1
Exhibit 4.5
AMERICA WEST AIRLINES, INC.
and
FLEET NATIONAL BANK,
as Trustee
PASS THROUGH TRUST AGREEMENT
Dated as of June __, 1997
2
Reconciliation and tie between Pass Through Trust Agreement dated as of June
__, 1997 and the Trust Indenture Act of 1939. This reconciliation does not
constitute part of the Pass Through Trust Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
------------------- ------------------
310(a)(1) 7.07
(a)(2) 7.07
312(a) 3.09; 8.01; 8.02
313(a) 7.06; 8.03
314(a) 8.04(a) - (c)
(a)(4) 8.04(d)
(c)(1) 1.02
(c)(2) 1.02
(d)(1) 7.12; 11.01
(d)(2) 7.12; 11.01
(d)(3) 2.01
(e) 1.02
315(b) 7.01
316(a)(last sentence) 1.04(d)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(d)
317(a)(1) 6.03
(b) 7.12
318(a) 12.08
3
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.02. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.03. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1.04. Acts of Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES; ACQUISITION
OF EQUIPMENT NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.01. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.02. Acquisition of Equipment Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 2.03. Acceptance by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.04. Limitation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE III
THE CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 3.01. Form, Denomination and Execution of Certificates . . . . . . . . . . . . . . . . . . . . . . 20
Section 3.02. Authentication of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.03. Temporary Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.04. Registration of Transfer and Exchange of Certificates . . . . . . . . . . . . . . . . . . . . 22
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.06. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.07. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.08. Limitation of Liability for Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 3.09. Book-Entry and Definitive Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 4.01. Certificate Account and Special Payments Account . . . . . . . . . . . . . . . . . . . . . . 26
Section 4.02. Distributions from Certificate Account and Special Payments Account . . . . . . . . . . . . . 27
Section 4.03. Statements to Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 4.04. Investment of Special Payment Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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ARTICLE V
THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 5.01. Maintenance of Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 5.02. Consolidation, Merger, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE VI
DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 6.02. Incidents of Sale of Equipment Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May Bring Suit . . . . . . . . . . . . . 33
Section 6.04. Control by Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 6.05. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 6.06. Right of Certificateholders to Receive Payments Not To Be Impaired . . . . . . . . . . . . . 35
Section 6.07. Certificateholders May Not Bring Suit Except Under Certain Conditions . . . . . . . . . . . . 35
Section 6.08. Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 6.09. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE VII
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 7.01. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 7.02. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.03. Not Responsible for Recitals or Issuance of Certificates . . . . . . . . . . . . . . . . . . 38
Section 7.04. May Hold Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.05. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.06. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 7.07. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 7.08. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . 41
Section 7.09. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 7.10. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . 44
Section 7.11. Maintenance of Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 7.12. Money for Certificate Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . 46
Section 7.13. Registration of Equipment Notes in Trustee's Name . . . . . . . . . . . . . . . . . . . . . . 46
Section 7.14. Representations and Warranties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 7.15. Withholding Taxes; Information Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 7.16. Trustee's Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 7.17. Preferential Collection of Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
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ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 8.01. The Company to Furnish Trustee with Names and Addresses
of Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 8.02. Preservation of Information; Communications to Certificateholders . . . . . . . . . . . . . . 48
Section 8.03. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 8.04. Reports by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE IX
SUPPLEMENTAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 9.01. Supplemental Agreements Without Consent of Certificateholders . . . . . . . . . . . . . . . . 50
Section 9.02. Supplemental Agreements with Consent of Certificateholders . . . . . . . . . . . . . . . . . 51
Section 9.03. Documents Affecting Immunity or Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 9.04. Execution of Supplemental Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 9.05. Effect of Supplemental Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 9.06. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 9.07. Reference in Certificates to Supplemental Agreements . . . . . . . . . . . . . . . . . . . . 53
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 10.01. Amendments and Supplements to Indenture and Other Note Documents . . . . . . . . . . . . . . 53
ARTICLE XI
TERMINATION OF TRUSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 11.01. Termination of the Trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE XII
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 12.01. Limitation on Rights of Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 12.02. Liabilities of Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 12.03. Certificates Nonassessable and Fully Paid . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 12.04. Registration of Equipment Notes in Name of Subordination Agent . . . . . . . . . . . . . . . 56
Section 12.05. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 12.06. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
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Section 12.07. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 12.08. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 12.09. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 12.10. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 12.11. Benefits of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 12.12. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 12.13. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 12.14. Communication by Certificateholders with Other Certificateholders . . . . . . . . . . . . . 58
Exhibit A - Form of Certificate
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This PASS THROUGH TRUST AGREEMENT, dated as of June __ 1997,
between America West Airlines, Inc., a Delaware corporation (the "Company"),
and Fleet National Bank, a national banking association, as Trustee, is made
with respect to the formation from time to time of separate America West
Airlines Pass Through Trusts, and the issuance from time to time of separate
series of Pass Through Certificates representing fractional undivided interests
in the respective Trusts.
W I T N E S S E T H:
WHEREAS, from time to time the Company and the Trustee may
enter into a Trust Supplement (this and certain other defined terms used herein
are defined in Section 1.01) pursuant to which the Trustee shall declare the
creation of a separate Trust for the benefit of the Holders of the series of
Certificates to be issued in respect of such Trust, and the initial Holders of
the Certificates of such series, as the grantors of such Trust, by their
respective acceptances of the Certificates of such series, shall join in the
creation of such Trust with the Trustee;
WHEREAS, all Certificates to be issued in respect of each
separate Trust will be issued as a separate series pursuant to this Agreement,
will evidence fractional undivided interests in such Trust and will have no
rights, benefits or interests in respect of any other separate Trust or the
property held therein, subject, however, to the provisions of any Intercreditor
Agreement to which one or more Trusts may be a party;
WHEREAS, from time to time, pursuant to the terms and
conditions of this Agreement with respect to each separate Trust formed
hereunder, the Trustee on behalf of such Trust shall purchase one or more
issues of Equipment Notes having the same interest rate as, and final maturity
dates not later than the final Regular Distribution Date of, the series of
Certificates issued in respect of such Trust and shall hold such Equipment
Notes in trust for the benefit of the Certificateholders of such Trust;
WHEREAS, to facilitate the sale of Equipment Notes to, and the
purchase of Equipment Notes by, the Trustee on behalf of each Trust created
from time to time pursuant to this Agreement, the Company as the "issuer", as
such term is defined in and solely for purposes of the Securities Act of 1933,
as amended (the "Securities Act"), of the Certificates to be issued in respect
of each Trust and as the "obligor", as such term is defined in and solely for
purposes of the Trust Indenture Act of 1939, as amended, has duly authorized
the execution and delivery of this Basic Agreement and each Trust Supplement
with respect to all such Certificates and is undertaking to perform certain
administrative and ministerial duties hereunder and is also undertaking to pay
the fees and expenses of the Trustee;
WHEREAS, this Basic Agreement, as supplemented from time to
time, is subject to the provisions of the Trust Indenture
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Act of 1939, as amended, and shall to the extent applicable, be governed by
such provisions;
NOW THEREFORE, in consideration of the mutual agreements
herein contained, and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Basic
Agreement, except as otherwise expressly provided herein or in a Trust
Supplement or unless the context otherwise requires:
(1) the terms used herein that are defined in this
Article have the meanings assigned to them in this Article, and
include the plural as well as the singular,
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all references in this Basic Agreement to designated
"Articles", "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Basic Agreement;
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Basic Agreement as a whole
and not to any particular Article, Section or other subdivision;
(5) the term "this Agreement" (as distinguished from
"this Basic Agreement") refers, unless the context otherwise requires,
to this Basic Agreement as supplemented by the Trust Supplement
creating a particular Trust and establishing the series of
Certificates issued or to be issued in respect thereof, with reference
to such Trust and such series of Certificates, as this Basic Agreement
as so supplemented may be further supplemented with respect to such
Trust and such series of Certificates; and
(6) all references in this Agreement to a "series" of
Certificates shall be construed to mean a series of Certificates
issued under the related Trust Supplement; and all references in this
Basic Agreement or in any Trust Supplement, Intercreditor Agreement,
Liquidity Facility, Refunding Agreement, or Note Document to a "class"
of Certificates shall be construed to refer to any series of
Certificates that have been or will be issued concurrently with, or
are intended to be considered concurrently with, one or more other
series of Certificates, each established
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under separate Trust Supplements to purchase related classes of
Equipment Notes issued by one or more Owner Trustees that are subject
to the same Intercreditor Agreement.
Act: With respect to any Certificateholder, has the meaning
specified in Section 1.04.
Affiliate: With respect to any specified Person, means any
other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such Person. For the purposes of this
definition, "control", when used with respect to any specified Person, means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Aircraft: Means one or more aircraft, including engines
therefor, owned by or leased to the Company and securing one or more Equipment
Notes.
Authorized Agent: With respect to the Certificates of any
series, means any Paying Agent or Registrar for the Certificates of such
series.
Avoidable Tax: Has the meaning specified in Section 7.08(e).
Basic Agreement: Means this Pass Through Trust Agreement, as
the same may from time to time be supplemented, amended or modified, but does
not include any Trust Supplement.
Book-Entry Certificates: With respect to the Certificates of
any series, means Certificates of such series which are issued in book-entry
form, ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 3.09.
Business Day: With respect to the Certificates of any series
and unless specified otherwise in any Trust Supplement, means any day other
than a Saturday, a Sunday or a day on which commercial banks are required or
authorized to close in New York, New York or Hartford, Connecticut.
Certificate: Means any one of the Certificates, substantially
in the form of Exhibit A hereto, and any such Certificates issued in exchange
therefor or replacement thereof pursuant to this Agreement.
Certificate Account: With respect to the Certificates of any
series, means the account or accounts created and maintained for such series
pursuant to Section 4.01(a) and the related Trust Supplement.
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Certificateholder or Holder: With respect to the Certificates
of any series, means the Person in whose name a Certificate of such series is
registered in the Register for Certificates of such series.
Certificate Owner: With respect to the Certificates of any
series, means, for purposes of Section 3.09, the Person who owns a Book-Entry
Certificate of such series.
Clearing Agency: Means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended.
Clearing Agency Participant: Means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects, directly or indirectly, book-entry transfers and
pledges of securities deposited with the Clearing Agency.
Company: Means America West Airlines, Inc., a Delaware
corporation, or its successor in interest pursuant to Section 5.02, or any
other obligor (within the meaning of the Trust Indenture Act) with respect to
any series of Certificates.
Controlling Party: Means the Person entitled to act as such
pursuant to the terms of any Intercreditor Agreement.
Corporate Trust Office: With respect to the Trustee, the
Subordination Agent or any Indenture Trustee, means the office of such trustee
in the city at which at any particular time its corporate trust business shall
be principally administered.
Cut-off Date: With respect to the Certificates of any series,
means the date designated as such in the Trust Supplement establishing such
series.
Definitive Certificates: With respect to the Certificate of
any series, has the meaning specified in Section 3.09.
Direction: Has the meaning specified in Section 1.04(c).
Distribution Date: Means any Regular Distribution Date
or Special Distribution Date as the context requires.
Equipment Note: With respect to the Certificates of any
series, means the equipment notes or other promissory notes, loan certificates
or other evidence of obligation issued under the related Indenture.
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ERISA: Means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor federal statute.
Escrow Account: With respect to the Certificates of any
series, has the meaning specified in Section 2.02(b).
Escrowed Funds: With respect to any Trust, has the meaning
specified in Section 2.02(b).
Event of Default: Means, in respect of any Trust, the
occurrence of an Indenture Default under any Indenture pursuant to which
Equipment Notes held by such Trust were issued.
Final Legal Distribution Date: With respect to the
Certificates of any series, means the date designated as such in the Trust
Supplement establishing such series.
Fractional Undivided Interest: Means the fractional undivided
interest in a Trust that is evidenced by a Certificate relating to such Trust.
Indenture: With respect to any Trust, means each of the one
or more separate trust indentures and security agreements, loan agreements and
mortgages and/or other agreements relating to indebtedness and security
interests with respect thereto described in, or on a schedule attached to, this
Agreement which relates to an issue of Equipment Notes to be held in such Trust
and an indenture, loan agreement and mortgage or other agreement having
substantially the same terms and conditions as such trust indenture and
security agreement, loan agreement and mortgage or other agreement relating to
indebtedness and security interests with respect thereto and which relates to
Substitute Aircraft; as each such agreement may be amended or supplemented in
accordance with its respective terms; and Indentures means all of such
agreements.
Indenture Default: With respect to any Indenture, means any
Indenture Event of Default (as such term is defined in such Indenture).
Indenture Trustee: With respect to any Equipment Note or the
Indenture applicable thereto, means the bank or trust company designated as
loan or indenture trustee under such Indenture; and any successor to such
Indenture Trustee as such trustee; and Indenture Trustees means all of the
Indenture Trustees under the Indentures.
Initial Regular Distribution Date: With respect to the
Certificates of any series, means the first Regular Distribution Date on which
a Scheduled Payment is to be made.
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Intercreditor Agreement: Means any agreement by and among one
or more Trusts, one or more Liquidity Providers and a Subordination Agent
providing for the distribution of payments made in respect of Equipment Notes
held by such Trusts.
Issuance Date: With respect to the Certificates of any
series, means the date of the issuance of such Certificates.
Lease: Means any lease between an Owner Trustee, as the
lessor, and the Company, as the lessee, referred to in the related Indenture,
as each such lease may be amended or supplemented in accordance with its
respective terms; and Leases means all such Leases.
Liquidity Facility: With respect to the Certificates of any
Series, means any revolving credit agreement or similar facility relating to
the Certificates of such series between a Liquidity Provider and a
Subordination Agent, as amended, replaced, supplemented or otherwise modified
from time to time in accordance with its terms and the terms of any
Intercreditor Agreement.
Liquidity Provider: With respect to the Certificates of any
Series, means a bank or other financial institution that agrees to provide a
Liquidity Facility for the benefit of the holders of Certificates of such
series.
Note Documents: With respect to any Equipment Note, means the
related Indenture, Refunding Agreement, guarantees of such Equipment Note, if
any and if the related Aircraft is leased to the Company, the related Lease and
the related Owner Trustee's Purchase Agreement.
Officer's Certificate: Means a certificate signed, (a) in the
case of the Company, by (i) the Chairman or Vice Chairman of the Board of
Directors, the President or any Executive Vice President or Senior Vice
President of the Company, signing alone or (ii) any Vice President of the
Company signing together with the Secretary, the Assistant Secretary, the
Treasurer or any Assistant Treasurer of the Company, or (b) in the case of the
Trustee or an Owner Trustee or an Indenture Trustee, a Responsible Officer of
the Trustee or such Owner Trustee or such Indenture Trustee, as the case may
be.
Opinion of Counsel: Means a written opinion of legal counsel
who (a) in the case of counsel for the Company, may be (i) a senior attorney in
rank of the officers of the Company a principal duty of which is furnishing
advice as to legal matters, (ii) Xxxxxxx & Xxxxx L.L.P., (iii) Xxxxxx &
Xxxxxxx, or (iv) such other counsel designated by the Company and reasonably
acceptable to the Trustee and (b) in the case of any Owner Trustee or any
Indenture Trustee, may be such counsel as may be designated by
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any of them whether or not such counsel is an employee of any of them, and who
shall be reasonably acceptable to the Trustee.
Other Agreements: Has the meaning specified in Section
6.01(b).
Outstanding: With respect to Certificates of any series,
means, as of the date of determination, all Certificates of such series
theretofore authenticated and delivered under this Agreement, except
(i) Certificates of such series theretofore canceled
by the Registrar or delivered to the Trustee or the Registrar for
cancellation;
(ii) All of the Certificates of such series if money in
the full amount required to make the final distribution with respect
to such series pursuant to Section 11.01 hereof has been theretofore
deposited with the Trustee in trust for the Holders of the
Certificates of such series as provided in Section 4.01 pending
distribution of such money to such Certificateholders pursuant to such
final distribution payment; and
(iii) Certificates of such series in exchange for or in
lieu of which other Certificates of such series have been
authenticated and delivered pursuant to this Agreement.
Owner Participant: With respect to any Equipment Note, means
the "Owner Participant", if any, as referred to in the Indenture pursuant to
which such Equipment Note is issued and any permitted successor or assign of
such Owner Participant; and Owner Participants at any time of determination
means all of the Owner Participants thus referred to in the Indentures.
Owner Trustee: With respect to any Equipment Note, means the
"Owner Trustee", if any, as referred to in the Indenture pursuant to which such
Equipment Note is issued, not in its individual capacity but solely as trustee;
and Owner Trustees means all of the Owner Trustees party to any of the
respective Indentures.
Owner Trustee's Purchase Agreement: With respect to the
Certificates of any series, if the related Aircraft is leased to the Company,
has the meaning specified for the term Purchase Agreement in the related Lease.
Paying Agent: With respect to the Certificates of any series,
means the paying agent maintained and appointed for the Certificates of such
series pursuant to Section 7.11.
Permitted Investments: Means obligations of the United States
of America or agencies or instrumentalities thereof for
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the payment of which the full faith and credit of the United States of America
is pledged, maturing in not more than 60 days or such lesser time as is
necessary for payment of any Special Payments on a Special Distribution Date.
Person: Means any person, including any individual
corporation, partnership, joint venture, association, joint stock company,
trust, unincorporated organization, or government or any agency or political
subdivision thereof.
Pool Balance: Means, with respect to the Certificates of any
series, as of any date, (i) the original aggregate face amount of the
Certificates of such series less (ii) the aggregate amount of all payments made
in respect of such Certificates other than payments made in respect of interest
or premium thereon or reimbursement of any costs or expenses incurred in
connection therewith. The Pool Balance of any series of Certificates as of any
Distribution Date shall be computed after giving effect to the payment of
principal, if any, on the Equipment Notes or other Trust Property held in the
related Trust and the distribution thereof to be made on such Distribution
Date.
Pool Factor: Means, with respect to any series of
Certificates as of any date, the quotient (rounded to the seventh decimal
place) computed by dividing (i) the Pool Balance of such series as at such date
by (ii) the original aggregate face amount of the Certificates of such series.
The Pool Factor as of any Distribution Date shall be computed after giving
effect to the payment of principal, if any, on the Equipment Notes or other
Trust Property and the distribution thereof to be made on such Distribution
Date.
Postponed Notes: With respect to any Trust or the related
series of Certificates, means the Equipment Notes to be held in such Trust as
to which a Postponement Notice shall have been delivered pursuant to Section
2.02(b).
Postponement Notice: With respect to any Trust or the related
series of Certificates, means an Officer's Certificate of the Company signed by
an officer of the Company (1) requesting that the Trustee temporarily postpone
purchase of the related Equipment Notes to a date later than the Issuance Date
of such series of Certificates, (2) identifying the amount of the purchase
price of each such Equipment Note and the aggregate purchase price for all such
Equipment Notes, (3) setting forth the reasons for such postponement and (4)
with respect to each such Equipment Note, either (a) setting or resetting a new
Transfer Date (which shall be on or prior to the applicable Cut-off Date) for
payment by the Trustee of such purchase price and issuance of the related
Equipment Note, or (b) indicating that such new Transfer Date (which shall be
on or prior to the applicable Cut-off Date) will be set by subsequent written
notice not less than one Business Day prior to such new Transfer Date.
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PTC Event of Default: With respect to the Certificates of any
series, has the meaning specified in the Trust Supplement establishing each
series.
Record Date: With respect to any Trust or the related series
of Certificates, means (i) for Scheduled Payments to be distributed on any
Regular Distribution Date, other than the final distribution, with respect to
such series, the 15th day (whether or not a Business Day) preceding such
Regular Distribution Date, and (ii) for Special Payments to be distributed on
any Special Distribution Date, other than the final distribution, with respect
to such series, the 15th day (whether or not a Business Day) preceding such
Special Distribution Date.
Refunding Agreement: With respect to the Certificates of any
series, means any note purchase, refunding, participation or similar agreement
providing for, among other things, the purchase of Equipment Notes by the
Trustee on behalf of the relevant Trust, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms; and Refunding Agreements means all such agreements.
Register and Registrar: With respect to the Certificates of
any series, mean the register maintained and the registrar appointed for such
series pursuant to Sections 3.04 and 7.11.
Regular Distribution Date: With respect to distributions of
Scheduled Payments in respect of any series of Certificates, means each date
designated as such in this Agreement, until payment of all the Scheduled
Payments to be made under the Equipment Notes held in such Trust has been made.
Request: Means a request by the Company setting forth
the subject matter of the request accompanied by an Officer's Certificate and
an Opinion of Counsel as provided in Section 1.02 of this Basic Agreement.
Responsible Officer: With respect to any Trustee, any
Indenture Trustee and any Owner Trustee, means any officer in the corporate
trust division or department of the Trustee, Indenture Trustee or Owner Trustee
or any other officer customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his knowledge of
and familiarity with a particular subject.
Scheduled Payment: With respect to any Equipment Note, means
any payment of principal and interest on such Equipment Note or any payment of
interest on the Certificates of any series with funds drawn under the Liquidity
Facility for such series (other than any such payment which is not in fact
received by the
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Trustee or any Subordination Agent within five days of the date on which such
payment is scheduled to be made) due from the obligor thereon which payment
represents the installment of principal at the stated maturity of such
installment of principal on such Equipment Note, the payment of regularly
scheduled interest accrued on the unpaid principal amount of such Equipment
Note, or both; provided that any payment of principal, premium, if any, or
interest resulting from the redemption or purchase of any Equipment Note shall
not constitute a Scheduled Payment.
SEC: Means the Securities and Exchange Commission, as from
time to time constituted or created under the Securities Exchange Act of 1934,
or, if at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
Special Distribution Date: With respect to the Certificates
of any series, means the date specified as such in the related Trust
Supplement.
Special Payment: Means (i) any payment (other than a
Scheduled Payment) in respect of, or any proceeds of, any Equipment Note or
Trust Indenture Estate (as defined in each Indenture) or (ii) the amounts
required to be distributed pursuant to the last paragraph of Section 2.02(b) or
(iii) the amounts required to be distributed pursuant to the penultimate
paragraph of Section 2.02(b).
Special Payments Account: With respect to the Certificates of
any series, means the account or accounts created and maintained for such
series pursuant to Section 4.01(b) and the related Trust Supplement.
Specified Investments: With respect to any Trust, means,
unless otherwise specified in the related Trust Supplement, (i) direct
obligations of the United States or any agency thereof the obligations of which
bear the full faith and credit of the United States, (ii) obligations fully
guaranteed by the United States, or (iii) certificates of deposit issued by any
commercial bank incorporated under the laws of the United States or one of the
States thereof (but not exceeding $10,000,000 in principal amount or deposits
at any given time for any one bank) having a combined capital surplus and
undivided income of at least $750,000,000; (iv) repurchase agreements (but not
exceeding $10,000,000 in principal amount or deposits at any given time for any
one bank) with any financial institution having combined capital surplus and
undivided income of at least $750,000,000 and fully collateralized by an
obligation of the type described in clauses (i) through (iii) as collateral
pursuant to which an entity referred to in clause (iii) above or another
financial institution having a net worth of at least $750,000,000 and having a
rating of "B" or better from Thomson BankWatch, Inc. is
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obligated to repurchase any such obligation not later than ninety (90) days
after the purchase of any such obligation and (v) money market funds which
invest solely in obligations described in clause (i) or (ii); provided further
that if all of the above investments are unavailable, the entire amounts to be
invested may be used to purchase Federal Funds from an entity described in
clause (iii) above; and provided further that no investment shall be eligible
as a "Specified Investment" unless the final maturity or date of return of such
investment is on or before the Special Distribution Date next following the
Cut-off Date, if any, for such Trust by more than 20 days.
Subordination Agent: Shall have the meaning specified
therefor in any Intercreditor Agreement.
Substitute Aircraft: With respect to any Trust, means any
Aircraft of a type specified in this Agreement and, at the election of the
Company, substituted prior to the applicable Cut-off Date, if any, pursuant to
the terms of this Agreement.
Transfer Date: Has the meaning assigned to that term in a
related Refunding Agreement or any of the terms "Delivery Date", "Funding Date"
or "Closing Date" in a related Refunding Agreement.
Triggering Event: Shall have the meaning specified therefor
in any Intercreditor Agreement.
Trust: With respect to the Certificates of any series, means
the trust created pursuant to the Basic Agreement and the related Trust
Supplement for the benefit of the Holders of the Certificates of such series.
Trust Indenture Act: Except as otherwise provided in Section
9.06, means the Trust Indenture Act of 1939 as in force at the date as of which
this Basic Agreement was executed.
Trust Property: With respect to any Trust means (i) the
Equipment Notes held as the property of such Trust, all monies at any time paid
thereon and all monies due and to become due thereunder, (ii) the rights of
such Trust under any Intercreditor Agreement, including all monies receivable
in respect of such rights, (iii) all monies receivable under any Liquidity
Facility for such Trust and (iv) funds from time to time deposited in the
related Escrow Account, the related Certificate Account and the related Special
Payments Account and any proceeds from the sale by the Trustee pursuant to
Article VI hereof of any such Equipment Note.
Trust Supplement: Means an agreement supplemental hereto
pursuant to which (i) a separate Trust is created for the benefit of the
Holders of the Certificates of a series, (ii) the issuance of the Certificates
of such series representing
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fractional undivided interests in such Trust is authorized and (iii) the terms
of the Certificates of such series are established.
Trustee: Means the institution executing this Basic Agreement
as Trustee, or its successor in interest, and any successor trustee appointed
as provided herein.
Trustee's Lien: Has the meaning specified in Section 7.16.
Underwriter: With respect to the Certificates of any series,
has the meaning specified as such in the Trust Supplement establishing such
series.
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Company, any Owner Trustee or any Indenture
Trustee to the Trustee to take any action under any provision of this Basic
Agreement or, in respect of the Certificates of any series, this Agreement, the
Company, such Owner Trustee or such Indenture Trustee, as the case may be,
shall furnish to the Trustee an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any, provided for in this
Basic Agreement or this Agreement relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Basic
Agreement or this Agreement relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or,opinion with respect to compliance with a
condition or covenant provided for in this Basic Agreement or, in respect of
the Certificates of any series, this Agreement (other than a certificate
provided pursuant to Section 8.04(d)) or any Trust Supplement shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions in this Basic Agreement or this Agreement relating
thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as
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to whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any Opinion of Counsel stated to be based on the opinion of
other counsel shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Basic Agreement or, in respect of the Certificates
of any series, this Agreement, they may, but need not, be consolidated and form
one instrument.
Section 1.04. Acts of Certificateholders. (a) Any
direction, consent, waiver or other action provided by this Agreement in
respect of the Certificates of any series to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or
by an agent or proxy duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required pursuant to this Agreement, to the Company or any Indenture Trustee.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Certificateholders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of such Trust Supplement and conclusive in favor of
the Trustee, the Company and the related Indenture Trustee, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the certificate of any notary
public or other officer of any jurisdiction authorized to take acknowledgments
of deeds or
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administer oaths that the Person executing such instrument acknowledged to him
the execution thereof or by an affidavit of a witness to such execution sworn
to before any such notary or such other officer and where such execution is by
an officer of a corporation or association or a member of a partnership, on
behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact
and date of the execution of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any other reasonable
manner which the Trustee deems sufficient.
(c) In determining whether the Certificateholders of the
requisite Fractional Undivided Interests of Certificates of any series
Outstanding have given any direction, consent or waiver (a "Direction"), under
this Agreement, Certificates owned by the Company, any related Owner Trustee,
any related Owner Participant or any Affiliate of any such Person shall be
disregarded and deemed not to be Outstanding for purposes of any such
determination. In determining whether the Trustee shall be protected in
relying upon any such Direction, only Certificates which a Responsible Officer
of the Trustee knows to be so owned shall be so disregarded. Notwithstanding
the foregoing, (i) if any, such Person owns 100% of the Certificates of any
series Outstanding, such Certificates shall not be so disregarded as aforesaid,
and (ii) if any amount of Certificates of such series so owned by any such
Person have been pledged in good faith, such Certificates shall not be
disregarded as aforesaid if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Certificates and
that the pledgee is not the Company, any related Owner Trustee, any related
Owner Participant or any Affiliate of any such Person.
(d) The Company may at its option by delivery of an Officer's
Certificate to the Trustee set a record date to determine the
Certificateholders in respect of the Certificates of any series, entitled to
give any consent, request, demand, authorization, direction, notice, waiver or
other Act. Notwithstanding Section 316(c) of the Trust Indenture Act, such
record date shall be the record date specified in such Officer's Certificate
which shall be a date not more than 30 days prior to the first solicitation of
Certificateholders in connection therewith. If such a record date is fixed,
such consent, request, demand, authorization, direction, notice, waiver or
other Act may be given before or after such record date, but only the
Certificateholders of record of the applicable series at the close of business
on such record date shall be deemed to be Certificateholders for the purposes
of determining whether Certificateholders of the requisite proportion of
Outstanding Certificates of such series have authorized or agreed or consented
to such consent, request, demand, authorization, direction, notice, waiver or
other Act, and for that purpose the Outstanding Certificates of such series
shall be computed as of
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such record date; provided that no such consent, request, demand, authorization,
direction, notice, waiver or other Act by the Certificateholders on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Basic Agreement not later than one year after the record
date.
(e) Any direction, consent, waiver or other action by the
Certificateholder of any Certificate shall bind the Certificateholder of every
Certificate issued upon the transfer thereof or in exchange therefor or in lieu
thereof, whether or not notation of such action is made upon such Certificate.
(f) Except as otherwise provided in Section 1.04(c),
Certificates of any series owned by or pledged to any Person shall have an
equal and proportionate benefit under the provisions of this Agreement, without
preference, priority, or distinction as among all of the Certificates of such
series.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF EQUIPMENT NOTES
Section 2.01. Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Certificates of
each series which may be authenticated and delivered under this Basic Agreement
is limited to an amount equal to the aggregate principal amount of the
Equipment Notes held in the related Trust. The Certificates may be issued from
time to time in one or more series and shall be designated generally as the
"Pass Through Certificates", with such further designations added or
incorporated in such title for the Certificates of each series as specified in
the related Trust Supplement. Each Certificate shall bear upon its face the
designation so selected for the series to which it belongs. All Certificates
of the same series shall be substantially identical except that the
Certificates of a series may differ as to denomination and as may otherwise be
provided in the Trust Supplement establishing the Certificates of such series.
Each series of Certificates issued pursuant to this Agreement will evidence
fractional undivided interests in the related Trust and, except as may be
contained in any Intercreditor Agreement, will have no rights, benefits or
interests in respect of any other Trust or the Trust Property held therein.
All Certificates of the same series shall be in all respects equally and
ratably entitled to the benefits of this Agreement without preference, priority
or distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Agreement.
(b) The following matters shall be established with
respect to the Certificates of each series issued hereunder by a
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Trust Supplement executed and delivered by and among the Company and the
Trustee:
(1) the formation of the Trust as to which the
Certificates of such series represent fractional undivided interests
and its designation (which designation shall distinguish such Trust
from each other Trust created under this Basic Agreement and a Trust
Supplement);
(2) the specific title of the Certificates of such series
(which title shall distinguish the Certificates of such series from
each other series of Certificates created under this Basic Agreement
and a Trust Supplement);
(3) any limit upon the aggregate principal amount of the
Certificates of such series which may be authenticated and delivered
(which limit shall not pertain to Certificates authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of other Certificates of the series pursuant to Sections 3.03,
3.04 and 3.05;
(4) the Cut-off Date with respect to the Certificates of
such series;
(5) the Regular Distribution Dates applicable to the
Certificates of such series;
(6) the Final Legal Distribution Date with respect to the
Certificates of such series;
(7) the Special Distribution Dates applicable to the
Certificates of such series;
(8) if other than as provided in Section 7.11(b), the
Registrar or the Paying Agent for the Certificates of such series,
including any Co-Registrar or additional Paying Agent;
(9) if other than as provided in Section 3.01, the
denominations in which the Certificates of such series shall be
issuable;
(10) if other than United States dollars, the currency or
currencies (including currency units) in which the Certificates of
such series shall be denominated;
(11) the specific form of the Certificates of such series
(including the interest rate applicable thereto (or, in the case of
any Certificates denominated in a currency other than United States
dollars and if other than as provided in Section 3.09, whether and the
circumstances under which beneficial owners of interests in such
Certificates in permanent global form may exchange such
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interests for Certificates of such series and of like tenor of any
authorized form and denomination);
(12) a description of the Equipment Notes to be acquired
and held in the related Trust and of the related Equipment and Note
Documents;
(13) provisions with respect to the terms for which the
definitions set forth in Article I hereof or the terms of Section
11.01 hereof permit or require further specification in the related
Trust Supplement;
(14) any restrictions (including legends) in respect of
ERISA;
(15) whether such series will be subject to an
Intercreditor Agreement and, if so, the specific designation of such
Intercreditor Agreement and whether such series may be purchased in
accordance with Section 6.01(b) hereof; and
(16) any other terms of the Certificates of such series
(which terms shall not be inconsistent with the provisions of the
Trust Indenture Act), including any terms which may be required or
advisable under United States laws or regulations or advisable in
connection with the marketing of Certificates of the series.
(c) At any time and from time to time after the execution
and delivery of this Basic Agreement and a Trust Supplement forming a Trust and
establishing the terms of Certificates of a series, Certificates of such series
shall be executed, authenticated and delivered by the Trustee to the Person or
Persons specified by the Company upon request of the Company and upon
satisfaction of any conditions precedent set forth in such Trust Supplement or
in any other document to which a Trustee is a party relating to the issuance of
the Certificates of such series.
Section 2.02. Acquisition of Equipment Notes.
(a) Unless otherwise specified in the related Trust
Supplement, on or prior to the Issuance Date of the Certificates of a series,
the Trustee shall execute and deliver the related Refunding Agreements in the
form delivered to the Trustee by the Company. The Trustee shall issue and sell
such Certificates, in authorized denominations and in such Fractional Undivided
Interests, so as to result in the receipt of consideration in an amount equal
to the aggregate purchase price of such Equipment Notes and, concurrently
therewith, the Trustee shall purchase, pursuant to the terms and conditions of
the Refunding Agreements, the Equipment Notes at a purchase price equal to the
amount of such consideration so received. Except as provided in Sections 3.03,
3.04 and 3.05 hereof, the Trustee shall not
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execute, authenticate or deliver Certificates of such series in excess of the
aggregate amount specified in this paragraph. The provisions of this
Subsection (a) are subject to the provisions of Subsection (b) below.
(b) If on or prior to the Issuance Date with respect to a
series of Certificates the Company shall deliver to the Trustee a Postponement
Notice relating to one or more Postponed Notes, the Trustee shall postpone the
purchase of such Postponed Notes and shall deposit into an escrow account (as
to such Trust, the "Escrow Account") to be maintained as a part of the related
Trust an amount equal to the purchase price of such Postponed Notes (the
"Escrowed Funds"). The Escrowed Funds so deposited shall be invested by the
Trustee at the written direction and risk of, and for the benefit of, the
Company in Specified Investments (i) maturing no later than any scheduled
Transfer Date relating to such series of Certificates or (ii) if no such
Transfer Date has been scheduled, maturing on the next Business Day, or (iii)
if the Company has given notice to the Trustee that any Postponed Notes will
not be issued, with respect to the portion of the Escrowed Funds relating to
such Postponed Notes, maturing on the next applicable Special Distribution
Date, if such investments are reasonably available for purchase. The Trustee
shall make withdrawals from the Escrow Account only as provided in this
Agreement. Upon request of the Company on one or more occasions and the
satisfaction of the closing conditions specified in the applicable Refunding
Agreements on or prior to the related Cut-off Date, the Trustee shall purchase
the applicable Postponed Notes with the Escrowed Funds withdrawn from the
Escrow Account. The purchase price shall equal the principal amount of such
Postponed Notes.
The Trustee shall hold all Specified Investments until the
maturity thereof and will not sell or otherwise transfer Specified Investments.
If Specified Investments held in an Escrow Account mature prior to any
applicable Transfer Date, any proceeds received on the maturity of such
Specified Investments (other than any earnings thereon) shall be reinvested by
the Trustee at the written direction and risk of, and for the benefit of, the
Company in Specified Investments maturing as provided in the preceding
paragraph.
Any earnings on Specified Investments received from time to
time by the Trustee shall be promptly distributed to the Company. The Company
shall pay to the Trustee for deposit to the relevant Escrow Account an amount
equal to any losses on such Specified Investments as incurred. On the Initial
Regular Distribution Date in respect of the Certificates of any series, the
Company will pay (in immediately available funds) to the Trustee an amount
equal to the interest that would have accrued on any Postponed Notes, if any,
purchased after the Issuance Date if such Postponed Notes had been purchased on
the Issuance Date,
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from the Issuance Date to, but not including, the date of the purchase of such
Postponed Notes by the Trustee.
If, in respect of the Certificates of any series, the Company
notifies the Trustee prior to the Cut-off Date that any Postponed Notes will
not be issued on or prior to the Cut-off Date for any reason, on the next
Special Distribution Date for such Certificates occurring more than 20 days
following the date of such notice (i) the Company shall pay to the Trustee for
deposit in the related Special Payments Account, in immediately available
funds, an amount equal to the interest that would have accrued on the Postponed
Notes designated in such notice at a rate equal to the interest rate applicable
to such Certificates from the Issuance Date to, but not including, such Special
Distribution Date and (ii) the Trustee shall transfer an amount equal to that
amount of Escrowed Funds that would have been used to purchase the Postponed
Notes designated in such notice and the amount paid by the Company pursuant to
the immediately preceding clause (i) to the related Special Payments Account
for distribution as a Special Payment in accordance with the provisions hereof.
If, on such Cut-off Date, an amount equal to less than all of
the Escrowed Funds (other than Escrowed Funds referred to in the immediately
preceding paragraph) has been used to purchase Postponed Notes, on the next
such Special Distribution Date occurring more than 20 days following such
Cut-off Date (i) the Company shall pay to the Trustee for deposit in such
Special Payments Account, in immediately available funds, an amount equal to
the interest that would have accrued on such Postponed Notes contemplated to be
purchased with such unused Escrowed Funds (other than Escrowed Funds referred
to in the immediately preceding paragraph) but not so purchased at a rate equal
to the interest rate applicable to such Certificates from the Issuance Date to,
but not including, such Special Distribution Date and (ii) the Trustee shall
transfer such unused Escrowed Funds and the amount paid by the Company pursuant
to the immediately preceding clause (i) to such Special Payments Account for
distribution as a Special Payment in accordance with the provisions hereof.
Section 2.03. Acceptance by Trustee. The Trustee, upon the
execution and delivery of a Trust Supplement creating a Trust and establishing
a series of Certificates, shall acknowledge its acceptance of all right, title,
and interest in and to the Equipment Notes to be acquired pursuant to Section
2.02 hereof and the related Refunding Agreements and shall declare that the
Trustee holds and will hold such right, title, and interest, together with all
other property constituting the Trust Property of such Trust, for the benefit
of all then present and future Certificateholders of such series, upon the
trusts herein and in such Trust Supplement set forth. By its payment for and
acceptance of each Certificate of such series issued to
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it under this Agreement, each initial Certificateholder of such series as
grantor of such Trust shall thereby join in the creation and declaration of
such Trust.
Section 2.04. Limitation of Powers. Each Trust shall be
constituted solely for the purpose of making the investment in the Equipment
Notes provided for in the related Trust Supplement, and, except as set forth
herein or in this Agreement, the Trustee shall not be authorized or empowered
to acquire any other investments or engage in any other activities and, in
particular, the Trustee shall not be authorized or empowered to do anything
that would cause such Trust to fail to qualify as a "grantor trust" for federal
income tax purposes (including as subject to this restriction, acquiring the
Aircraft (as defined in the respective related Indentures) by bidding such
Equipment Notes or otherwise, or taking any action with respect to any such
Aircraft once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01. Form, Denomination and Execution of
Certificates. The Certificates of each series shall be issued in fully
registered form without coupons and shall be substantially in the form attached
hereto as Exhibit A, with such omissions, variations and insertions as are
permitted by this Agreement, and may have such letters, numbers or other marks
of identification and such legends or endorsements printed, lithographed or
engraved thereon, as may be required to comply with the rules of any securities
exchange on which such Certificates may be listed or to conform to any usage in
respect thereof, or as may, consistently herewith, be prescribed by the Trustee
or by the officer executing such Certificates, such determination by said
officer to be evidenced by his signing the Certificates. Any portion of the
text of any Certificate may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Certificate.
Except as provided in Section 3.09, the definitive
Certificates of such series shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the
Certificates may be listed, all as determined by the officer executing such
Certificates, as evidenced by his execution of such Certificates.
Except as otherwise provided in the related Trust Supplement,
the Certificates of each series shall be issued in denominations of $1,000 and
integral multiples thereof, except that one Certificate of each series may be
issued in a different denomination.
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The Certificates of such series shall be executed on behalf of
the Trustee by manual or facsimile signature of a Responsible Officer of the
Trustee. Certificates of any series bearing the manual or facsimile signature
of an individual who was, at the time when such signature was affixed,
authorized to sign on behalf of the Trustee shall be valid and binding
obligations of the Trustee, notwithstanding that such individual has ceased to
be so authorized prior to the authentication and delivery of such Certificates
or did not hold such office at the date of such Certificates. No Certificate
of any series shall be entitled to any benefit under this Agreement, or be
valid for any purpose unless there appears on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A hereto executed
by the Trustee by manual signature, and such certificate of authentication upon
any Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates of any series shall be dated on the date of their authentication.
Section 3.02. Authentication of Certificates. The Trustee
shall duly authenticate and deliver Certificates of each series in authorized
denominations equalling in the aggregate the aggregate principal amount of the
Equipment Notes to be purchased by the Trustee pursuant to the related
Refunding Agreements, and evidencing the entire ownership of the related Trust.
Section 3.03. Temporary Certificates. Pending the
preparation of definitive Certificates of any series, the Trustee may execute,
authenticate and deliver temporary Certificates of such series which are
printed, lithographed, typewritten, or otherwise produced, in any denomination,
containing substantially the same terms and provisions as set forth in Exhibit
A hereto, except for such appropriate insertions, omissions, substitutions and
other variations relating to their temporary nature as the officer executing
such temporary Certificates may determine, as evidenced by its execution of
such temporary Certificates.
If temporary Certificates of any series are issued, the
Company will cause definitive Certificates of such series to be prepared
without unreasonable delay. After the preparation of definitive Certificates
of such series, the temporary Certificates shall be exchangeable for definitive
Certificates upon surrender of such temporary Certificates at the Corporate
Trust Office of the Trustee, or at the office or agency of the Trustee
maintained in accordance with Section 7.11, without charge to the holder. Upon
surrender for cancellation of any one or more temporary Certificates, the
Trustee shall execute, authenticate and deliver in exchange therefor definitive
Certificates of like series, in authorized denominations and of a like
aggregate Fractional Undivided Interest. Until so exchanged, such temporary
Certificates shall in all respects be
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entitled to the same benefits under this Agreement as definitive Certificates.
Section 3.04. Registration of Transfer and Exchange of
Certificates. The Trustee shall cause to be kept at the office or agency to be
maintained by it in accordance with the provisions of Section 7.11 a register
(the "Register") for each series of Certificates in which, subject to such
reasonable regulations as it may prescribe, the Trustee shall provide for the
registration of Certificates of such series and of transfers and exchanges of
such Certificates as herein provided. The Trustee shall initially be the
registrar (the "Registrar") for the purpose of registering Certificates of each
series and transfers and exchanges of such Certificates as herein provided.
If a Person other than the Trustee is appointed by the Company
as the Registrar, the Company will give the Trustee prompt written notice of
the appointment of such Registrar and of the location, and any change in the
location, of the Register, and the Trustee shall have the right to inspect the
Register at all reasonable times and to obtain copies thereof, and the Trustee
shall have the right to conclusively rely upon an officers' certificate
executed on behalf of the Registrar as to the names and addresses of the
Certificateholders and the principal amounts and numbers of such Certificates.
Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office or such other office or agency, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of like series, in authorized
denominations of a like aggregate Fractional Undivided Interest.
At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of like series, in authorized denominations
and of a like aggregate Fractional Undivided Interest, upon surrender of the
Certificates to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate and deliver the Certificates that the Certificateholder making the
exchange is entitled to receive. All Certificates issued upon any registration
of transfer or exchange of Certificates shall be valid obligations of the
Trust, evidencing the same interest therein, and entitled to the same benefits
under this Agreement, as the Certificates surrendered upon such registration of
transfer or exchange. Every Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Registrar duly executed by the Certificateholder thereof or its attorney duly
authorized in writing.
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No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Trustee shall
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of
Certificates. All Certificates surrendered for registration of transfer and
exchange shall be canceled and subsequently destroyed by the Trustee.
Section 3.05. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate is surrendered to the
Registrar, or the Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (b) there is delivered to
the Registrar and the Trustee such security, indemnity or bond, as may be
required by them to save each of them harmless, then, in the absence of notice
to the Registrar or the Trustee that such Certificate has been acquired by a
bona fide purchaser, the Trustee shall execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate or Certificates of like series, in authorized
denominations and of like Fractional Undivided Interest. In connection with
the issuance of any new Certificate under this Section 3.05, the Trustee shall
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee and the Registrar) connected
therewith. Any duplicate Certificate issued pursuant to this Section 3.05
shall constitute conclusive evidence of the appropriate Fractional Undivided
Interest in the related Trust, as if originally issued, whether or not the lost
stolen or destroyed Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. Prior to due
presentation of a Certificate for registration of transfer, the Trustee, the
Registrar, and any Paying Agent of the Trustee may treat the person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 4.02 and for all other
purposes whatsoever, and neither the Trustee, the Registrar, nor any Paying
Agent of the Trustee shall be affected by any notice to the contrary.
Section 3.07. Cancellation. All Certificates surrendered for
payment or transfer or exchange shall, if surrendered to any Person party
hereto other than the Registrar, be delivered to the Registrar for
cancellation. No Certificates shall be authenticated in lieu of or in exchange
for any Certificates canceled as provided in this Section, except as expressly
permitted by this Agreement. All canceled Certificates held by the Registrar
shall be destroyed and a certification of their destruction delivered to the
Trustee.
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Section 3.08. Limitation of Liability for Payments. All
payments or distributions made to Certificateholders of any series under the
related Trust Supplement shall be made only from the Trust Property of the
related Trust and only to the extent that the Trustee shall have sufficient
income or proceeds from such Trust Property to make such payments in accordance
with the terms of Article IV of this Agreement. Each Certificateholder, by its
acceptance of a Certificate, agrees that it will look solely to the income and
proceeds from the Trust Property of the related Trust to the extent available
for distribution to such Certificateholder as provided in this Agreement.
Section 3.09. Book-Entry and Definitive Certificates.
(a) The Certificates of any series may be issued in the
form of one or more typewritten Certificates representing the Book-Entry
Certificates of such series, to be delivered to The Depository Trust Company,
the initial Clearing Agency, by, or on behalf of, the Company. In such case,
the Certificates of such series delivered to The Depository Trust Company shall
initially be registered on the Register in the name of CEDE & Co., the nominee
of the initial Clearing Agency, and no Certificate Owner will receive a
definitive certificate representing such Certificate Owner's interest in the
Certificates of such series, except as provided above and in Subsection (c)
below. As to the Certificates of any series, unless and until definitive,
fully registered Certificates (the "Definitive Certificates") have been issued
pursuant to Subsection (c) below:
(i) the provisions of this Section 3.09 shall be
in full force and effect;
(ii) the Company, the Paying Agent, the Registrar
and the Trustee may deal with the Clearing Agency and the Clearing
Agency Participants for all purposes (including the making of
distributions on the Certificates and the distribution of statements
pursuant to Section 4.03) as the authorized representatives of the
Certificate Owners;
(iii) to the extent that the provisions of this
Section 3.09 conflict with any other provisions of this Agreement
(other than the provisions of any Trust Supplement amending this
Section 3.09 as permitted by this Basic Agreement), the provisions of
this Section 3.09 shall control;
(iv) the rights of Certificate Owners shall be
exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between such Certificate
Owners and the Clearing Agency Participants; and until Definitive
Certificates are issued pursuant to Subsection (c) below, the Clearing
Agency will make book-entry transfers among the Clearing Agency
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Participants and receive and transmit distributions of principal and
interest and premium, if any, on the Certificates to such Clearing
Agency Participants; and
(v) whenever this Agreement requires or permits
actions to be taken based upon instructions or directions of
Certificateholders of such series holding Certificates of such series
evidencing a specified percentage of the Fractional Undivided
Interests in the related Trust, the Clearing Agency shall be deemed to
represent such percentage only to the extent that it has received
instructions to such effect from Certificate Owners and/or Clearing
Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in Certificates of such
series and has delivered such instructions to the Trustee. The
Trustee shall have no obligation to determine whether the Clearing
Agency has in fact received any such instructions.
(b) Whenever notice or other communication to the
Certificateholders of such series is required under this Agreement, unless and
until Definitive Certificates shall have been issued pursuant to Subsection (c)
below, the Trustee shall give all such notices and communications specified
herein to be given to Certificateholders of such series to the Clearing Agency.
(c) If with respect to the Certificates of any series (i)
the Company advises the Trustee in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities and the
Trustee or the Company is unable to locate a qualified successor, (ii) the
Company at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default with respect to the related Trust,
Certificate Owners of Book-Entry Certificates of such series evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in the related Trust, by Act of said Certificate Owners delivered to the
Company and the Trustee, advise the Company, the Trustee and the Clearing
Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency Participants is
no longer in the best interests of the Certificate Owners of such series, then
the Trustee shall notify all Certificate Owners of such series, through the
Clearing Agency, of the occurrence of any such event and of the availability of
Definitive Certificates. Upon surrender to the Trustee of all the Certificates
of such series held by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency Participants for registration of
Definitive Certificates in the names of Certificate Owners of such series, the
Trustee shall issue and deliver the Definitive Certificates of such series in
accordance with the instructions of the Clearing Agency. Neither
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the Company, the Registrar, the Paying Agent nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on,
and shall be protected in relying on, such registration instructions. Upon the
issuance of Definitive Certificates of such series, the Trustee shall recognize
the Person in whose name the Definitive Certificates are registered in the
Register as Certificateholders hereunder. Neither the Company nor the Trustee
shall be liable if the Trustee or the Company is unable to locate a qualified
successor Clearing Agency.
(d) The provisions of this Section 3.09 may be made
inapplicable to any series or may be amended with respect to any series in the
related Trust Supplement.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments
Account.
(a) The Trustee shall establish and maintain on behalf of
the Certificateholders of each series a Certificate Account as one or more
non-interest-bearing accounts. The Trustee shall hold the Certificate Account
in trust for the benefit of the Certificateholders of such series, and shall
make or permit withdrawals therefrom only as provided in this Agreement. On
each day when a Scheduled Payment is made to the Trustee, the Trustee, upon
receipt thereof, shall immediately deposit the aggregate amount of such
Scheduled Payment into the Certificate Account.
(b) The Trustee shall establish and maintain on behalf of
the Certificateholders of each series a Special Payments Account as one or more
accounts, which shall be non-interest bearing except as provided in Section
4.04. The Trustee shall hold the Special Payments Account in trust for the
benefit of the Certificateholders of such series, and shall make or permit
withdrawals therefrom only as provided in this Agreement. On each day when one
or more Special Payments are made to the Trustee, the Trustee, upon receipt
thereof, shall immediately deposit the aggregate amount of such Special
Payments into the Special Payments Account.
(c) The Trustee shall present to the Indenture Trustee to
which an Equipment Note relates such Equipment Note on the date of its stated
final maturity or, in the case of any Equipment Note which is to be redeemed in
whole pursuant to the relevant Indenture, on the applicable redemption date
under such Indenture.
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Section 4.02. Distributions from Certificate Account and
Special Payments Account.
(a) On each Regular Distribution Date with respect to a
series of Certificates or as soon thereafter as the Trustee has confirmed
receipt of the payment of the Scheduled Payments due on the Equipment Notes
held in the related Trust on such date, the Trustee shall distribute out of the
applicable Certificate Account the entire amount deposited therein pursuant to
Section 4.01(a). There shall be so distributed to each Certificateholder of
record of such series on the Record Date with respect to such Regular
Distribution Date (other than as provided in Section 11.01 concerning the final
distribution), by check mailed to such Certificateholder at the address
appearing in the Register, such Certificateholder's pro rata share (based on
the aggregate Fractional Undivided Interest in the related Trust held by such
Certificateholder) of the aggregate amount in the applicable Certificate
Account.
(b) On each Special Distribution Date with respect to any
Special Payment with respect to a series of Certificates or as soon thereafter
as the Trustee has confirmed receipt of the Special Payments due on the
Equipment Notes held in the related Trust or realized upon the sale of such
Equipment Notes, the Trustee shall distribute out of the applicable Special
Payments Account the entire amount of such Special Payment deposited therein
pursuant to Section 4.01(b). There shall be so distributed to each
Certificateholder of record of such series on the Record Date with respect to
such Special Distribution Date (other than as provided in Section 11.01
concerning the final distribution), by check mailed to such Certificateholder
at the address appearing in the Register, such Certificateholder's pro rata
share (based on the aggregate Fractional Undivided Interest in the related
Trust held by such Certificateholder) of the aggregate amount in the applicable
Special Payments Account on account of such Special Payment.
(c) The Trustee shall at the expense of the Company,
cause notice of each Special Payment with respect to a series of Certificates
to be mailed to each Certificateholder of such series at his address as it
appears in the Register. In the event of redemption or purchase of Equipment
Notes held in the related Trust, such notice shall be mailed not less than 20
days prior to the date any such Special Payment is scheduled to be distributed.
In the case of any other Special Payments, such notice shall be mailed as soon
as practicable after the Trustee has confirmed that it has received funds for
such Special Payment. Notices mailed by the Trustee shall set forth:
(i) the scheduled Special Distribution Date and the
Record Date therefor (except as otherwise provided in Section 11.01),
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(ii) the amount of the Special Payment for each $1,000 face
amount Certificate (taking into account any payment to be made by the
Company pursuant to Section 2.02(b)) and the amount thereof
constituting principal premium, if any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a
Regular Distribution Date for the Certificates of such series, the
total amount to be received on such date for each $1,000 face amount
Certificate.
If the amount of premium, if any, payable upon the redemption
or purchase of an Equipment Note has not been calculated at the date that the
Trustee mails notice of a Special Payment, it shall be sufficient if the notice
sets forth the other amounts to be distributed and states that any premium
received will also be distributed.
If any redemption of the Equipment Notes held in any Trust is
canceled, the Trustee, as soon as possible after learning thereof, shall cause
notice thereof to be mailed to each Certificateholder of the related series at
its address as it appears on the Register.
Section 4.03. Statements to Certificateholders.
(a) On each Regular Distribution Date and Special
Distribution Date with respect to a series of Certificates, the Trustee will
include with each distribution to Certificateholders of the related series a
statement, giving effect to such distribution to be made on such Regular
Distribution Date or Special Distribution Date, as the case may be, setting
forth the following information (per $1,000 face amount Certificate as to (i)
and (ii) below):
(i) The amount of such distribution allocable to principal and
the amount allocable to premium, if any;
(ii) The amount of such distribution allocable to interest; and
(iii) The Pool Balance and the Pool Factor of the related Trust.
With respect to the Certificates registered in the name of the
Clearing Agency, on the Record Date prior to each Distribution Date, the
Trustee will request from the Clearing Agency a securities position listing
setting forth the names of all the Clearing Agency Participants reflected on
the Clearing Agency's books as holding interests in the Certificates on such
Record Date. On each Distribution Date, the applicable Trustee
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will mail to each such Clearing Agency Participant the statement described
above and will make available additional copies as requested by such Clearing
Agency Participant for forwarding to holders of interests in the Certificates.
On each Distribution Date, the applicable Trustee will mail to each Underwriter
the statement described above.
(b) Within a reasonable period of time after the end of
each calendar year but not later than the latest date permitted by law, the
Trustee shall furnish to each Person who at any time during such calendar year
was a Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i) and (a)(ii) with respect to the related
Trust for such calendar year or, in the event such Person was a
Certificateholder of record during a portion of such calendar year, for the
applicable portion of such year, and such other items as are readily available
to the Trustee and which a Certificateholder shall reasonably request as
necessary for the purpose of such Certificateholder's preparation of its
Federal income tax returns. With respect to Certificates registered in the
name of the Clearing Agency, such report and such other items shall be prepared
on the basis of information supplied to the Trustees by the Clearing Agency
Participants and shall be delivered by the Trustee to such Clearing Agency
Participants to be available for forwarding by such Clearing Agency
Participants to holders of interests in Certificates.
Section 4.04. Investment of Special Payment Moneys. Any
money received by the Trustee pursuant to Section 4.01(b) representing a
Special Payment which is not to be promptly distributed shall, to the extent
practicable, be invested in Permitted Investments by the Trustee as directed in
writing by the Company pending distribution of such Special Payment pursuant to
Section 4.02. Any investment made pursuant to this Section 4.04 shall be in
such Permitted Investments having maturities not later than the date that such
moneys are required to be used to make the payment required under Section 4.02
on the applicable Special Distribution Date and the Trustee shall hold any such
Permitted Investments until maturity. The Trustee shall have no liability with
respect to any investment made pursuant to this Section 4.04, other than by
reason of the willful misconduct or negligence of the Trustee. All income and
earnings from such investments shall be distributed on such Special
Distribution Date as part of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence. The
Company, at its own cost and expense, will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate
existence, rights and franchises, except as
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otherwise specifically permitted in Section 5.02; provided, however, that the
Company shall not be required to preserve any right or franchise if the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company.
Section 5.02. Consolidation, Merger, Etc. The Company shall
not consolidate with or merge into any other corporation or convey, transfer or
lease substantially all of its assets as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance, transfer or lease substantially all of the assets of the
Company as an entirety shall be a "citizen of the United States" (as
defined in Section 40102(a)(15) of Title 49 of the United States Code)
holding a carrier operating certificate issued by the Secretary of
Transportation pursuant to Chapter 447 of Title 49, United States
Code, for aircraft capable of carrying 10 or more individuals or 6,000
pounds or more of cargo and with respect to which there is in force an
air carrier operating certificate issued pursuant to Part 121 of the
regulations under the sections of Xxxxx 00, Xxxxxx Xxxxxx Code,
relating to aviation;
(b) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance, transfer or lease substantially all of the assets of the
Company as an entirety shall execute and deliver to the Trustee
applicable to the Certificates of each series a duly authorized,
valid, binding and enforceable agreement in form and substance
reasonably satisfactory to the Trustee containing an assumption by
such successor corporation or Person of the due and punctual
performance and observance of each covenant and condition of the Note
Documents to which the Company is a party and of this Agreement
applicable to the Certificates of each series to be performed or
observed by the Company;
(c) immediately after giving effect to such transaction,
no Event of Default applicable to the Certificates of each series or
event which is, or after notice or passage of time, or both, would be,
such an Event of Default shall have occurred and be continuing; and
(d) the Company shall have delivered to the Trustee an
Officers' Certificate of the Company and an Opinion of Counsel of the
Company (which may be the Company's General Counsel) reasonably
satisfactory to the Trustee, each stating that such consolidation,
merger, conveyance, transfer or lease and the assumption agreement
mentioned in clause (b) above comply with this Section 5.02 and that
all
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conditions precedent herein provided for relating to such transaction
have been complied with.
Upon any consolidation or merger, or any conveyance, transfer
or lease of substantially all of the assets of the Company as an entirety in
accordance with this Section 5.02, the successor corporation or Person formed
by such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Agreement
applicable to the Certificates of each series with the same effect as if such
successor corporation or Person had been named as the Company herein. No such
conveyance, transfer or lease of substantially all of the assets of the Company
as an entirety shall have the effect of releasing the Company or any successor
corporation or Person which shall theretofore have become such in the manner
prescribed in this Section 5.02 from its liability in respect of any Note
Document and of this Agreement applicable to the Certificates of such series to
which it is a party.
ARTICLE VI
DEFAULT
Section 6.01. Events of Default. (a) Exercise of Remedies:
Upon the occurrence and during the continuation of any Indenture Default under
any Indenture, the Trustee may, to the extent it is the Controlling Party at
such time, direct the exercise of remedies as provided in any Intercreditor
Agreement.
(b) Purchase Rights of Certificateholders: By acceptance
of its Certificate, each Certificateholder agrees that at any time after the
occurrence and during the continuation of a Triggering Event, each
Certificateholder of Certificates of a series will have certain rights, the
exercise of which will be specified in the applicable Trust Supplement, to
purchase the class of Certificates with immediate seniority to the Certificates
held by the purchasing Certificateholder. The purchase price with respect to
the Certificates of any series shall be equal to the Pool Balance of the
Certificates of such series, together with accrued and unpaid interest thereon
to the date of such purchase, without premium, but including any other amounts
then due and payable to the Certificateholders under this Agreement, any
Intercreditor Agreement or any other Note Document or on or in respect of the
Certificates of such series; provided, however, that no such purchase of
Certificates of such series shall be effective unless the purchaser shall
certify to the Trustee that contemporaneously with such purchase, such
purchaser is purchasing, pursuant to the terms of this Agreement and the other
Agreements, if any, relating to Certificates of multiple series that are
subject to the same Intercreditor Agreement (such other Agreements as defined
in the Trust Supplements establishing
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such series, the "Other Agreements"), the Certificates of each such series that
is senior to the Certificates held by such purchaser. Each payment of the
purchase price of the Certificates of any series shall be made to an account or
accounts designated by the Trustee and each such purchase shall be subject to
the terms of this Section. Each Certificateholder of any series agrees by its
acceptance of Certificates of such series that it will, upon payment from any
such Certificateholders of Certificates with a lower seniority of the purchase
price specified herein, forthwith sell, assign, transfer and convey to the
purchaser thereof (without recourse, representation or warranty of any kind
except for its own acts), all of the right, title, interest and obligation of
such Certificateholder in this Agreement, any Intercreditor Agreement, the
Liquidity Facility, the Note Documents and all Certificates of such series held
by such Certificateholder (excluding all right, title and interest under any of
the foregoing to the extent such right, title or interest is with respect to an
obligation not then due and payable as respects any action or inaction or state
of affairs occurring prior to such sale) and the purchaser shall assume all of
such Certificateholder's obligations under this Agreement, any Intercreditor
Agreement, the Liquidity Facility and the Note Documents. The Certificates of
such series will be deemed to be purchased on the date payment of the purchase
price is made notwithstanding the failure of the Certificateholders to deliver
any Certificates of such series and, upon such a purchase, (i) the only rights
of the Certificateholders will be to deliver the Certificates to the purchaser
and receive the purchase price for such Certificates of such series and (ii) if
the purchaser shall so request, such Certificateholder will comply with all of
the provisions of Section 3.04 hereof to enable new Certificates of such series
to be issued to the purchaser in such denominations as it shall request. All
charges and expenses in connection with the issuance of any such new
Certificates shall be borne by the purchaser thereof.
(c) No Action Contrary to the Company's Rights under a
Related Lease. Notwithstanding any of the provisions of this Agreement to the
contrary, each Trustee agrees and each Certificateholder of any series agrees
by its acceptance of such Certificate for the benefit of the Company that it
will not take any action contrary to the Company's rights under any related
Lease, including the right of the Company to possession and use the quiet
enjoyment of the Aircraft subject to such related Lease, except in accordance
with the provisions of the related Lease.
Section 6.02. Incidents of Sale of Equipment Notes. Upon any
sale of all or any part of the Equipment Notes made either under the power of
sale given under this Agreement or otherwise for the enforcement of this
Agreement, the following shall be applicable:
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(1) Certificateholders and Trustee May Purchase Equipment
Notes. Any Certificateholder, the Trustee in its individual or any
other capacity or any other Person may bid for and purchase any of the
Equipment Notes, and upon compliance with the terms of sale, may hold,
retain, possess and dispose of such Equipment Notes in their own
absolute right without further accountability.
(2) Receipt of Trustee Shall Discharge Purchaser. The
receipt of the Trustee or of the officer making such sale shall be a
sufficient discharge to any purchaser for his purchase money, and,
after paying such purchase money and receiving such receipt, such
purchaser or its personal representative or assigns shall not be
obliged to see to the application of such purchase money, or be in any
way answerable for any loss, misapplication or non-application
thereof.
(3) Application of Moneys Received upon Sale. Any moneys
collected by the Trustee upon any sale made either under the power of
sale given by this Agreement or otherwise for the enforcement of this
Agreement shall, after payment of fees and expenses of the Trustee as
provided in Section 7.06, be applied as provided in Section 4.02.
Section 6.03. Judicial Proceedings Instituted by Trustee;
Trustee May Bring Suit. If there shall be a failure to make payment when due
and payable of the principal of, premium, if any, or interest on any Equipment
Note, or if there shall be any failure to pay any other amount under any
Indenture when due and payable, then the Trustee, in its own name, and as
trustee of an express trust, as holder of such Equipment Notes, to the extent
permitted by and in accordance with the terms of any Intercreditor Agreement
and any Note Documents (subject to the rights of the applicable Owner Trustee
or Owner Participant to cure any such failure in accordance with the applicable
Indenture), shall be entitled and empowered to institute any suits, actions or
proceedings at law, in equity or otherwise, for the collection of the sums so
due and unpaid on such Equipment Notes or under such Indenture and may
prosecute any such claim or proceeding to judgment or final decree with respect
to the whole amount of any such sums so due and unpaid.
Section 6.04. Control by Certificateholders. Subject to
Section 6.03 and any Intercreditor Agreement, the Certificateholders holding
Certificates of a series evidencing Fractional Undivided Interests aggregating
not less than a majority in interest in the related Trust shall have the right
to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee with respect to such Trust or pursuant to the
terms of any Intercreditor Agreement, or exercising any trust or power
conferred on the Trustee under this Agreement or any Intercreditor Agreement,
including any right of
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the Trustee as Controlling Party under any Intercreditor Agreement or as holder
of the Equipment Notes, provided that
(1) such Direction shall not in the opinion of the
Trustee be in conflict with any rule of law or with this Agreement and
would not involve the Trustee in personal liability or expense,
(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Certificateholders of
such series not taking part in such Direction, and
(3) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such Direction.
Section 6.05. Waiver of Past Defaults. Subject to any
Intercreditor Agreement, the Certificateholders holding Certificates of a
series evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in the Trust (i) may on behalf of all of the
Certificateholders waive any past Event of Default hereunder and its
consequences or (ii) if the Trustee is the Controlling Party, may direct the
Trustee to instruct the applicable Indenture Trustee to waive, any past
Indenture Default under any Indenture and its consequences, and thereby annul
any Direction given by such Certificateholders or the Trustee to such Indenture
Trustee with respect thereto, except a default:
(1) in the deposit of any Scheduled Payment or Special
Payment under Section 4.01 or in the distribution of any payment under
Section 4.02 on the Certificates of a series, or
(2) in the payment of the principal of (premium, if any)
or interest on the Equipment Notes, or
(3) in respect of a covenant or provision hereof which
under Article IX hereof cannot be modified or amended without the
consent of each Certificateholder holding an Outstanding Certificate
of a series affected thereby.
Upon any such waiver, such default shall cease to exist with
respect to Certificates of such series and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose and any
direction given by the Trustee on behalf of the Certificateholders of such
series to the relevant Indenture Trustee shall be annulled with respect
thereto; but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon. Upon any such waiver,
the Trustee shall vote the Equipment Notes issued under
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the relevant Indenture to waive the corresponding Indenture Default.
Section 6.06. Right of Certificateholders to Receive Payments
Not To Be Impaired. Anything in this Agreement to the contrary
notwithstanding, including without limitation Section 6.07 hereof, but subject
to any Intercreditor Agreement, the right of any Certificateholder to receive
distributions of payments required pursuant to Section 4.02 hereof on the
applicable Certificates when due, or to institute suit for the enforcement of
any such payment on or after the applicable Regular Distribution Date or
Special Distribution Date, shall not be impaired or affected without the
consent of such Certificateholder.
Section 6.07. Certificateholders May Not Bring Suit Except
Under Certain Conditions. A Certificateholder of any series shall not have the
right to institute any suit, action or proceeding at law or in equity or
otherwise with respect to this Agreement, for the appointment of a receiver or
for the enforcement of any other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given
written notice to the Trustee of a continuing Event of Default;
(2) the Certificateholders holding Certificates of such
series evidencing Fractional Undivided Interests aggregating not less
than 25% of the related Trust shall have requested the Trustee in
writing to institute such action, suit or proceeding and shall have
offered to the Trustee indemnity as provided in Section 7.02(e);
(3) the Trustee shall have refused or neglected to
institute any such action, suit or proceeding for 60 days after
receipt of such notice, request and offer of indemnity; and
(4) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the
Certificateholders holding Certificates of such series evidencing
Fractional Undivided Interests aggregating not less than a majority in
interest in the related Trust.
It is understood and intended that no one or more of the
Certificateholders of any series shall have any right in any manner whatever
hereunder or under the related Trust Supplement or under the Certificates of
such series to (i) surrender, impair, waive, affect, disturb or prejudice any
property in the Trust Property of the related Trust or the lien of any related
Indenture on any property subject thereto, or the rights of the
Certificateholders of such series or the holders of the related
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Equipment Notes, (ii) obtain or seek to obtain priority over or preference to
any other such Certificateholder of such series or (iii) enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all the Certificateholders of such series subject
to the provisions of this Agreement.
Section 6.08. Remedies Cumulative. Every remedy given
hereunder to the Trustee or to any of the Certificateholders of any series
shall not be exclusive of any other remedy or remedies, and every such remedy
shall be cumulative and in addition to every other remedy given hereunder or
now or hereafter given by statute, law, equity or otherwise.
Section 6.09. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Agreement, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company.
ARTICLE VII
THE TRUSTEE
Section 7.01. Notice of Defaults. As promptly as practicable
after, and in any event within 90 days after the occurrence of any default (as
such term is defined below) hereunder known to the Trustee, the Trustee shall
transmit by mail to the Company, any related Owner Trustees, the related
Indenture Trustees and the Certificateholders holding Certificates of the
related series in accordance with Section 313(c) of the Trust Indenture Act,
notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of (premium, if any) or interest on
any Equipment Note, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the
Certificateholders of the related series. For the purpose of this Section in
respect of any Trust, the term "default" means any event that is, or after
notice or lapse of time or both would become, an Event of Default in respect of
that Trust.
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Section 7.02. Certain Rights of Trustee. Subject to the
provisions of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting in reliance upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Request;
(c) whenever in the administration of this Agreement or
any Intercreditor Agreement the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate of the Company, any related Owner
Trustee or any related Indenture Trustee;
(d) the Trustee may consult with counsel and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement or any
Intercreditor Agreement at the request or direction of any of the
Certificateholders pursuant to this Agreement or any Intercreditor
Agreement unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the cost, expenses
and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, or report, notice,
request, direction, consent, order, bond, debenture or other paper or
document;
(g) the Trustee may execute any of the trusts or powers
under this Agreement or any Intercreditor Agreement or perform any
duties under this Agreement or any Intercreditor Agreement either
directly or by or through agents or attorneys and the Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it under this Agreement
or any Intercreditor Agreement;
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(h) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Certificateholders holding Certificates of
any series evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the related Trust relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement or any Intercreditor Agreement;
(i) the Trustee shall not be required to expend or risk
its own funds in the performance of any of its duties under this
Agreement, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk is not reasonably
assured to it; and
(j) except during the continuance of an Event of Default,
the Trustee undertakes and shall be responsible to perform only such
duties as are specifically set forth herein and no implied covenants
or obligations shall be read into this Agreement or be enforceable
against Trustee.
Section 7.03. Not Responsible for Recitals or Issuance
of Certificates. The recitals contained herein and in the Certificates of each
series, except the certificates of authentication, shall not be taken as the
statements of the Trustee, and the Trustee assumes no responsibility for their
correctness. Subject to Section 7.14, the Trustee makes no representations as
to the validity or sufficiency of this Basic Agreement or any Trust Supplement,
any Note Documents, any Refunding Agreement or any Intercreditor Agreement, any
Equipment Notes or the Certificates of any series, except that the Trustee
hereby represents and warrants that this Basic Agreement has been, and each
Trust Supplement, each Certificate and each Intercreditor Agreement of, or
relating to, each series will be, executed and delivered by one of its officers
who is duly authorized to execute and deliver such document on its behalf.
Section 7.04. May Hold Certificates. The Trustee, any Paying
Agent, Registrar or any of their Affiliates or any other agent, in their
respective individual or any other capacity, may become the owner or pledgee of
Certificates and subject to Sections 310(b) and 311 of the Trust Indenture Act
may otherwise deal with the Company, any Owner Trustees or the Indenture
Trustees with the same rights it would have if it were not Trustee, Paying
Agent, Registrar or such other agent.
Section 7.05. Money Held in Trust. Money held by the Trustee
or the Paying Agent in trust hereunder or under any Trust Supplement need not
be segregated from other funds except to the extent required herein or by law
and neither the Trustee nor the
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Paying Agent shall have any liability for interest upon any such moneys except
as provided for herein.
Section 7.06. Compensation and Reimbursement. The Company
agrees:
(1) to pay, or cause to be paid, to the Trustee from time
to time reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided in any Trust
Supplement, to reimburse, or cause to be reimbursed, the Trustee upon
its request for all reasonable out-of-pocket expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Basic Agreement, any Trust Supplement or any
Intercreditor Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence, willful misconduct or bad faith or as may be incurred due
to the Trustee's breach of its representations and warranties set
forth in Section 7.14;
(3) to indemnify, or cause to be indemnified, the Trustee
for, and to hold it harmless against, any loss, liability or expense
(other than for or with respect to any tax) incurred without
negligence, willful misconduct or bad faith, on its part, arising out
of or in connection with the acceptance or administration of this
Trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder, except for any such loss,
liability or expense incurred by reason of the Trustee's breach of its
representations and warranties set forth in Section 7.14. The Trustee
shall notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel with
the consent of the Company and the Company will pay the reasonable
fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent; and
(4) to indemnify, or cause to be indemnified, the
Trustee, solely in its individual capacity, for, and to hold it
harmless against, any tax (except to the extent the Trustee is
reimbursed therefor pursuant to the next paragraph, provided that no
indemnification shall be available with respect to any tax
attributable to the Trustee's compensation for serving as such)
incurred without
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negligence, willful misconduct or bad faith, on its part, arising out
of or in connection with the acceptance or administration of this
Trust, including any costs and expenses incurred in contesting the
imposition of any such tax. The Trustee, in its individual capacity,
shall notify the Company promptly of any claim for any tax for which
it may seek indemnity. The Trustee shall permit the Company to
contest the imposition of such tax and the Trustee, in its individual
capacity, shall, at the Company's expense, cooperate in the defense.
The Trustee, in its individual capacity, may have separate counsel
with the consent of the Company and the Company will pay the
reasonable fees and expenses of such counsel. The Company need not
pay for any taxes paid, in settlement or otherwise, without its
consent.
The Trustee shall be entitled to reimbursement from, and shall
have a lien prior to the Certificates of each series upon, all property and
funds held or collected by the Trustee in its capacity as Trustee with respect
to such series or the related Trust for any tax incurred without negligence,
bad faith or willful misconduct, on its part, arising out of or in connection
with the acceptance or administration of such Trust (other than any tax
attributable to the Trustee's compensation for serving as such), including any
costs and expenses incurred in contesting the imposition of any such tax. The
Trustee shall notify the Company of any claim for any tax for which it may seek
reimbursement. The Trustee shall cooperate in the contest by the Company of
any such claim. If the Trustee reimburses itself from the Trust Property of
such Trust for any such tax it will within 30 days mail a brief report setting
forth the amount of such tax and the circumstances thereof to all
Certificateholders of such series as their names and addresses appear in the
Register.
As security for the performance of the obligations of the
Company under this Section 7.06 with respect to each Trust the Trustee shall
have a lien prior to the Certificates of the related series upon all property
and funds held or collected by the Trustee in its capacity as Trustee with
respect to such Certificates and the related Trust.
Section 7.07. Corporate Trustee Required; Eligibility. Each
Trust shall at all times have a Trustee which shall be eligible to act as a
trustee under Section 310(a) of the Trust Indenture Act and shall have a
combined capital and surplus of at least $100,000,000 (or a combined capital
and surplus in excess of $5,000,000 and the obligations of which, whether now
in existence or hereafter incurred, are fully and unconditionally guaranteed by
a corporation organized and doing business under the laws of the United States,
any State or Territory thereof or of the District of Columbia that has a
combined capital and surplus of at least $100,000,000). If such corporation
publishes reports of conditions at least annually, pursuant to law or to the
requirements of Federal, State, Territorial or District of
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Columbia supervising or examining authority, then for the purposes of this
Section 7.07, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of conditions so published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.07 to act as Trustee of any
Trust, the Trustee shall resign immediately as Trustee of such Trust in the
manner and with the effect specified in Section 7.08.
Section 7.08. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee of any Trust pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee
under Section 7.09.
(b) The Trustee may resign at any time as trustee of any
or all Trusts by giving written notice thereof to the Company, the Authorized
Agents, the related Owner Trustees and the related Indenture Trustees. If an
instrument of acceptance by a successor Trustee shall not have been delivered
to the Company, the related Owner Trustees and the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time as trustee of
any Trust by Act of the Certificateholders of the related series holding
Certificates of such series evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in such Trust delivered to the
Trustee and to the Company, the related Owner Trustees and the related
Indenture Trustees.
(d) If at any time in respect of any Trust:
(1) the Trustee shall fail to comply with Section 310 of
the Trust Indenture Act after written request therefor by the Company
or by any Certificateholder of the related series who has been a bona
fide certificateholder for at least six months; or
(2) the Trustee shall cease to be eligible under Section
7.07 and shall fail to resign after written request therefor by the
Company or by any such Certificateholder; or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any
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public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any case, (i) the Company may remove the Trustee or (ii) any
Certificateholder of the related series who has been a bona fide
Certificateholder for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee of such
Trust.
(e) If a Responsible Officer of the Trustee shall obtain
actual knowledge of an Avoidable Tax (as hereinafter defined) in respect of any
Trust which has been or is likely to be asserted, the Trustee shall promptly
notify the Company and shall, within 30 days of such notification, resign as
Trustee of such Trust hereunder unless within such 30-day period the Trustee
shall have received notice that the Company has agreed to pay such tax. The
Company shall promptly appoint a successor Trustee of such Trust in a
jurisdiction where there are no Avoidable Taxes. As used herein, an "Avoidable
Tax" in respect of such Trust means a state or local tax (i) upon (w) such
Trust, (x) such Trust Property, (y) Certificateholders of such Trust or (z) the
Trustee for which the Trustee is entitled to seek reimbursement from the Trust
Property of such Trust, and (ii) which would be avoided if the Trustee were
located in another state, or jurisdiction within a state, within the United
States. A tax shall not be an Avoidable Tax in respect of any Trust if the
Company or any Owner Trustee shall agree to pay, and shall pay, such tax.
(f) If the Trustee shall resign, be removed or become
incapable of acting as trustee of any Trust, or if a vacancy shall occur in the
office of the Trustee of any Trust for any cause, the Company shall promptly
appoint a successor Trustee of such Trust. If, within one year after such
resignation, removal or incapability, or other occurrence of such vacancy, a
successor Trustee of such Trust shall be appointed by Act of the
Certificateholders of the related series holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in such Trust delivered to the Company, the related Owner Trustees,
the related Indenture Trustee and the retiring Trustee, the successor Trustee
so appointed shall, with the approval of the Company, which approval shall not
be unreasonably withheld, forthwith upon its acceptance of such appointment,
become the successor Trustee of such Trust and supersede the successor Trustee
of such Trust appointed as provided above. If no successor Trustee shall have
been so appointed as provided above and accepted appointment in the manner
hereinafter provided, the resigning Trustee or any Certificateholder who has
been a bona fide Certificateholder of the related series for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of
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competent jurisdiction for the appointment of a successor Trustee of such
Trust.
(g) The successor Trustee of a Trust shall give notice of
the resignation and removal of the Trustee and appointment of the successor
Trustee by mailing written notice of such event by first-class mail, postage
prepaid, to the Certificateholders of the related series as their names and
addresses appear in the Register. Each notice shall include the name of such
successor Trustee and the address of its Corporate Trust Office.
Section 7.09. Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee with respect to any or all Trusts an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee with respect to such Trusts shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on request of the Company or the successor Trustee, such retiring
Trustee shall execute and deliver an instrument transferring to such successor
Trustee all such rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee in respect of such Trusts hereunder,
subject nevertheless to its lien, if any, provided for in Section 7.06. Upon
request of any such successor Trustee, the Company, the retiring Trustee and
such successor Trustee shall execute and deliver any and all instruments
containing such provisions as shall be necessary or desirable to transfer and
confirm to, and for more fully and certainly vesting in, such successor Trustee
all such rights, powers and trusts.
If a successor Trustee is appointed with respect to one or
more (but not all) Trusts, the Company, the predecessor Trustee and each
successor Trustee with respect to any Trust shall execute and deliver a
supplemental agreement hereto which shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the predecessor Trustee with respect to the Trusts as to which
the predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Basic Agreement and the applicable Trust Supplements as shall be necessary to
provide for or facilitate the administration of the Trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental agreement shall constitute such Trustees co-Trustees of the same
Trust and that each such Trustee shall be Trustee of separate Trusts.
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No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article VII.
Section 7.10. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee (including this account), shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. The parties hereto
acknowledge that the Fleet National Bank intends to sell its corporate trust
business to State Street Bank and Trust Company or an affiliate thereof during
1997 and that upon the sale of this account to such purchaser, such purchaser
shall be the successor of the Trustee hereunder provided it shall be otherwise
qualified and eligible under this Article. In case any Certificates shall have
been executed or authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such execution or authentication and deliver
the Certificates so executed or authenticated with the same effect as if such
successor Trustee had itself executed or authenticated such Certificates.
Section 7.11. Maintenance of Agencies.
(a) With respect to each series of Certificates, there
shall at all times be maintained in the Borough of Manhattan, The City of New
York, an office or agency where Certificates of such series may be presented or
surrendered for registration of transfer or for exchange, and for payment
thereof and where notices and demands to or upon the Trustee in respect of such
Certificates or of the related Trust Supplement may be served. Such office or
agency shall be initially Fleet National Bank, c/o Shawmut Trust Company, 00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Written notice of the location of each
such other office or agency and of any change of location thereof shall be
given by the Trustee to the Company, any Owner Trustees, the Indenture Trustees
and the Certificateholders of such series. In the event that no such office or
agency shall be maintained or no such notice of location or of change of
location shall be given, presentations and demands may be made and notices may
be served at the Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying
Agent hereunder with respect to the Certificates of each series. Each such
Authorized Agent shall be a bank or trust company, shall be a corporation
organized and doing business
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under the laws of the United States or any state, with a combined capital and
surplus of at least $75,000,000, or a corporation having a combined capital and
surplus in excess of $5,000,000 the obligations of which are guaranteed by a
corporation organized and doing business under the laws of the United States or
any state, with a combined capital and surplus of at least $75,000,000, and
shall be authorized under such laws to exercise corporate trust powers, subject
to supervision by Federal or state authorities. The Trustee shall initially be
the Paying Agent and, as provided in Section 3.04, Registrar hereunder with
respect to the Certificates of each series. Each Registrar shall furnish to
the Trustee, at stated intervals of not more than six months, and at such other
times as the Trustee may request in writing, a copy of the Register maintained
by such Registrar.
(c) Any corporation into which any Authorized Agent may
be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any Authorized
Agent shall be a party, or any corporation succeeding to the corporate trust
business of any Authorized Agent, shall be the successor of such Authorized
Agent hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or such Authorized Agent or such successor
corporation.
(d) Any Authorized Agent may at any time resign by giving
written notice of resignation to the Trustee, the Company, any related Owner
Trustees and the related Indenture Trustees. The Company may, and at the
request of the Trustee shall, at any time terminate the agency of any
Authorized Agent by giving written notice of termination to such Authorized
Agent and to the Trustee. Upon the resignation or termination of an Authorized
Agent or in case at any time any such Authorized Agent shall cease to be
eligible under this Section (when in either case, no other Authorized Agent
performing the functions of such Authorized Agent shall have been appointed),
the Company shall promptly appoint one or more qualified successor Authorized
Agents, reasonably satisfactory to the Trustee, to perform the functions of the
Authorized Agent which has resigned or whose agency has been terminated or who
shall have ceased to be eligible under this Section. The Company shall give
written notice of any such appointment made by it to the Trustee, any related
Owner Trustees and the related Indenture Trustees; and in each case the Trustee
shall mail notice of such appointment to all Certificateholders of the related
series as their names and addresses appear on the Register for such series.
(e) The Company agrees to pay, or cause to be paid, from
time to time to each Authorized Agent reasonable compensation for its services
and to reimburse it for its reasonable expenses.
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Section 7.12. Money for Certificate Payments to Be Held in
Trust. All moneys deposited with any Paying Agent for the purpose of any
payment on Certificates shall be deposited and held in trust for the benefit of
the Certificateholders entitled to such payment, subject to the provisions of
this Section. Moneys so deposited and held in trust shall constitute a
separate trust fund for the benefit of the Certificateholders with respect to
which such money was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.13. Registration of Equipment Notes in Trustee's
Name. Subject to Section 12.04, the Trustee agrees that all Equipment Notes,
and Permitted Investments, if any, shall be issued in the name of the Trustee
as trustee for the applicable Trust or its nominee and held by the Trustee, or,
if not so held, the Trustee or its nominee shall be reflected as the owner of
such Equipment Notes or Permitted Investments as the case may be, in the
register of the issuer of such Equipment Notes or Permitted Investments.
Section 7.14. Representations and Warranties of Trustee. The
Trustee hereby represents and warrants that:
(a) the Trustee is a national banking association
organized and validly existing and in good standing under the laws of
the United States of America;
(b) the Trustee has full power, authority and legal right
to execute, deliver, and perform this Agreement, any Intercreditor
Agreement and the Refunding Agreements and has taken all necessary
action to authorize the execution, delivery, and performance by it of
this Agreement, any Intercreditor Agreement and the Refunding
Agreements;
(c) the execution, delivery and performance by the
Trustee of this Agreement, any Intercreditor Agreement and the
Refunding Agreements (i) will not violate any provision of any United
States federal law or the law of the State of Connecticut, in each
case, governing the banking and trust powers of the Trustee or any
order, writ, judgment, or decree of any court, arbitrator, or
governmental authority applicable to the Trustee or any of its assets,
(ii) will not violate any provision of the articles of association or
by-laws of the Trustee, and (iii) will not violate any provision of,
or constitute, with or without notice or lapse
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of time, a default under, or result in the creation or imposition of
any lien on any properties included in the Trust Property pursuant to
the provisions of any mortgage, indenture, contract, agreement or
other undertaking to which it is a party, which violation, default or
lien could reasonably be expected to have an adverse effect on the
Trustee's performance or ability to perform its duties hereunder or
thereunder or on the transactions contemplated herein or therein;
(d) the execution, delivery and performance by the
Trustee of this Agreement, any Intercreditor Agreement and the
Refunding Agreements will not require the authorization, consent or
approval of, the giving of notice to, the filing or registration with,
or the taking of any other action in respect of, any governmental
authority or agency of the United States or the State of Connecticut
regulating the banking and corporate trust activities of the Trustee;
and
(e) this Agreement, any Intercreditor Agreement and the
Refunding Agreements have been duly executed and delivered by the
Trustee and constitute the legal, valid, and binding agreements of the
Trustee, enforceable against it in accordance with their respective
terms, provided that enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and (ii) general
principles of equity.
Section 7.15. Withholding Taxes; Information Reporting. As
to the Certificates of any series, the Trustee, as trustee of the related
grantor trust created by this Agreement, shall exclude and withhold from each
distribution of principal, premium, if any, and interest and other amounts due
under this Agreement or under the Certificates of such series any and all
withholding taxes applicable thereto as required by law. The Trustee agrees to
act as such withholding agent and, in connection therewith, whenever any taxes
or similar charges are required to be withheld with respect to any amounts paid
by or on behalf of the Trustee in respect of the Certificates of such series,
to withhold such amounts and timely pay the same to the authority in the name
of and on behalf of the Certificateholders of such series, that it will file
any necessary withholding tax returns or statements when due, and that, as
promptly as possible after the payment thereof, it will deliver to each such
Certificateholder necessary documentation showing the payment thereof together
with such additional documentary evidence as such Certificateholders of such
series may reasonably request from time to time. The Trustee agrees to file
any other information reports as it may be required to file under United States
law.
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Section 7.16. Trustee's Liens. The Trustee in its individual
capacity agrees that it will in respect of each Trust created by this Agreement
at its own cost and expense promptly take any action as may be necessary to
duly discharge and satisfy in full any mortgage, pledge, lien, charge,
encumbrance, security interest or claim ("Trustee's Liens") on or with respect
to the Trust Property of such Trust which is attributable to the Trustee either
(i) in its individual capacity and which is unrelated to the transactions
contemplated by this Agreement, the related Refunding Agreements or the related
Note Documents, or (ii) as Trustee hereunder or in its individual capacity and
which arises out of acts or omissions by the Trustee which are in breach of
this Agreement.
Section 7.17. Preferential Collection of Claims. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship listed in Section 311(b) of the Trust Indenture Act. If
the Trustee shall resign or be removed as Trustee, it shall be subject to
Section 311(a) of the Trust Indenture Act to the extent provided therein.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and
Addresses of Certificateholders. The Company will furnish to the Trustee
within 15 days after each Record Date with respect to a Scheduled Payment, and
at such other times as the Trustee may request in writing, within 30 days after
receipt by the Company of any such request, a list, in such form as the Trustee
may reasonably require, of all information in the possession or control of the
Company as to the names and addresses of the Certificateholders of such series,
in each case as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that so long as the Trustee is the sole Registrar
for such series, no such list need be furnished; and provided, further,
however, that no such list need be furnished for so long as a copy of the
Register is being furnished to the Trustee pursuant to Section 7.11.
Section 8.02. Preservation of Information; Communications to
Certificateholders. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders of each
series contained in the most recent list furnished to the Trustee as provided
in Section 7.11 or Section 8.01, as the case may be, and the names and
addresses of Certificateholders of each series received by the Trustee in its
capacity as Registrar, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 7.11 or Section 8.01, as the case may
be, upon receipt of a new list so furnished.
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Section 8.03. Reports by Trustee. Within 60 days after May
15 of each year commencing with the first full year following the issuance of
any series of Certificates, the Trustee shall transmit to the
Certificateholders of each series, as provided in Section 313(c) of the Trust
Indenture Act, a brief report dated as of such May 15, if required by Section
313(a) of the Trust Indenture Act.
Section 8.04. Reports by the Company. The Company shall:
(a) file with the Trustee, within 30 days after the
Company is required to file the same with the SEC, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may from
time to time by rules and regulations prescribe) which the Company is
required to file with the SEC pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934, as amended; or, if the Company
is not required to file information, documents or reports pursuant to
either of such sections, then to file with the Trustee and the SEC, in
accordance with rules and regulations prescribed by the SEC, such of
the supplementary and periodic information, documents and reports
which may be required pursuant to section 13 of the Securities
Exchange Act of 1934, as amended, in respect of a security listed and
registered on a national securities exchange as may be prescribed in
such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with the
rules and regulations prescribed by the SEC, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants of the Company provided for
in this Agreement, as may be required by such rules and regulations,
including, in the case of annual reports, if required by such rules
and regulations, certificates or opinions of independent public
accountants, conforming to the requirements of Section 1.02;
(c) transmit to all Certificateholders, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act such
summaries of any information, documents and reports required to be
filed by the Company pursuant to Subsections (a) and (b) of this
Section 8.04 as may be required by rules and regulations prescribed by
the SEC;
(d) furnish to the Trustee, not less often than annually, a
brief certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and
covenants under this Agreement (it being understood that for purposes
of this paragraph (d), such compliance shall be determined without
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regard to any period of grace or requirement of notice provided under
this Agreement); and
(e) make available to any Certificateholder upon request, the
annual audited and quarterly unaudited financial statements of the
Company which are provided to the Trustee.
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders. Without the consent of the Certificateholders, the Company
may, and the Trustee (subject to Section 9.03) shall, at any time and from time
to time, enter into one or more agreements supplemental hereto or, if
applicable, to any Intercreditor Agreement, any Refunding Agreement or any
Liquidity Facility in form satisfactory to the Trustee, for any of the
following purposes:
(1) to provide for the formation of a Trust, the issuance of
a series of certificates and the other matters contemplated by Section
2.01(b); or
(2) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein contained; or
(3) to add to the covenants of the Company for the
benefit of the Certificateholders of any series, or to surrender any
right or power in this Agreement conferred upon the Company; or
(4) to correct or supplement any provision in this
Agreement, any Intercreditor Agreement, any Refunding Agreement, any
Liquidity Facility or any Indenture which may be defective or
inconsistent with any other provision herein or in any Trust
Supplement or to cure any ambiguity, correct any mistake or to modify
any other provisions with respect to matters or questions arising
under this Agreement, any Intercreditor Agreement, any Refunding
Agreement, any Liquidity Facility or any Indenture, provided that any
such action shall not adversely affect the interests of the
Certificateholders of any series; or
(5) to modify, eliminate or add to the provisions of this
Agreement to such extent as shall be necessary to continue the
qualification of this Agreement (including any supplemental agreement)
under the Trust Indenture Act, or under any similar Federal statute
hereafter enacted, and to add to this Agreement such other provisions
as may be expressly permitted by the Trust Indenture Act, excluding,
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however, the provisions referred to in Section 316(a)(2) of the Trust
Indenture Act as in effect at the date as of which this instrument was
executed or any corresponding provision in any similar Federal statute
hereafter enacted; or
(6) to evidence and provide for the acceptance of
appointment under this Agreement by a successor Trustee with respect
to one or more Trusts and to add to or change any of the provisions of
this Agreement as shall be necessary to provide for or facilitate the
administration of the Trusts hereunder and thereunder by more than one
Trustee, pursuant to the requirements of Section 7.09; or
(7) to make any other amendments or modifications hereto,
provided such amendments or modifications shall only apply to
Certificates of one or more series to be thereafter issued;
provided, however, that no such supplemental agreement shall adversely affect
the status of any Trust as a grantor trust under Subpart E, Part I of
Subchapter J of Chapter 1 of Subtitle A of the Internal Revenue Code of 1986,
as amended, for U.S. federal income tax purposes. The Trustee shall be
entitled to rely upon an Opinion of Counsel to such effect.
Section 9.02. Supplemental Agreements with Consent of
Certificateholders. With respect to each separate Trust and the series of
Certificates relating thereto, with the consent of the Certificateholders
holding Certificates of any series evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in such Trust, by Act of said
Certificateholders delivered to the Company and the Trustee, the Company may
(with the consent of the Owner Trustee, if any, relating to such certificates,
which consent shall not be unreasonably withheld), and the Trustee (subject to
Section 9.03) shall enter into an agreement or agreements supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement, any Intercreditor
Agreement, any Liquidity Facility or any Refunding Agreement to the extent
applicable to such Certificateholders or of modifying in any manner the rights
and obligations of such Certificateholders under this Agreement; provided,
however, that no such supplemental agreement shall, without the consent of the
Certificateholder of each Outstanding Certificate affected thereby:
(1) reduce in any manner the amount of, or delay the
timing of, any receipt by the Trustee of payments on the Equipment
Notes held in such Trust or distributions that are required to be made
herein on any Certificate of such series, or change any date of
payment of any Certificate of such series, or change the place of
payment where, or the coin or currency in which, any Certificate of
such series is
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payable, or impair the right to institute suit for the enforcement of
any such payment or distribution on or after the Regular Distribution
Date or Special Distribution Date applicable thereto; or
(2) permit the disposition of any Equipment Note in the Trust
Property of such Trust except as permitted by this Agreement or
otherwise deprive such Certificateholder of the benefit of the
ownership of the Equipment Notes in such Trust; or
(3) alter the priority of distributions specified in any
Intercreditor Agreement; or
(4) reduce the specified percentage of the aggregate
Fractional Undivided Interests of such Trust which is required for any
such supplemental agreement, or reduce such specified percentage
required for any waiver (of compliance with certain provisions of this
Agreement or certain defaults hereunder and their consequences)
provided for in this Agreement;
(5) modify any of the provisions of this Section or Section
6.05, except to increase any such percentage or to provide that
certain other provisions of this Agreement cannot be modified or
waived without the consent of the Certificateholder of each
Certificate or such series affected thereby; or
(6) adversely affect the status of any Trust as a grantor
trust under Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle
A of the Internal Revenue Code of 1986, as amended, for U.S. federal
income tax purposes.
It shall not be necessary for any Act of such
Certificateholders under this Section to approve the particular form of any
proposed supplemental agreement but it shall be sufficient if such Act shall
approve the substance thereof.
Section 9.03. Documents Affecting Immunity or Indemnity. If
in the opinion of the Trustee any document required to be executed by it
pursuant to the terms of Section 9.01 or 9.02 affects any interest, right,
duty, immunity or indemnity in favor of the Trustee under this Basic Agreement
or any Trust Supplement, the Trustee may in its discretion decline to execute
such document.
Section 9.04. Execution of Supplemental Agreements. In
executing, or accepting the additional trusts created by, any supplemental
agreement permitted by this Article or the modifications thereby of the trusts
created by this Agreement, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
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execution of such supplemental agreement is authorized or permitted by this
Agreement.
Section 9.05. Effect of Supplemental Agreements. Upon the
execution of any supplemental agreement under this Article, this Basic
Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Basic Agreement for all purposes; and every
Certificateholder of each series theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby to the extent applicable to such
series.
Section 9.06. Conformity with Trust Indenture Act. Every
supplemental agreement executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.07. Reference in Certificates to Supplemental
Agreements. Certificates of each series authenticated and delivered after the
execution of any supplemental agreement applicable to such series pursuant to
this Article may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental agreement; and, in such case, suitable
notation may be made upon Outstanding Certificates of such series after proper
presentation and demand.
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indenture and
Other Note Documents. In the event that the Trustee, as holder of any
Equipment Notes in trust for the benefit of the Certificateholders of any
series or as Controlling Party, receives a request for a consent to any
amendment, modification, waiver or supplement under any Indenture or other Note
Document the Trustee shall forthwith send a notice of such proposed amendment,
modification, waiver or supplement to each Certificateholder of such series
registered on the Register as of the date of such notice. The Trustee shall
request from Certificateholders of such series a Direction as to (a) whether or
not to take or refrain from taking any action which a holder of such Equipment
Note has the option to direct, (b) whether or not to give or execute any
waivers, consents, amendments, modifications or supplements as a holder of such
Equipment Note and (c) how to vote any Equipment Note if a vote has been called
for with respect thereto. Provided such a request for Certificateholder
Direction shall have been made, in directing any action or casting any vote or
giving any consent as the holder of any Equipment Note, the Trustee shall vote
for or give consent to any such action with respect to such Equipment Note in
the same proportion as that of (i) the aggregate face amounts of all
Certificates of such series actually voted in favor of or for
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giving consent to such action by Acts of Certificateholders to (ii) the
aggregate face amount of all Outstanding Certificates. For purposes of the
immediately preceding sentence, a Certificate shall have been "actually voted"
if the Holder of such Certificate has delivered to the Trustee an instrument
evidencing such Holder's consent to such Direction on or prior to the Business
Day before the Trustee directs such action or casts such vote or gives such
consent. Notwithstanding the foregoing, but subject to Section 6.04 and any
Intercreditor Agreement, the Trustee may, in its own discretion and at its own
direction consent and notify the relevant Indenture Trustee of such consent to
any amendment, modification, waiver or supplement under the relevant Indenture
or any Note Document, if an Event of Default hereunder shall have occurred and
be continuing, or if such amendment modification or waiver will not adversely
affect the interests of the Certificateholders.
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01. Termination of the Trusts. In respect of each
Trust created by the Basic Agreement as supplemented by a related Trust
Supplement, the respective obligations and responsibilities of the Company and
the Trustee created under this Agreement with respect to the Trust created
hereby and such Trust shall terminate upon the distribution to all Holders of
the Certificates of the series of such Trust and the Trustee of all amounts
required to be distributed to them pursuant to this Agreement and the
disposition of all property held as part of the Trust Property of the related
series of such Trust; provided, however, that in no event shall such Trust
continue beyond the earlier of (i) one hundred ten (110) years following the
date of the earliest execution of this Agreement or (ii) the expiration of
twenty-one (21) years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court of St.
James's, living on the date hereof.
Notice of any termination of a Trust, specifying the
applicable Regular Distribution Date (or applicable Special Distribution Date,
as the case may be) upon which the Certificateholders of any series may
surrender their Certificates to the Trustee for payment of the final
distribution and cancellation, shall be mailed promptly by the Trustee to
Certificateholders of such series not earlier than the minimum number of days
and not more than the maximum number of days specified therefor in the related
Trust Supplement preceding such final distribution specifying (A) the Regular
Distribution Date (or Special Distribution Date, as the case may be) upon which
the proposed final payment of the Certificates of such series will be made upon
presentation and surrender of Certificates of such series at the office or
agency of the Trustee therein specified,
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(B) the amount of any such proposed final payment, and (C) that the Record Date
otherwise applicable to such Regular Distribution Date (or Special Distribution
Date, as the case may be) is not applicable, payments being made only upon
presentation and surrender of the Certificates of such series at the office or
agency of the Trustee therein specified. The Trustee shall give such notice to
the Registrar at the time such notice is given to Certificateholders of such
series. Upon presentation and surrender of the Certificates of such series in
accordance with such notice, the Trustee shall cause to be distributed to
Certificateholders of such series amounts distributable on such Regular
Distribution Date (or Special Distribution Date, as the case may be) pursuant
to Section 4.02.
In the event that all of the Certificateholders of such series
shall not surrender their Certificates for cancellation within six months after
the date specified in the above-mentioned written notice, the Trustee shall
give a second written notice to the remaining Certificateholders of such series
to surrender their Certificates for cancellation and receive the final
distribution with respect thereto. No additional interest shall accrue on the
Certificates after the Regular Distribution Date (or Special Distribution Date,
as the case may be) specified in the first written notice. In the event that
any money held by the Trustee for the payment of distributions on the
Certificates of such series shall remain unclaimed for two years (or such
lesser time as the Trustee shall be satisfied, after sixty days' notice from
the Company, is one month prior to the escheat period provided under applicable
law) after the final distribution date with respect thereto, the Trustee shall
pay to each Indenture Trustee the appropriate amount of money relating to such
Indenture Trustee and shall give written notice thereof to the related Owner
Trustees and the Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder of any series shall not
operate to terminate this Agreement, or the related Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations, and
liabilities of the parties hereto or any of them.
Section 12.02. Liabilities of Certificateholders. Neither
the existence of the Trust nor any provision in this Agreement is intended to
or shall limit the liability the Certificateholders would otherwise incur if
the Certificateholders owned Trust Property as co-owners, or incurred
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any obligations of the Trust, directly rather than through the Trust.
Section 12.03. Certificates Nonassessable and Fully Paid.
Certificateholders of each series shall not be personally liable for
obligations of the related Trust, the Fractional Undivided Interests
represented by the Certificates of such series shall be nonassessable for any
losses or expenses of such Trust or for any reason whatsoever, and Certificates
of such series upon authentication thereof by the Trustee pursuant to Section
3.02 are and shall be deemed fully paid. No Certificateholder of such series
shall have any right (except as expressly provided herein) to vote or in any
manner otherwise control the operation and management of the related Trust
Property, the related Trust, or the obligations of the parties hereto, nor
shall anything set forth herein, or contained in the terms of the Certificates
of such series, be construed so as to constitute the Certificateholders of such
series from time to time as partners or members of an association.
Section 12.04. Registration of Equipment Notes in Name of
Subordination Agent. If a Trust is party to an Intercreditor Agreement, the
Trustee agrees that all Equipment Notes to be purchased by such Trust shall be
issued in the name of the Subordination Agent under such Intercreditor
Agreement or its nominee and held by such Subordination Agent in trust for the
benefit of the Certificateholders, or, if not so held, such Subordination Agent
or its nominee shall be reflected as the owner of such Equipment Notes in the
register of the issuer of such Equipment Notes.
Section 12.05. Notices.
(a) Unless otherwise specifically provided herein or in the
applicable Trust Supplement with respect to any Trust, all notices required
under the terms and provisions of this Basic Agreement or such Trust Supplement
with respect to such Trust shall be in English and in writing and any such
notice may be given by United States mail, courier service, telegram, telex,
telemessage, telecopy, telefax, cable or facsimile (confirmed by telephone or
in writing in the case of notice by telegram, telex, telemessage, telecopy,
telefax, cable or facsimile) or any other customary means of communication,
if to the Company, to:
Mail: America West Airlines, Inc.
0000 Xxxx Xxx Xxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Senior Vice President-Legal Affairs
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Facsimile: (000) 000-0000
if to the Trustee, to:
Mail: Fleet National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Administration -
Responsible Officer - America West
Airlines Pass Through Trusts under the
Pass Through Trust Agreement dated
June __, 1997
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Any such notice shall be effective when received.
(b) The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Certificateholders of any
series shall be mailed by first-class mail to the addresses for
Certificateholders of such series shown on the Register kept by the Registrar
and to addresses filed with the Trustee for Certificate Owners of such series.
Failure so to mail a notice or communication or any defect in such notice or
communication shall not affect its sufficiency with respect to other
Certificateholders or Certificate Owners of such series.
(d) If the Company mails a notice or communication to the
Certificateholders of such series, it shall mail a copy to the Trustee and to
each Paying Agent for such series at the same time.
(e) Notwithstanding the foregoing, all communications or
notices to the Trustee shall be deemed to be given only when received by a
Responsible Officer of the Trustee.
(f) The Trustee shall promptly furnish the Company with a
copy of any demand, notice or written communication received by the Trustee
hereunder from any Certificateholder, Owner Trustee or Indenture Trustee.
Section 12.06. Governing Law. THIS BASIC AGREEMENT HAS BEEN
DELIVERED IN THE STATE OF NEW YORK AND, TOGETHER WITH ALL TRUST SUPPLEMENTS AND
CERTIFICATES, SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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Section 12.07. Severability of Provisions. If any one or
more of the covenants, agreements, provisions, or terms of this Agreement shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions, or terms shall be deemed severable from the remaining covenants,
agreements, provisions, or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or any
Trust or of the Certificates of any series or the rights of the
Certificateholders thereof.
Section 12.08. Trust Indenture Act Controls. This Agreement
is subject to the provisions of the Trust Indenture Act and shall, to the
extent applicable, be governed by such provisions.
Section 12.09. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 12.10. Successors and Assigns. All covenants,
agreements, representations and warranties in this Agreement by the Trustee and
the Company shall bind and, to the extent permitted hereby, shall inure to the
benefit of and be enforceable by their respective successors and permitted
assigns, whether so expressed or not.
Section 12.11. Benefits of Agreement. Nothing in this
Agreement or in the Certificates of any series, express or implied, shall give
to any Person, other than the parties hereto and their successors hereunder,
and the Certificateholders of each series, any benefit or any legal or
equitable right, remedy or claim under this Agreement.
Section 12.12. Legal Holidays. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate of
any series shall not be a Business Day with respect to such series, then
(notwithstanding any other provision of this Agreement) payment need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on such Regular Distribution Date or Special
Distribution Date, and no interest shall accrue during the intervening period.
Section 12.13. Counterparts. For the purpose of facilitating
the execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original and all of which counterparts
shall constitute but one and the same instrument.
Section 12.14. Communication by Certificateholders with Other
Certificateholders. Certificateholders of any series
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may communicate with other Certificateholders of such series with respect to
their rights under this Basic Agreement, the related Trust Supplement or the
Certificates of such series pursuant to Section 3.12(b) of the Trust Indenture
Act. The Company, the Trustee and any and all other persons benefitted by this
Agreement shall have the protection afforded by Section 312(c) of the Trust
Indenture Act.
Section 12.15. Intention of Parties. The parties hereto
intend that any Trust created hereunder be classified for U.S. federal income
tax purposes as a grantor trust under Subpart E, Part I of Subchapter J of
Chapter 1 of Subtitle A of the Internal Revenue Code of 1986, as amended, and
not as a trust or association taxable as a corporation or as a partnership.
The powers granted and obligations undertaken pursuant to this Agreement shall
be so construed so as to further such intent.
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IN WITNESS WHEREOF, the Company and the Trustee have caused
this Basic Agreement to be duly executed by their respective officers, all as
of the day and year first above written.
AMERICA WEST AIRLINES, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
FLEET NATIONAL BANK,
as Trustee
By:
---------------------------
Name:
-------------------------
Title:
------------------------
67
EXHIBIT A
FORM OF CERTIFICATE
(1)UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
AMERICA WEST AIRLINES PASS THROUGH TRUST _________________
Pass Through Certificate, Series___________
Issuance Date: _____________ __, ____
Final Distribution Date: ______________, ____
evidencing a fractional undivided interest in a
trust, the property of which includes certain
equipment notes each secured by one or more
Aircraft owned by or leased to America West
Airlines, Inc.
Certificate
No.__________ $__________ Fractional Undivided Interest
representing ________% of the Trust per
$1,000 of Reference Principal Amount
THIS CERTIFIES THAT ___________________, for value received,
is the registered owner of a Fractional Undivided Interest in the amount of
$________________ (_________________ dollars) (the "Reference Principal
Amount") in the America West Airlines Pass Through Trust _____________ (the
"Trust") created by Fleet National Bank, as trustee (the "Trustee"), pursuant
to a Pass Through Trust Agreement dated as of June __, 1997 (the "Basic
Agreement") between the Trustee and America West Airlines, Inc., a Delaware
corporation (the "Company"), as supplemented by Trust Supplement No.________
thereto dated ____________, ____ (collectively, the "Agreement"), between the
Trustee and the Company, a summary of certain of the pertinent provisions of
which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings
____________________
(1) This legend to appear on Book_Entry Certificates to be deposited
with The Depository Trust Company. One Certificate may be
issued in definitive form which shall not have this legend.
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assigned to them in the Agreement. This Certificate is one of the duly
authorized Certificates designated as "America West Airlines Pass Through
Certificates, Series _________" (herein called the "Certificates"). This
Certificate is issued under and is subject to the terms, provisions, and
conditions of the Agreement and any Intercreditor Agreement, to which
agreements the Certificateholder of this Certificate by virtue of the
acceptance hereof assents and by which such Certificateholder is bound. The
property of the Trust includes certain Equipment Notes and all rights of the
Trust to receive any payments under any Intercreditor Agreement or Liquidity
Facility (the "Trust Property"). Each issue of the Equipment Notes is secured
by a security interest in aircraft leased to or owned by the Company.
The Certificates represent fractional undivided interests in
the Trust and the Trust Property, and have no rights, benefits or interest in
respect of any other separate trust established pursuant to the terms of the
Basic Agreement for any other series of certificates issued pursuant thereto.
The undivided percentage interest in the Trust represented by each of this
Certificate (as specified above) and the other America West Airlines Pass
Through Certificates, Series [____] was determined on the basis of (x) the
aggregate of the Reference Principal Amount of this Certificate (as specified
above) and of the other America West Airlines Pass Through Certificates, Series
[____] and (y) the aggregate original principal amounts of the Equipment Notes
constituting the Trust Property.
Subject to and in accordance with the terms of the Agreement
and any Intercreditor Agreement, from funds then available to the Trustee,
there will be distributed on each ________and _____________ (a "Regular
Distribution Date"), commencing on ______________, ____, to the Person in whose
name this Certificate is registered at the close of business on the 15th day
preceding the Regular Distribution Date, an amount in respect of the Scheduled
Payments on the Equipment Notes due on such Regular Distribution Date, the
receipt of which has been confirmed by the Trustee, equal to the product of the
percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Scheduled Payments. Subject to and in accordance with
the terms of the Agreement, in the event that Special Payments on the Equipment
Notes are received by the Trustee, from funds then available to the Trustee,
there shall be distributed on the applicable Special Distribution Date, to the
Person in whose name this Certificate is registered at the close of business on
the 15th day preceding the Special Distribution Date, an amount in respect of
such Special Payments on the Equipment Notes, the receipt of which has been
confirmed by the Trustee, equal to the product of the percentage interest in
the Trust evidenced by this Certificate and an amount equal to the sum of such
Special Payments so received. If a Regular Distribution Date or Special
Distribution Date is not a Business Day, distribution shall be made on the
immediately following
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Business Day with the same force and effect as if made on such Regular
Distribution Date or Special Distribution Date and no interest shall accrue
during the intervening period. The Trustee shall mail notice of each Special
Payment and the Special Distribution Date therefor to the Certificateholder of
this Certificate.
Distributions on this Certificate will be made by the Trustee
by check mailed to the Person entitled thereto, without the presentation or
surrender of this Certificate or the making of any notation hereon. Except as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after notice mailed by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency of the Trustee specified
in such notice.
The Certificates do not represent a direct obligation of, or
an obligation guaranteed by, or an interest in, the Company or the Trustee or
any affiliate thereof. The Certificates are limited in right or payment, all
as more specifically set forth on the face hereof and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property to make such
payments in accordance with the terms of the Agreement. Each Certificateholder
of this Certificate, by its acceptance hereof, agrees that it will look solely
to the income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the entire Agreement and reference is
made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds, and duties evidenced hereby. A copy of the
Agreement may be examined during normal business hours at the principal office
of the Trustee, and at such other places, if any, designated by the Trustee, by
any Certificateholder upon request.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Certificateholders under the
Agreement at any time by the Company and the Trustee with the consent of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust. Any
such consent by the Certificateholder of this Certificate shall be conclusive
and binding on such Certificateholder and upon all future Certificateholders of
this Certificate and of any Certificate issued upon transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment
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thereof, in certain limited circumstances, without the consent of the
Certificateholders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth, the transfer of this Certificate is registrable in the
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in its capacity as Registrar, or
by any successor Registrar, duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Registrar,
duly executed by the Certificateholder hereof or such Certificateholder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations evidencing the same aggregate Fractional Undivided
Interest in the Trust will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 Fractional Undivided Interest and
integral multiples thereof, provided that one Certificate may be in a different
denomination. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
authorized denominations evidencing the same aggregate Fractional Undivided
Interest in the Trust, as requested by the Certificateholder surrendering the
same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee shall require payment of a sum sufficient
to cover any tax or governmental charge payable in connection therewith.
The Trustee, the Registrar, and any agent of the Trustee or
the Registrar may treat the person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Trustee, the Registrar,
nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts to be distributed to them pursuant to the
Agreement and the disposition of all property held as part of the Trust
Property.
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS PROVISIONS OF THE STATE OF NEW YORK.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
AMERICA WEST AIRLINES PASS THROUGH TRUST
By: FLEET NATIONAL BANK,
as Trustee
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Dated:
-------------------
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[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred
to in the within-mentioned Agreement.
FLEET NATIONAL BANK,
as Trustee
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
