement or any Operative
Agreement. The Trustor shall be responsible for causing to be prepared and
filed all income tax returns required to be filed by the Trustor. The Owner
Trustee, upon request, will furnish the Trustor with all such information as
may be reasonably required or necessary from the Owner Trustee in connection
with the preparation of such tax returns and in connection with any other
filing or audit and related litigation obligations. The Owner Trustee shall
be responsible for causing to be prepared at the request of the Trustor and at
the expense of the Lessee all income tax returns required to be filed with
respect to the trust created hereby and shall execute and file such returns;
provided, however, that the Owner Trustee shall send a completed copy of each
such return to the Trustor not more than 60 nor less than 30 days prior to the
due date of such return; provided that the Owner Trustee shall have timely
received all necessary information to complete and deliver to the Trustor such
return. The Trustor, upon request, will furnish the Owner Trustee with all
such information as may be required from the Trustor in connection with the
preparation of such income tax returns.
ARTICLE 4
TERMINATION OF TRUST
Section 4.01. Termination. This Agreement and the trust created and
provided for hereby shall cease and be terminated in any one of the following
events, whichever shall first occur:
(a) The sale or other final disposition by the Owner Trustee of all
of its interest in all property constituting or included in the Lessor's
Estate and, if the Indenture shall then be in effect, the sale or other
disposition by the Indenture Trustee of all of its interest in all property
constituting or included in the Lessor's Estate, and the final disposition
by the Owner Trustee and, if the Indenture shall then be in effect, the
Indenture Trustee, of all moneys or other property or proceeds constituting
part of the Lessor's Estate in accordance with the terms hereof; or
(b) 21 years less one day from the death of the last survivor of the
descendants of Queen Victoria of England living on the date of this
Agreement; provided, however, that if the Trust shall be or become valid
under applicable law for a period subsequent to 21 years less one day from
the death of the last survivor of the descendants of Queen Victoria of
England living on the date of this Agreement or, without limiting the
generality of the foregoing, if legislation shall become effective
providing for the validity or permitting the effective grant of such trust
for a period, in gross, exceeding the period for which such trust is
hereinabove stated to extend and be valid, then such trust shall not
terminate as provided in the first part of this sentence but shall extend
to and continue in effect until, but only if such non-termination and
extension shall then be valid under applicable law, such time as the same
shall, under applicable law, cease to be valid.
Section 4.02. Termination at Option of the Trustor. Notwithstanding
Section 4.01 hereof, this Agreement and the trust created hereby shall
terminate and the Trust Estate shall be distributed to the Trustor, and this
Agreement shall be of no further force and effect, upon the election of the
Trustor by notice to the Owner Trustee, if such notice shall be accompanied by
the written agreement (in form and substance satisfactory to the Owner
Trustee) of the Trustor assuming all the obligations of the Owner Trustee
under or contemplated by the Operative Agreements or incurred by it as trustee
hereunder and releasing the Owner Trustee therefrom; provided, however, that
such notice may be given only after the time of the Lien of the Indenture is
discharged under Section 14.01 of the Indenture.
Section 4.03. Distribution of Lessor's Estate upon Termination.
Upon any termination of this trust pursuant to the provisions of Section 4.01
hereof, the Owner Trustee shall convey the Lessor's Estate (subject to all
obligations, if any, of the Owner Trustee then existing under the Operative
Agreements to which the Owner Trustee is a party) to such purchaser or
purchasers or the Trustor, as the case may be, and for such amount and on such
terms as shall be specified in written instructions from the Trustor delivered
to the Owner Trustee prior to the date of termination; provided, that in the
event such written instructions are not delivered to the Owner Trustee on or
before the date of termination, the Owner Trustee shall transfer title to the
Lessor's Estate to the Trustor. Upon making such transfer or sale and
accounting for all funds which have come into its hands, the Owner Trustee
shall be entitled to receipt of any sums due and owing to the Owner Trustee
for expenses incurred pursuant hereto as set forth in Section 2.05 hereof.
ARTICLE 5
[RESERVED]
ARTICLE 6
MISCELLANEOUS
Section 6.01. Indemnification. The Trustor agrees to reimburse and
save SSB, in its individual capacity, harmless against any and all loss,
damage, liability, claims, demands, disbursements and expenses, including
Taxes (excluding Taxes imposed against SSB upon or with respect to any fees
for services rendered in its capacity as Trustee hereunder) and reasonable
counsel fees which may be incurred by reason of its being the Owner Trustee or
acting hereunder or under the Operative Agreements, but solely by reason
thereof and arising out of or relating solely to this Agreement or the other
Operative Agreements or the Aircraft or the Rents and other sums payable
therefor, or by reason of any occurrence directly relating thereto while so
acting, and to secure the payment thereof, SSB, in its individual capacity,
shall have a Lien on the Lessor's Estate and the proceeds thereof, including
income, prior to any interest therein of the Trustor and its assigns (but
subject to the rights of the Lessee under the Operative Agreements and subject
and subordinate to the Lien of the Indenture), except that SSB shall not have
any such Lien (and the Trustor shall have no obligation) in respect of any
such loss, damage, liability, claims, demands, disbursements and expenses,
including Taxes and counsel fees, arising from or as a result of (A) the Owner
Trustee's willful misconduct or gross negligence (in its individual capacity
or as trustee), (B) any inaccuracy of any representation of SSB or any breach
by SSB of its warranties and covenants given in its individual capacity in
this Agreement and Sections 7.02(a) and (b) and 7.04 of the Participation
Agreement or elsewhere in the Operative Agreements, (C) the failure to use
ordinary care in receiving, handling, investing and disbursing funds, (D)
Lessor's Liens attributable to it in its individual capacity, (E) Taxes, fees,
or other charges on, based on, or measured by, any fees, commissions or
compensation received by SSB in connection with the transactions contemplated
by the Lease, the Indenture and this Agreement, (F) Taxes excluded from
indemnification pursuant to Section 8.01(b) of the Participation Agreement
(disregarding for the purposes of this Section 6.01, subsection (iii) and (vi)
(to the extent attributable to actions taken pursuant to instructions of the
Trustor) of Section 8.01(b) of the Participation Agreement), (G) Expenses
excluded from indemnification pursuant to Section 9.01(b) of the Participation
Agreement (disregarding for the purposes of this Section 6.01, subsections
(ii), (iv) and (viii) (to the extent attributable to actions taken pursuant to
instructions of the Trustor) of Section 9.01(b) of the Participation
Agreement) or (H) any liability on the part of the Owner Trustee arising out
of its negligence or willful or negligent misconduct in connection with its
obligations under Section 3.03, 3.04 or 3.14 hereof or Section 3.05(b)(ii) of
the Indenture; provided, that, before asserting any right to payment or
indemnification hereunder, SSB shall first demand (but need not exhaust or
pursue any further its remedies with respect to) its corresponding right to
payment or indemnification from the Lessee pursuant to the Participation
Agreement. It is further understood that the distribution by the Owner
Trustee of all or any part of the Lessor's Estate as provided in Section 4.02
of this Agreement shall not impair the right of SSB to indemnity, payment and
reimbursement as herein provided. In the event SSB makes any advances at any
time to pay or to provide for the payment of any such loss, damage, liability,
claim, demand or expense, then SSB, in its individual capacity, shall be
entitled, in addition to reimbursement for the principal of the sum so
advanced, to interest on the amount of such advances at the Prime Rate. The
provisions of this Section shall continue in force and effect notwithstanding
the termination of this trust or the resignation, inability or incapacity to
act or removal of the Owner Trustee. Except with respect to Transaction Costs
referred to in Section 10.01(a) of the Participation Agreement, SSB or the
Owner Trustee (in its individual capacity or as trustee, as the case may be)
agrees that it shall have no right against (except as provided in this Section
6.01) the Trustor or (subject to the provisions of the Indenture) the Trust
Indenture Estate for any fee as compensation for its services hereunder. The
payor of any indemnity under this Section 6.01 shall be subrogated to any
right of the person indemnified in respect of the matter as to which such
indemnity was paid.
Section 6.02. Supplements and Amendments. At any time and from time
to time, only upon the written request of the Trustor (a) SSB and the Trustor
shall execute a supplement hereto for the purpose of adding provisions to, or
changing or eliminating provisions of, this Agreement as specified in such
request and (b) the Owner Trustee shall, subject to the provisions of Article
XIII of the Indenture, enter into or consent to such written amendment or
modification of or supplement to any of the Operative Agreements as the
Indenture Trustee and any other necessary parties may agree to in writing and
as may be specified in such request, or execute and deliver such written
waiver of the terms of any of the Operative Agreements as may be agreed to in
writing by the Indenture Trustee and as may be specified in such request;
provided, that (i) the Owner Trustee shall not execute any such supplement,
amendment, waiver or modification without the prior written consent of the
Trustor, (ii) if in the reasonable opinion of the Owner Trustee any document
required to be executed by it pursuant to this Section adversely affects any
right or duty of, or immunity or indemnity in favor of, the Owner Trustee
under this Agreement or any other Operative Agreement, the Owner Trustee may
in its discretion decline to execute such document, (iii) any amendment or
supplement to this Agreement that would adversely affect the rights of the
Indenture Trustee or the Holders shall be subject to the prior written consent
of the Indenture Trustee and (iv) any amendment or supplement to this
Agreement that would adversely affect the rights of the Lessee shall be
subject to the prior written consent of the Lessee. It shall not be necessary
that any request pursuant to this Section specify the particular form of the
proposed document to be executed pursuant to such request, but it shall be
sufficient if such request shall indicate the substance thereof. Promptly
after the execution by SSB or the Owner Trustee of any document pursuant to
this Section, the Owner Trustee shall mail a conformed copy thereof to the
Trustor, the Indenture Trustee and the Lessee, but the failure of the Owner
Trustee to mail such conformed copies shall not impair or affect the validity
of such document.
Section 6.03. Nature of Title of Trustor. The Trustor shall not
have any legal title to any part of the Lessor's Estate. No transfer, by
operation of law or otherwise, of the right, title and interest of the Trustor
in and to the Lessor's Estate or the trust hereunder shall operate to
terminate this Agreement or Lessor's Estate.
Section 6.04. Power of Owner Trustee to Convey. Any assignment,
sale, transfer or other conveyance by the Owner Trustee of the interest of the
Owner Trustee in the Operative Agreements or in the Aircraft or any part
thereof pursuant to and in compliance with the terms of this Agreement or the
Operative Agreements shall bind the Trustor and shall be effective to transfer
or convey all right, title and interest of the Owner Trustee and the Trustor
in and to the Operative Agreements or the Aircraft or such part thereof. No
purchaser or other grantee shall be required to inquire as to the
authorization, necessity, expediency or regularity of such assignment, sale,
transfer or conveyance or as to the application of any sale or other proceeds
with respect thereto by the Owner Trustee.
Section 6.05. Notices. All notices, demands, declarations and other
communications required by this Agreement shall be in writing and shall be
deemed received (a) if given by telecopier, when transmitted and the
appropriate telephonic confirmation received if transmitted on a Business Day
and during normal business hours of the recipient, and otherwise on the next
Business Day following transmission, (b) if given by certified mail, return
receipt requested, postage prepaid five Business Days after being deposited in
the United States mail and (c) if given by FedEx service or other courier or
messenger service, when received or personally delivered, addressed:
If to the Owner Trustee: State Street Bank and Trust Company of Connecticut,
National Association
x/x Xxxxx Xxxxxx Xxxx and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx
0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trustor: BNY Leasing Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Controller
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Indenture
Trustee: First Security Bank, National Association
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or as to any of the foregoing parties at such other address as such party may
designate by notice duly given in accordance with this Section to the other
parties.
Section 6.06. Situs of Trust; Applicable Law; Severability. THIS
AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF CONNECTICUT, INCLUDING ALL MATTERS OF
VALIDITY, CONSTRUCTION AND PERFORMANCE. If any provision of this Agreement
shall be invalid or unenforceable, the remaining provisions hereof shall
continue to be fully effective; provided, that such remaining provisions do
not increase the obligations or liabilities of the Owner Trustee or the
Trustor.
Section 6.07. Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of, and shall be enforceable by,
the parties hereto and their respective successors and permitted assigns,
including any successive holder of the Beneficial Interest, but only to the
extent the Beneficial Interest has been transferred or assigned in accordance
with the limitations of Section 7.03(d) of the Participation Agreement.
Section 6.08. Headings and Table of Contents. The headings of the
Articles and Sections of this Agreement and the Table of Contents are inserted
for convenience only and shall not affect the meaning or construction of any
of the provisions hereof.
Section 6.09. Definitions. The capitalized terms used herein, unless
otherwise herein defined or the context hereof shall otherwise require, shall
have the respective meanings set forth in Schedule I attached hereto.
Section 6.10. Identification of Trust. This trust may for
convenience be referred to as the "Federal Express Corporation Trust No.
N583FE."
Section 6.11. Counterparts. This instrument may be executed in any
number of counterparts or upon separate signature pages bound together in
several counterparts, each of which when so executed shall be deemed to be an
original, and such counterparts together shall constitute and be one and the
same instrument.
Section 6.12. Trustor Interest. The Trustor has only a beneficial
interest in any specific property of this trust. No creditor of the Trustor
shall have any right to obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the property of this trust (as opposed to
the Trustor's beneficial interest in this trust).
IN WITNESS WHEREOF, SSB and the Trustor have caused this Agreement to
be duly executed all as of the date first above written.
BNY LEASING CORPORATION
By: __________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION
By: __________________________________
Name: Xxxx X. Xxxxx
Title: Vice President
SCHEDULE I
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N583FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Intercreditor Agreement
and the Liquidity Facilities) referred to below, unless otherwise defined in
an Operative Agreement or the context thereof shall otherwise require. In the
case of any conflict between the provisions of this Schedule and the
provisions of any Operative Agreement, the provisions of such Operative
Agreement shall control the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. The Federal Aviation Administration and/or the
Administrator of the Federal Aviation Administration, any successor to the
former United States Civil Aeronautics Board, or any Person, governmental
department, bureau, commission or agency located in the United States
succeeding to the functions of any of the foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment received or deemed to
have been received by a Person (the "Original Payment") shall be supplemented
by a further payment to such Person so that the sum of the two payments shall
be equal to the Original Payment, after taking into account (x) all Taxes that
would result from the receipt or accrual of such payments and (y) any current
reduction in Taxes resulting from such increased Taxes. In the case of
amounts payable to the Lessor, the Owner Participant, or any corporate
Affiliate of the Owner Participant, it shall be presumed that such Person is
at all times subject to Federal income tax at the maximum marginal rate
generally applicable to corporations from time to time and actual state, local
and foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Aircraft. The Airframe to be sold by the Lessee to the Owner Trustee
pursuant to the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with three Engines (or
any Replacement Engine or Engines) whether or not any of such initial or
Replacement Engines may from time to time be installed on such Airframe or may
be installed on any other airframe or on any other aircraft, including any
aircraft substituted pursuant to Section 11.03 of the Lease.
Airframe. The XxXxxxxxx Xxxxxxx MD-11F aircraft (excluding the
Engines or engines from time to time installed thereon) to be leased by the
Lessor to the Lessee pursuant to the Lease and the initial Lease Supplement
and having the United States FAA Registration Number and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N583FE), dated the Delivery Date, among the Lessee, the
Owner Trustee, not in its individual capacity, but solely as Owner Trustee,
the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with a copy of the conclusions to the
Lessee) on the Delivery Date pursuant to Section 4.01(n) of the Participation
Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Base Rate. For any day, a rate per annum equal to the higher of (a)
the Federal Funds Rate for such day plus 1/2 of 1% and (b) the Prime Rate for
such day. Each change in any interest rate provided for herein based upon the
Base Rate resulting from a change in the Base Rate shall take effect at the
time of such change in the Base Rate.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on January 30, 2020, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant (or the
Initial Owner Participant, as the case may be) under the Trust Agreement.
Bills of Sale. Collectively, the FAA Xxxx of Sale and the Warranty
Xxxx of Sale.
Business Day. Except as provided in the next succeeding sentence,
any day other than a Saturday or Sunday or day on which commercial banks are
authorized or required to close in New York, New York, Salt Lake City, Utah,
Memphis, Tennessee and the city in the United States in which the office or
agency is maintained by the Pass Through Trustee for the payment of the Pass
Through Certificates, and after the Lien of the Indenture has been discharged,
Hartford, Connecticut. With respect to notices and other communications to
the Lessee, Business Day shall mean any day other than a Saturday, Sunday or
day on which commercial banks are authorized or required to close in New York,
New York and Memphis, Tennessee.
Certificate Closing Date. May 28, 1997.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N583FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid on the Delivery Date,
as provided in Section 2.01 of the Participation Agreement and as set forth in
Schedule I of the Participation Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 000 Xxxxxx Xxxxxx, Xxxxxxx Square,
Hartford, Connecticut 06103, Attention: Corporation Trust Administration, or
such other office at which the Owner Trustee's corporate trust business shall
be administered which the Owner Trustee shall have specified by notice in
writing to the Lessee, the Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx
00000, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.02(a)(iv) of the
Lease.
Cut-Off Date. December 15, 1997.
Debt Portion. The amount specified as such on Schedule I to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by the Lessee to the Lessor and leased by the Lessor to the Lessee under the
Lease, which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.02(c) of the Participation Agreement.
EBO Amount. As defined in Section 4.02(a)(F) of the Lease.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Xxxxx'x or (y) a short-term certificate of deposit rating of P-1 by
Xxxxx'x, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the three General Electric CF6-80C2-D1F engines
listed by its manufacturer's serial number in the initial Lease Supplement and
leased pursuant to the Lease, whether or not from time to time installed on
the Airframe or installed on any other airframe or on any other aircraft, and
any Replacement Engine which may from time to time be substituted for an
Engine pursuant to Section 7.02(a)(vii), 10.03, 11.03, 11.04 or 12.02 of the
Lease, together with all Parts related thereto. Except as otherwise provided,
at such time as a Replacement Engine shall be so substituted and the Engine
for which the substitution is made shall be released from the Lien of the
Indenture, such replaced Engine shall cease to be an "Engine" under the Lease.
The term "Engines" means, as of any date of determination, all Engines then
leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of September 1, 1997,
executed by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N583FE), dated as of September 1, 1997, between
the Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. As defined in Section 15.01(d)(viii) of the Participation
Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use due
to destruction; (ii) the loss of such property or its use for a period in
excess of 30 days due to theft or disappearance or such longer period, not to
exceed 60 days from the end of such initial 30-day period, if and so long as
the location of such property is known to the Lessee and the Lessee is
diligently pursuing recovery of such property, or beyond the end of the Term
(as the same may be extended) (unless such theft or disappearance constitutes
an Event of Loss pursuant to clause (i), (iii) or (iv) hereof); (iii) loss of
such property or its use for a period of 30 days due to damage beyond repair
or due to rendition of such property permanently unfit for normal use by the
Lessee for any reason whatsoever; (iv) any damage to such property which
results in an insurance settlement with respect to such property on the basis
of an actual or constructive or compromised total loss; (v) condemnation,
confiscation or seizure of, or requisition of title to such property by any
governmental authority or purported governmental authority or agency or
instrumentality thereof; (vi) condemnation, confiscation or seizure of, or
requisition or taking of use of such property by a foreign government or
instrumentality or agency of any such foreign government, for a period in
excess of 180 days or beyond the end of the Term (as the same may be extended)
or, if earlier, on the date on which an insurance settlement with respect to
such property on the basis of a total loss or constructive or compromised
total loss shall occur; (vii) requisition of use of such property by the
Government for a period extending beyond the end of the Term (as the same may
be extended); and (viii) as a result of any law, rule, regulation, order or
other action by the Aeronautics Authority or other governmental body having
jurisdiction, the use of the Aircraft or Airframe in the normal course of air
transportation of cargo shall have been prohibited by virtue of a condition
affecting all XxXxxxxxx Xxxxxxx MD-11 series aircraft equipped with engines of
the same make and model as the Engines for a period of six (6) consecutive
months, unless the Lessee, prior to the expiration of such six (6) month
period, shall be diligently carrying forward all steps which are necessary or
desirable to permit the normal use of the Aircraft or Airframe or, in any
event, if such use of the Aircraft or the Airframe shall have been prohibited
for a period of twelve (12) consecutive months, unless the Lessee, prior to
the expiration of such twelve (12) month period shall have conformed at least
one XxXxxxxxx Xxxxxxx MD-11 series aircraft (but not necessarily the Aircraft
or the Airframe) to the requirements of any such law, rule, regulation, order,
or other action and shall have commenced regular commercial use and shall be
diligently carrying forward, on a non-discriminatory basis, all steps
necessary or desirable to permit the normal use of the Aircraft by the Lessee,
but in no event beyond the end of the Term (as such Term may be extended). An
Event of Loss with respect to the Aircraft shall be deemed to have occurred if
any Event of Loss occurs with respect to the Airframe. If an Event of Loss
described in any of clauses (ii), (v) or (viii) above shall occur, Lessor may
elect, within 30 days following the date upon which such Event of Loss is
deemed to have occurred, to waive such Event of Loss and the consequences
thereof.
Excepted Payments. Collectively, (i) indemnity or other payments (and
interest thereon to the extent provided in the Operative Agreements) paid or
payable by the Lessee in respect of the Owner Participant, the Owner Trustee
in its individual capacity or any of their respective successors, permitted
assigns, directors, officers, employees, servants and agents or Affiliates,
pursuant to the Participation Agreement or any indemnity hereafter granted to
the Owner Participant or the Owner Trustee in its individual capacity pursuant
to the Lease or the Participation Agreement, (ii) proceeds of public liability
insurance (or government indemnities in lieu thereof) in respect of the
Aircraft payable as a result of insurance claims paid for the benefit of, or
losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by the Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) but not required under Article
13 of the Lease, (iv) payments of Supplemental Rent by the Lessee in respect
of any amounts payable under the Tax Indemnity Agreement, (v) any amounts
payable by the Lessee to the Owner Participant or the Owner Trustee in its
individual capacity, after the release thereof from the Lien of the Indenture,
(vi) subject to Section 3.05 of the Lease, payments constituting increases in
Basic Rent attributable to payments arising pursuant to Section 5 of the Tax
Indemnity Agreement, (vii) all rights to exercise any election or option or to
make any decision or determination or to give or receive any notice, consent,
waiver or approval or to take any other action in respect of, but only to the
extent relating to, an Excepted Payment, (viii) any right to restitution from
the Lessee in respect of, but only to the extent relating to, any Excepted
Payment resulting from a determination of invalidity of such Excepted Payment
and (ix) any right to demand, collect or otherwise receive and enforce the
payment of any amount described in clauses (i) through (viii) above.
Existing Code. The Internal Revenue Code of 1986, as amended and in
effect on the Delivery Date, and any successor provision which is identical in
all material respects.
Expense; Expenses. As defined in Section 9.01(a) of the Participation
Agreement.
FAA Xxxx of Sale. The xxxx of sale for the Airframe on AC Form
8050-2, or such other form as may be approved by the Aeronautics Authority,
executed by the Lessee in favor of the Owner Trustee and to be dated the
Delivery Date.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
the second paragraph of Section 4.01(a) are met.
Fair Market Rental. An amount determined, in accordance with Section
4.03 of the Lease, on the basis of, and equal in amount to, the rental which
would be obtained in an arm's-length transaction between an informed and
willing lessee and an informed and willing lessor unaffiliated with such
lessee, neither being under any compulsion to lease the Aircraft. In such
determination, it shall be assumed that the Aircraft is in the condition
required under the Lease in the case of return of the Aircraft pursuant to
Article 12 of the Lease.
Fair Market Value. An amount determined, in accordance with Section
4.03 of the Lease, on the basis of, and equal in amount to, the value which
would be obtained in an arm's-length transaction between an informed and
willing purchaser under no compulsion to buy and an informed and willing
seller unaffiliated with such purchaser and under no compulsion to sell,
assuming that the Aircraft (or other property) is unencumbered by the Lease.
In such determination it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease; provided that in connection with any
determination pursuant to or for the purposes of Article 17 of the Lease, the
Aircraft shall be appraised on an "as is, where is" basis.
Federal Aviation Administration; FAA. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the amount set forth in Ancillary Agreement I.
Fixed Renewal Term. The term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as
Indenture Trustee, any Owner Participant Guarantor, and any successor
(including any trustee which may succeed to the Lessor's interest under the
Lease), Affiliate, assign, officer, director, employee, agent and servant of
any of the foregoing, the Lessor's Estate and the Trust Indenture Estate.
Neither the Pass Through Trustee nor any holder of a Pass Through Certificate
shall be deemed to be an Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N583FE), dated as of May 1, 1997, as amended and
restated as of September 1, 1997, between the Lessor and the Indenture
Trustee, as supplemented by the Indenture and Security Agreement Supplement.
Indenture and Security Agreement Supplement. A supplement to the
Indenture, substantially in the form of Exhibit A to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes or Expenses
imposed against the Indenture Trustee which are not required to be indemnified
against by the Lessee pursuant to the Participation Agreement by reason of
Section 8.01(b) or 9.01(b) thereof.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Initial Owner Participant. Federal Express Corporation, a Delaware
corporation.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by the Lessee to the
Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N583FE) dated as of May 1, 1997, as amended and restated as of September 1,
1997, entered into by the Lessor and the Lessee concurrently with the
execution and delivery of the Indenture, including, without limitation,
supplementation by one or more Lease Supplements entered into pursuant to the
applicable provisions of the Lease.
Lease Supplement. Any Lease Supplement, substantially in the form of
Exhibit A to the Lease, entered into between the Lessor and the Lessee for the
purpose of leasing the Aircraft pursuant to the terms of the Lease, which
Lease Supplement shall incorporate by reference the provisions of the Lease
including any amendments entered into subsequent to the Delivery Date.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, the Bills of
Sale, the Modification Agreement, the GTA, the Engine Warranty Assignment, the
Engine Consent, any warranty with respect to the Airframe and the Engines, all
amounts of Basic Rent and Supplemental Rent, including without limitation,
insurance proceeds (other than insurance proceeds payable to or for the
benefit of the Owner Trustee in its individual capacity, the Owner Participant
or the Indenture Trustee) and requisition, indemnity or other payments of any
kind for or with respect to the Aircraft (except amounts owing to the Owner
Participant, to the Indenture Trustee, to the Owner Trustee in its individual
capacity, or to any of their respective directors, officers, employees and
agents pursuant to Articles 8 and 9 of the Participation Agreement).
Notwithstanding the foregoing, "Lessor's Estate" shall not include any
Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, or the Owner
Participant, in each case not related to the transactions contemplated by the
Operative Agreements, (ii) acts or omissions of the Lessor in its individual
capacity or as Owner Trustee expressly prohibited under or in violation of the
Operative Agreements or in the case of the Lessor in its individual capacity
arising from its gross negligence or willful misconduct, and any act or
omission of the Owner Participant which is in violation of any of the terms of
the Operative Agreements, (iii) Taxes or claims imposed against the Lessor, in
its individual capacity or as Owner Trustee, Owner Participant, Lessor's
Estate or the trust created by the Trust Agreement which are not required to
be indemnified against by the Lessee pursuant to the Participation Agreement
by reason of Section 8.01(b) or 9.01(b) thereof or which are not required to
be indemnified against by the Lessee pursuant to the Tax Indemnity Agreement,
or (iv) claims against the Lessor or the Owner Participant arising from the
voluntary transfer by the Lessor or the Owner Participant of its interests in
the Aircraft other than a transfer of the Aircraft pursuant to Section 4.02(a)
or Article 7, 8, 9, 10 or 11 of the Lease and other than a transfer pursuant
to the exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant unless all Certificates then outstanding shall be held
by the Owner Participant, (ii) the Lessee or (iii) any Affiliate of any
thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Mandatory Document Terms. The terms set forth on Schedule IV to the
Original Participation Agreement.
Mandatory Economic Terms. The terms set forth on Schedule V to the
Original Participation Agreement.
Manufacturer. XxXxxxxxx Xxxxxxx Corporation, a Maryland corporation.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Modification Agreement. The Aircraft Modification Agreement dated as
of December 1, 1995 between the Lessee and the Manufacturer providing for the
refurbishing and reconfiguration of the Aircraft including any warranties
relating thereto, but only to the extent that the foregoing relates to the
Aircraft, to the extent assigned to the Owner Trustee pursuant to the Warranty
Xxxx of Sale.
Moody's. Xxxxx'x Investors Service, Inc.
N584FE Indenture. Has the meaning set forth in Section 2.01(aa) of
the Participation Agreement.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate per semi-annual period equal to the Debt Rate.
Non-U.S. Person. Any Person other than (i) a citizen or resident of
the United States, as defined in Section 7701(a)(30) of the Code, (ii) a
corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof or therein, or
(iii) any estate or trust that is subject to United States federal income
taxation regardless of the source of its income.
Obsolete Parts. Parts which are severable from the Aircraft in
accordance with clauses (ii) and (iii) of the proviso to Section 9.02(b) of
the Lease and which the Lessee in good faith determines to be obsolete or no
longer suitable or appropriate for use on the Airframe or any Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, the Bills of Sale, the Modification Agreement, the GTA, the Engine
Warranty Assignment, the Lease, the Lease Supplement, the Owner Participant
Guaranty, if any, the Owner Trustee Guaranty, if any, the Ancillary Agreement
I, the Certificates outstanding at the time of reference, the Indenture, the
Indenture and Security Agreement Supplement, the Engine Consent, each
Liquidity Facility, the Intercreditor Agreement, the Collateral Account
Control Agreement and the Tax Indemnity Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Xxxxx Xxxx & Xxxxxxxx or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Original Agreements. The documents and instruments delivered on the
Certificate Closing Date in connection with the transactions contemplated by
the Original Participation Agreement.
Original Indenture. The Trust Indenture and Security Agreement
(Federal Express Corporation Trust No. N583FE), dated as of May 1, 1997,
between the Owner Trustee and the Indenture Trustee as it was originally
executed and delivered on the Certificate Closing Date.
Original Lease. The Lease Agreement (Federal Express Corporation
Trust No. N583FE), dated as of May 1, 1997, between the Owner Trustee as
lessor, and the Lessee as it was originally executed and delivered on the
Certificate Closing Date.
Original Participation Agreement. The Participation Agreement
(Federal Express Corporation Trust No. N583FE), dated as of May 1, 1997, among
the Lessee, the Initial Owner Participant, the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee and the Subordination Agent as it was
originally executed and delivered on the Certificate Closing Date.
Original Trust Agreement. The Trust Agreement (Federal Express
Corporation Trust No. N583FE), dated as of May 1, 1997, between the Initial
Owner Participant and the Owner Trustee as it was originally executed and
delivered on the Certificate Closing Date.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The Person to whom on the Delivery Date the
Initial Owner Participant shall transfer its Beneficial Interest pursuant to
Section 3.02 of the Original Participation Agreement and any successors
thereto, and any Person to which the Owner Participant transfers, in
accordance with the Participation Agreement, its right, title and interest in
and to the Operative Agreements and the Lessor's Estate.
Owner Participant Guarantor. The provider, if any, of an Owner
Participant Guaranty.
Owner Participant Guaranty. Any guaranty delivered in compliance with
Section 7.03(d) of the Participation Agreement.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider, if any, of an Owner Trustee
Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax yield and aggregate after-tax cash flow during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the
Owner Participant in determining Basic Rent, Stipulated Loss Value and
Termination Value percentages or the EBO Amount, as the case may be, as such
assumptions may be adjusted for events which have been the basis of
adjustments to Rent pursuant to Section 3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N583FE), dated as of May 1, 1997, as amended and
restated as of September 1, 1997, among the Lessee, the Owner Trustee not in
its individual capacity except as otherwise expressly provided therein, but
solely as owner trustee, the Owner Participant, the Indenture Trustee not in
its individual capacity except as otherwise expressly provided therein, but
solely as indenture trustee, the Pass Through Trustee not in its individual
capacity except as otherwise expressly provided therein, but solely as pass
through trustee and the Subordination Agent not in its individual capacity
except as otherwise expressly provided therein, but solely as subordination
agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or, prior to
replacement thereof in accordance with the Lease, which may be removed
therefrom.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997, between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. May 28, 1997.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to the higher of 2% plus the Debt Rate and 1% plus the Prime
Rate (calculated on the basis of the actual number of days elapsed and a year
of 365 or 366 days) and (B) any principal of or interest on any Certificate or
any other amount payable under the Indenture, any Certificate or any other
Operative Agreement that is not paid when due (whether at Maturity, by
acceleration, by optional or mandatory prepayment or otherwise) to any Holder,
the Indenture Trustee or the Pass Through Trustee, a rate per annum during the
period from and including the due date to but excluding the date on which such
amount is paid in full equal to (i) in the case of any such amount payable to
the Holder of any Certificate, 2% plus the interest rate applicable to such
Certificate and (ii) in the case of any other such amount, 2% plus the Debt
Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local, foreign
or any agency, instrumentality, division or body thereof).
Pool Balance. Has the meaning specified in Article I to the Series
Supplement.
Pool Factors. Has the meaning specified in Article I to the Series
Supplement.
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prime Rate. The rate of interest publicly announced from time to
time by The Bank of New York at its principal office in New York, New York as
its "prime rate" or, if such rate is unavailable, the rate of interest
publicly announced from time to time by Citibank, N.A. at its principal office
in New York, New York as its "base funding rate" or "prime rate", as the case
may be.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. The proposed date of termination of the
Lease as specified by the Lessee in its notice given pursuant to Section 10.01
thereof.
Purchase Price. The amount specified as such in Ancillary Agreement
I.
Rating Agencies. Collectively, at any time, each nationally
recognized rating agency which shall have been requested to rate the Pass
Through Certificates and which shall then be rating the Pass Through
Certificates. The initial Rating Agencies will be Moody's and S&P.
Rating Agency Confirmation. With respect to any Operative Agreement
that is to be modified in any material respect on the Delivery Date or the
Transfer Date, if applicable, a written confirmation from each of the Rating
Agencies that the use of such Operative Agreement with such modifications
would not result in (i) a reduction of the rating for any Class of Pass
Through Certificates below the then current rating for such Class of Pass
Through Certificates or (ii) a withdrawal or suspension of the rating of any
Class of Pass Through Certificates.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee has
exercised its option to renew the Lease pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. January 30, 2020 and each January 15 and July 15
commencing on January 15, 1998, and continuing thereafter during the Term.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. As defined in Section 11.03 of the Lease.
Replacement Engine. A General Electric CF6-80C2-D1F engine (or an
engine of the same or another manufacturer) of equal or greater value,
remaining useful life and utility as the Engine being replaced, together with
all Parts relating to such engine; provided, however, that if such replacement
engine is not a General Electric CF6-80C2-D1F engine, such replacement engine
must then be commonly used in the commercial aviation industry on XxXxxxxxx
Xxxxxxx MD-11 airframes, and provided further that at all times all Engines
shall be of the same make and model.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Department or Corporate
Trust Administration, as the case may be, designated by such Person to perform
obligations under the Operative Agreements, with respect to the Owner
Participant, the president or any vice president with direct responsibility
for the transactions contemplated by the Operative Agreements, and with
respect to any other party, any corporate officer or (except in the case of
the Owner Participant) other employee of a party who, in the normal
performance of his or her operational responsibilities, with respect to the
subject matter of any covenant, agreement or obligation of such party pursuant
to any Operative Agreement, would have responsibility for and knowledge of
such matter and the requirements of any Operative Agreement with respect
thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplements. The Series Supplement 1997-1-A, the Series
Supplement 1997-1-B and the Series Supplement 1997-1-C, each dated the
Certificate Closing Date, between the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Xxxxxxxxx, Xxxxxx & Xxxxxxxx.
Special Distribution Date. Has the meaning specified in Article I to
the Series Supplement.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease or
the Participation Agreement or the Indenture, each Stipulated Loss Value for
the Aircraft shall be, under any circumstances and in any event, an amount,
together with so much of the arrears portion of Basic Rent due and owing
through the date of payment of Stipulated Loss Value as does not constitute an
Excepted Payment, at least sufficient to pay in full as of such date of
payment the aggregate unpaid principal amount of and accrued interest on the
Certificates outstanding on such date of payment. Subject to the immediately
preceding sentence, it is understood and agreed that the amounts set forth on
Schedule III of the Lease, for dates other than Rent Payment Dates on which
arrears Basic Rent is due, fully reflect appropriate Basic Rent accruals and
credits of unearned Basic Rent and, accordingly, no further accrual or credit
shall be required whenever Stipulated Loss Value is to be calculated with
reference to any such date.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease under the heading "Stipulated Loss Value Date."
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to SSB, the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, EBO Amount and amounts calculated by reference to Termination Value,
and all amounts required to be paid by Lessee under the agreements, covenants
and indemnities contained in the Lease or in the Participation Agreement or
the Tax Indemnity Agreement or any other Operative Agreement, but excluding
Basic Rent and (b) all amounts that the Owner Trustee is obligated to pay in
accordance with clause (b) of the last paragraph of Section 2.04 of the
Indenture.
Tax. As defined in Section 8.01(a) of the Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N583FE), dated as of September 1, 1997, between
the Lessee and the Owner Participant.
Term. The Basic Term of the Lease and each Renewal Term for the
Aircraft for which the Lease is renewed, or such earlier date on which the
Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after the fifth anniversary of the Delivery Date in the case of Article
10 of the Lease, and in the case of (i) Section 4.02(a)(A) of the Lease, the
Rent Payment Date falling on January 15, 2010 or January 15, 2013, (ii)
Section 4.02(a)(D) or (E) of the Lease, a Rent Payment Date that is on or
after the fifth anniversary of the Delivery Date and (iii) Section 4.02(a)(F)
of the Lease, January 15, 2015.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent and, accordingly, no
further accrual or credit shall be required whenever Termination Value is to
be calculated with reference to any such date.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N583FE), dated as of May 1, 1997, as amended and restated as of
September 1, 1997, between the Owner Participant and the Owner Trustee in its
individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
Underwriters. Xxxxxx Xxxxxxx & Co. Incorporated, First Chicago
Capital Markets, Inc., Xxxxxxx, Sachs & Co. and X.X. Xxxxxx & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the
Existing Code.
Warranty Xxxx of Sale. The full warranty xxxx of sale covering the
Aircraft (and specifically referring to each Engine) executed by the Lessee,
as seller in favor of the Owner Trustee, as buyer, and to be dated the
Delivery Date.
