EXHIBIT 4(b)(1)
EXECUTION COPY
INTERCREDITOR AGREEMENT
Dated as of September 17, 2001
among
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee of the
Delta Air Lines Pass Through Trust 2001-1A-1,
Delta Air Lines Pass Through Trust 2001-1A-2,
Delta Air Lines Pass Through Trust 2001-1B,
Delta Air Lines Pass Through Trust 2001-1C
and
Delta Air Lines Pass Through Trust 2001-1D
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as Class A-1 Liquidity Provider,
Class A-2 Liquidity Provider,
Class B Liquidity Provider,
and
Class C Liquidity Provider
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
as Subordination Agent
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Definitions....................................................
ARTICLE II
TRUST ACCOUNTS; CONTROLLING PARTY
Section 2.01. Agreement to Terms of Subordination; Payments from Monies
Received Only..................................................
Section 2.02. Trust Accounts.................................................
Section 2.03. Deposits to the Collection Account and Special Payments
Account; Certain Distributions.................................
Section 2.04. Distributions of Special Payments..............................
Section 2.05. Designated Representatives.....................................
Section 2.06. Controlling Party..............................................
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
AMOUNTS RECEIVED
Section 3.01. Written Notice of Distribution.................................
Section 3.02. Distribution of Amounts on Deposit in the Collection Account...
Section 3.03. Distribution of Amounts on Deposit Following a Triggering
Event..........................................................
Section 3.04. Other Payments.................................................
Section 3.05. Payments to the Trustees and the Liquidity Providers...........
Section 3.06. Liquidity Facilities...........................................
ARTICLE IV
EXERCISE OF REMEDIES
Section 4.01. Directions from the Controlling Party..........................
Section 4.02. Remedies Cumulative............................................
Section 4.03. Discontinuance of Proceedings..................................
Section 4.04. Right of Certificateholders to Receive Payments Not to Be
Impaired.......................................................
ARTICLE V
DUTIES OF THE SUBORDINATION AGENT;
AGREEMENTS OF TRUSTEES, ETC.
Section 5.01. Notice of Indenture Event of Default or Triggering Event.......
Section 5.02. Indemnification................................................
Section 5.03. No Duties Except as Specified in Intercreditor Agreement.......
Section 5.04. Notice from the Liquidity Providers and Trustees...............
ARTICLE VI
THE SUBORDINATION AGENT
Section 6.01. Authorization; Acceptance of Trusts and Duties.................
Section 6.02. Absence of Duties..............................................
Section 6.03. No Representations or Warranties as to Documents...............
Section 6.04. No Segregation of Monies; No Interest..........................
Section 6.05. Reliance; Agents; Advice of Counsel............................
Section 6.06. Capacity in Which Acting.......................................
Section 6.07. Compensation...................................................
Section 6.08. May Become Certificateholder...................................
Section 6.09. Subordination Agent Required; Eligibility......................
Section 6.10. Money to Be Held in Trust......................................
ARTICLE VII
SUCCESSOR SUBORDINATION AGENT
Section 7.01. Replacement of Subordination Agent; Appointment of Successor...
ARTICLE VIII
SUPPLEMENTS AND AMENDMENTS
Section 8.01. Amendments, Waivers, Etc.......................................
Section 8.02. Subordination Agent Protected..................................
Section 8.03. Effect of Supplemental Agreements..............................
Section 8.04. Notice to Rating Agencies......................................
ARTICLE IX
MISCELLANEOUS
Section 9.01. Termination of Intercreditor Agreement.........................
Section 9.02. Intercreditor Agreement for Benefit of Trustees, Liquidity
Providers and Subordination Agent..............................
Section 9.03. Notices........................................................
Section 9.04. Severability...................................................
Section 9.05. No Oral Modifications or Continuing Waivers....................
Section 9.06. Successors and Assigns.........................................
Section 9.07. Headings.......................................................
Section 9.08. Counterparts...................................................
Section 9.09. Subordination..................................................
Section 9.10. Governing Law..................................................
Section 9.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of
Immunity.......................................................
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT, dated as of September 17, 2001, is
made by and among STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, a national banking association (in its individual capacity,
together with its successors and permitted assigns, "State Street"), not in its
individual capacity but solely as trustee of each Trust (such term and other
capitalized terms used herein without definition being defined as provided in
Article I); LANDESBANK HESSEN-THURINGEN GIROZENTRALE, a banking institution
organized under the laws of Germany ("Helaba"), as Class A-1 Liquidity Provider,
Class A-2 Liquidity Provider, Class B Liquidity Provider and Class C Liquidity
Provider, and STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual capacity except as expressly set forth
herein, but solely as Subordination Agent and trustee hereunder (in such
capacity, together with any successor appointed pursuant to Article VII, the
"Subordination Agent").
WHEREAS, pursuant to each Indenture with respect to an Aircraft,
Delta will issue on a recourse basis five series of Equipment Notes secured by
such Aircraft;
WHEREAS, pursuant to the Participation Agreements, each Trust will
acquire those Equipment Notes having an interest rate identical to the interest
rate applicable to the Certificates to be issued by such Trust;
WHEREAS, pursuant to each Trust Agreement, the Trust created thereby
proposes to issue a single class of Certificates (a "Class") bearing the
interest rate and having the final distribution date described in such Trust
Agreement on the terms and subject to the conditions set forth therein;
WHEREAS, pursuant to the Underwriting Agreement, the Underwriters
propose to purchase the Class A-1, Class A-2, Class B and Class C Certificates
in the aggregate face amount set forth on Schedule I thereto on the terms and
subject to the conditions set forth therein;
WHEREAS, the Initial Class D Holder proposes to purchase the Class D
Certificates in the aggregate face amount of $150,000,000 on the terms and
subject to the conditions set forth in the Class D Trust Agreement and the
Business Trust Agreement;
WHEREAS, the Liquidity Provider proposes to enter into four separate
revolving credit agreements with the Subordination Agent, as agent and trustee
for the Trustee of each of the Class A-1 Trust, the Class A-2 Trust, the Class B
Trust and the Class C Trust, respectively, for the benefit of the
Certificateholders of such Trust; and
WHEREAS, it is a condition precedent to the obligations of the
Underwriters under the Underwriting Agreement that the Subordination Agent, the
Trustees and the Liquidity Provider agree to the terms of subordination set
forth in this Agreement in respect of each Class of Certificates, and the
Subordination Agent, the Trustees and the Liquidity Provider, by entering into
this Agreement, hereby acknowledge and agree to such terms of subordination and
the other provisions of this Agreement;
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. (a) The definitions stated herein apply
equally to the singular and the plural forms of the terms defined.
(b) All references in this Agreement to designated "Articles", "Sections"
and other subdivisions are to the designated Articles, Sections and other
subdivisions of this Agreement.
(c) The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
(d) Unless the context otherwise requires, whenever the words "including",
"include" or "includes" are used herein, it shall be deemed to be followed by
the phrase "without limitation".
(e) For purposes of this Agreement, unless the context otherwise requires,
the following capitalized terms shall have the following meanings:
"ACCELERATION" means, with respect to the amounts payable in respect
of the Equipment Notes issued under any Indenture, such amounts becoming
immediately due and payable by declaration or otherwise. "Accelerate",
"Accelerated" and "Accelerating" have meanings correlative to the foregoing.
"ADJUSTED EXPECTED DISTRIBUTIONS" means, with respect to the
Certificates of any Trust on any Current Distribution Date, the sum of (x)
accrued and unpaid interest in respect of such Certificates and (y) the greater
of:
(A) the difference between (x) the Pool Balance of such Certificates
as of the immediately preceding Distribution Date (or, if the Current
Distribution Date is the first Distribution Date, the original aggregate
face amount of the Certificates of such Trust) and (y) the Pool Balance of
such Certificates as of the Current Distribution Date calculated on the
basis that (i) the principal of the Non-Performing Equipment Notes held in
such Trust has been paid in full and such payments have been distributed
to the holders of such Certificates, (ii) the principal of the Performing
Equipment Notes held in such Trust has been paid when due (but without
giving effect to any Acceleration of Performing Equipment Notes) and such
payments have been distributed to the holders of such Certificates and
(iii) the principal of any Equipment Notes formerly held in such Trust
that have been sold pursuant to the terms hereof has been paid in full and
such payments have been distributed to the holders of such Certificates,
and
(B) the amount of the excess, if any, of (i) the Pool Balance of
such Class of Certificates as of the immediately preceding Distribution
Date (or, if the Current Distribution Date is the first Distribution Date,
the original aggregate face amount of the Certificates of such Trust),
over (ii) the Aggregate LTV Collateral Amount for such Class of
Certificates for the Current Distribution Date;
provided that, until the date of the initial LTV Appraisals for all the
Aircraft, clause (B) shall not apply.
For purposes of calculating Adjusted Expected Distributions with
respect to the Certificates of any Trust, any premium paid on the Equipment
Notes held in such Trust that has not been distributed to the Certificateholders
of such Trust (other than such premium or a portion thereof applied to the
distribution of interest on the Certificates of such Trust or the reduction of
the Pool Balance of such Trust) shall be added to the amount of Adjusted
Expected Distributions.
"ADVANCE" means, with respect to any Liquidity Facility, any Advance
as defined in such Liquidity Facility.
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, 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, directly or
indirectly, to direct the management and policies of such Person, whether
through the ownership of voting securities or by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"AGGREGATE LTV COLLATERAL AMOUNT" for any Class of Certificates for
any Distribution Date means an amount, not less than zero, equal to the product
of (i) the sum of the applicable LTV Collateral Amounts for such Class of
Certificates for all Aircraft, minus the Pool Balance for each Class of
Certificates, if any, senior to such Class, after giving effect to any
distribution of principal on such Distribution Date with respect to such senior
Class or Classes multiplied by (ii) (a) in the case of the Class A-1
Certificates or Class A-2 Certificates, a fraction the numerator of which equals
the Pool Balance for the Class A-1 Certificates or the Class A-2 Certificates,
as the case may be, and the denominator of which equals the aggregate Pool
Balance for the Class A-1 Certificates and the Class A-2 Certificates, in each
case prior to giving effect to any distribution of principal on such
Distribution Date with respect to either such Class of Certificates, and (b) in
the case of the Class B Certificates, the Class C Certificates and the Class D
Certificates, 1.0.
"AIRCRAFT" means, with respect to each Indenture, the "Aircraft"
referred to therein.
"APPRAISAL" means a current fair market value appraisal (which may
be a "desktop" appraisal) performed by any Appraiser or any other nationally
recognized appraiser on the basis of an arm's-length transaction between an
informed and willing purchaser under no compulsion to buy and an informed and
willing seller under no compulsion to sell and both having knowledge of all
relevant facts.
"APPRAISED CURRENT MARKET VALUE" of any Aircraft means the lower of
the average and the median of the three most recent LTV Appraisals of such
Aircraft.
"APPRAISERS" means Aircraft Information Systems, Inc., BK
Associates, Inc. and AvSolutions, Inc.
"AVAILABLE AMOUNT" means, with respect to any Liquidity Facility on
any drawing date, subject to the proviso contained in the first sentence of
Section 3.06(g), an amount equal to (a) the Stated Amount of such Liquidity
Facility at such time, less (b) the aggregate amount of each Interest Drawing
honored by the Liquidity Provider under such Liquidity Facility on or prior to
such date that has not been reimbursed or reinstated as of such date; provided
that, following a Downgrade Drawing, a Non-Extension Drawing or a Final Drawing
under such Liquidity Facility, the Available Amount of such Liquidity Facility
shall be zero.
"BASIC AGREEMENT" means that certain Pass Through Trust Agreement,
dated as of November 16, 2000, between Delta and State Street, as the same may
be amended, supplemented or otherwise modified from time to time in accordance
with its terms, but does not include any Trust Supplement.
"BANKRUPTCY CODE" means the United States Bankruptcy Code, 11 United
States Codess.ss.101 et seq., as amended, or any successor statutEs thereto.
"BUSINESS DAY" means, with respect to the Certificates of any Class,
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, Atlanta, Georgia, or, so
long as any Certificate of such Class is outstanding, the city and state in
which the Trustee, the Subordination Agent or any related Loan Trustee maintains
its Corporate Trust Office or receives and disburses funds, and that, solely
with respect to draws under any Liquidity Facility, also is a "Business Day" as
defined in such Liquidity Facility.
"BUSINESS TRUST AGREEMENT" means the Trust Agreement dated as of
September 14, 2001 between Aero Assurance Ltd. and Wilmington Trust Company, as
Owner Trustee, governing the creation and administration of the Initial Class D
Holder, as the same may be amended, supplemented or otherwise modified from time
to time in accordance with its terms.
"CASH COLLATERAL ACCOUNT" means the Class A-1 Cash Collateral
Account, the Class A-2 Cash Collateral Account, the Class B Cash Collateral
Account or the Class C Cash Collateral Account, as applicable.
"CERTIFICATE" means a Class A-1 Certificate, a Class A-2
Certificate, a Class B Certificate, a Class C Certificate or a Class D
Certificate, as applicable.
"CERTIFICATEHOLDER" means, with respect to any Class of
Certificates, the Person in whose name a Certificate is registered in the
Register for the Certificates of such Class.
"CITIZEN OF THE UNITED STATES" has the meaning specified for such
term in Section 40102(a)(15) of Title 49 of the United States Code or any
similar legislation of the United States enacted in substitution or replacement
therefor.
"CLASS" has the meaning specified in the recitals to this Agreement.
"CLASS A-1 CASH COLLATERAL ACCOUNT" means an Eligible Deposit
Account in the name of the Subordination Agent maintained at an Eligible
Institution, which shall be the Subordination Agent if it so qualifies, into
which amounts shall be deposited as referred to in Section 3.06(f).
"CLASS A-1 CERTIFICATEHOLDER" means, at any time, any
Certificateholder of one or more Class A-1 Certificates.
"CLASS A-1 CERTIFICATES" means the certificates issued by the Class
A-1 Trust, substantially in the form of Exhibit A to the Class A-1 Trust
Agreement, and authenticated by the Class A-1 Trustee, representing Fractional
Undivided Interests in the Class A-1 Trust, and any certificates issued in
exchange therefor or replacement thereof pursuant to the terms of the Class A-1
Trust Agreement.
"CLASS A-1 LIQUIDITY FACILITY" means, initially, the Revolving
Credit Agreement, dated as of the date hereof, between the Subordination Agent,
as agent and trustee for the Class A-1 Trustee, and Helaba and, from and after
the replacement of such agreement pursuant hereto, the Replacement Liquidity
Facility therefor, if any, in each case as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"CLASS A-1 LIQUIDITY PROVIDER" means Helaba, together with any
Replacement Liquidity Provider that has issued a Replacement Liquidity Facility
to replace the Class A-1 Liquidity Facility pursuant to Section 3.06(c) or
3.06(e).
"CLASS A-1 TRUST" means the Delta Air Lines Pass Through Trust
2001-1A-1 created and administered pursuant to the Class A-1 Trust Agreement.
"CLASS A-1 TRUST AGREEMENT" means the Basic Agreement, as
supplemented by Trust Supplement No. 2001-1A-1 thereto, dated as of the date
hereof, governing the creation and administration of the Delta Air Lines Pass
Through Trust 2001-1A-1 and the issuance of the Class A-1 Certificates, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
"CLASS A-1 TRUSTEE" means State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity except as
expressly set forth in the Class A-1 Trust Agreement, but solely as trustee
under the Class A-1 Trust Agreement, together with any successor trustee
appointed pursuant thereto.
"CLASS A-2 CASH COLLATERAL ACCOUNT" means an Eligible Deposit
Account in the name of the Subordination Agent maintained at an Eligible
Institution, which shall be the Subordination Agent if it so qualifies, into
which amounts shall be deposited as referred to in Section 3.06(f).
"CLASS A-2 CERTIFICATEHOLDER" means, at any time, any
Certificateholder of one or more Class A-2 Certificates.
"CLASS A-2 CERTIFICATES" means the certificates issued by the Class
A-2 Trust, substantially in the form of Exhibit A to the Class A-2 Trust
Agreement, and authenticated by the Class A-2 Trustee, representing Fractional
Undivided Interests in the Class A-2 Trust, and any certificates issued in
exchange therefor or replacement thereof pursuant to the terms of the Class A-2
Trust Agreement.
"CLASS A-2 LIQUIDITY FACILITY" means, initially, the Revolving
Credit Agreement, dated as of the date hereof, between the Subordination Agent,
as agent and trustee for the Class A-2 Trustee, and Helaba and, from and after
the replacement of such agreement pursuant hereto, the Replacement Liquidity
Facility therefor, if any, in each case as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"CLASS A-2 LIQUIDITY PROVIDER" means Helaba, together with any
Replacement Liquidity Provider that has issued a Replacement Liquidity Facility
to replace the Class A-2 Liquidity Facility pursuant to Section 3.06(c) or
3.06(e).
"CLASS A-2 TRUST" means the Delta Air Lines Pass Through Trust
2001-1A-2 created and administered pursuant to the Class A-2 Trust Agreement.
"CLASS A-2 TRUST AGREEMENT" means the Basic Agreement, as
supplemented by Trust Supplement No. 2001-1A-2 thereto, dated as of the date
hereof, governing the creation and administration of the Delta Air Lines Pass
Through Trust 2001-1A-2 and the issuance of the Class A-2 Certificates, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
"CLASS A-2 TRUSTEE" means State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity except as
expressly set forth in the Class A-2 Trust Agreement, but solely as trustee
under the Class A-2 Trust Agreement, together with any successor trustee
appointed pursuant thereto.
"CLASS B CASH COLLATERAL ACCOUNT" means an Eligible Deposit Account
in the name of the Subordination Agent maintained at an Eligible Institution,
which shall be the Subordination Agent if it so qualifies, into which amounts
shall be deposited as referred to in Section 3.06(f).
"CLASS B CERTIFICATEHOLDER" means, at any time, any
Certificateholder of one or more Class B Certificates.
"CLASS B CERTIFICATES" means the certificates issued by the Class B
Trust, substantially in the form of Exhibit A to the Class B Trust Agreement,
and authenticated by the Class B Trustee, representing Fractional Undivided
Interests in the Class B Trust, and any certificates issued in exchange therefor
or replacement thereof pursuant to the terms of the Class B Trust Agreement.
"CLASS B LIQUIDITY FACILITY" means, initially, the Revolving Credit
Agreement, dated as of the date hereof, between the Subordination Agent, as
agent and trustee for the Class B Trustee, and Helaba, and, from and after the
replacement of such agreement pursuant hereto, the Replacement Liquidity
Facility therefor, if any, in each case as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"CLASS B LIQUIDITY PROVIDER" means Helaba, together with any
Replacement Liquidity Provider that has issued a Replacement Liquidity Facility
to replace the Class B Liquidity Facility pursuant to Section 3.06(c) or
3.06(e).
"CLASS B TRUST" means the Delta Air Lines Pass Through Trust 2001-1B
created and administered pursuant to the Class B Trust Agreement.
"CLASS B TRUST AGREEMENT" means the Basic Agreement, as supplemented
by Trust Supplement No. 2001-1B thereto, dated as of the date hereof, governing
the creation and administration of the Delta Air Lines Pass Through Trust
2001-1B and the issuance of the Class B Certificates, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
its terms.
"CLASS B TRUSTEE" means State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity except as
expressly set forth in the Class B Trust Agreement, but solely as trustee under
the Class B Trust Agreement, together with any successor trustee appointed
pursuant thereto.
"CLASS C CASH COLLATERAL ACCOUNT" means an Eligible Deposit Account
in the name of the Subordination Agent maintained at an Eligible Institution,
which shall be the Subordination Agent if it so qualifies, into which amounts
shall be deposited as referred to in Section 3.06(f).
"CLASS C CERTIFICATEHOLDER" means, at any time, any
Certificateholder of one or more Class C Certificates.
"CLASS C CERTIFICATES" means the certificates issued by the Class C
Trust, substantially in the form of Exhibit A to the Class C Trust Agreement,
and authenticated by the Class C Trustee, representing Fractional Undivided
Interests in the Class C Trust, and any certificates issued in exchange therefor
or replacement thereof pursuant to the terms of the Class C Trust Agreement.
"CLASS C LIQUIDITY FACILITY" means, initially, the Revolving Credit
Agreement, dated as of the date hereof, between the Subordination Agent, as
agent and trustee for the Class C Trustee, and Helaba, and, from and after the
replacement of such agreement pursuant hereto, the Replacement Liquidity
Facility therefor, if any, in each case as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"CLASS C LIQUIDITY PROVIDER" means Helaba, together with any
Replacement Liquidity Provider that has issued a Replacement Liquidity Facility
to replace the Class C Liquidity Facility pursuant to Section 3.06(c) or
3.06(e).
"CLASS C TRUST" means the Delta Air Lines Pass Through Trust 2001-1C
created and administered pursuant to the Class C Trust Agreement.
"CLASS C TRUST AGREEMENT" means the Basic Agreement, as supplemented
by Trust Supplement No. 2001-1C thereto, dated as of the date hereof, governing
the creation and administration of the Delta Air Lines Pass Through Trust
2001-1C and the issuance of the Class C Certificates, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
its terms.
"CLASS C TRUSTEE" means State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity except as
expressly set forth in the Class C Trust Agreement, but solely as trustee under
the Class C Trust Agreement, together with any successor trustee appointed
pursuant thereto.
"CLASS D CERTIFICATEHOLDER" means, at any time, any
Certificateholder of one or more Class D Certificates.
"CLASS D CERTIFICATES" means the certificates issued by the Class D
Trust, substantially in the form of Exhibit A to the Class D Trust Agreement,
and authenticated by the Class D Trustee, representing Fractional Undivided
Interests in the Class D Trust, and any certificates issued in exchange therefor
or replacement thereof pursuant to the terms of the Class D Trust Agreement.
"CLASS D TRUST" means the Delta Air Lines Pass Through Trust
2001-1D, created and administered pursuant to the Class D Trust Agreement.
"CLASS D TRUST AGREEMENT" means the Basic Agreement, as supplemented
by Trust Supplement No. 2001-1D thereto, dated as of the date hereof, governing
the creation and administration of the Delta Air Lines Pass Through Trust
2001-1D and the issuance of the Class D Certificates, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
its terms.
"CLASS D TRUSTEE" means State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity except as
expressly set forth in the Class D Trust Agreement, but solely as trustee under
the Class D Trust Agreement, together with any successor trustee appointed
pursuant thereto.
"CLOSING DATE" means September 17, 2001.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time, and Treasury Regulations promulgated thereunder.
"COLLATERAL" means, with respect to any Indenture, the "Collateral"
referred to therein.
"COLLECTION ACCOUNT" means the Eligible Deposit Account established
by the Subordination Agent pursuant to Section 2.02(a) in and from which the
Subordination Agent shall make deposits and withdrawals in accordance with this
Agreement.
"CONSENT PERIOD" has the meaning specified in Section 3.06(d).
"CONTROLLING PARTY" means the Person entitled to act as such
pursuant to the terms of Section 2.06.
"CORPORATE TRUST OFFICE" means, with respect to any Trustee, the
Subordination Agent or any Loan Trustee, the office of such Person in the city
at which, at any particular time, its corporate trust business shall be
principally administered.
"CURRENT DISTRIBUTION DATE" means a Distribution Date specified as a
reference date for calculating the Expected Distributions or the Adjusted
Expected Distributions with respect to the Certificates of any Trust as of such
Distribution Date.
"DELTA" means Delta Air Lines, Inc., a Delaware corporation, and
its successors and permitted assigns.
"DELTA BANKRUPTCY EVENT" means the occurrence and continuation of
any of the following:
(a) Delta consents to the appointment of or the taking of possession
by a receiver, trustee or liquidator of itself or of a substantial part of
its property, admits in writing its inability to pay its debts generally
as they come due or makes a general assignment for the benefit of
creditors;
(b) Delta files a voluntary petition in bankruptcy or a voluntary
petition or an answer seeking reorganization, liquidation or other relief
as a debtor in a case under any bankruptcy laws or insolvency laws (as in
effect at such time) or an answer admitting the material allegations of a
petition filed against Delta as a debtor in any such case, or Delta seeks
relief as a debtor by voluntary petition, answer or consent, under the
provisions of any other bankruptcy or other similar law providing for the
reorganization or winding-up of corporations (as in effect at such time),
or Delta seeks an agreement, composition, extension or adjustment with its
creditors under such laws; or
(c) an order, judgment or decree is entered by any court of
competent jurisdiction appointing, without the consent of Delta , a
receiver, trustee or liquidator of Delta or sequestering any substantial
part of its property, or granting any other relief in respect of Delta as
a debtor under any bankruptcy laws or insolvency laws (as in effect at
such time), and any such order, judgment or decree of appointment or
sequestration remains in force undismissed, unstayed and unvacated for a
period of 90 days after the date of entry thereof; or
(d) a petition against Delta as a debtor in a case under the federal
bankruptcy laws or other insolvency laws (as in effect at such time) is
filed and not withdrawn or dismissed within 90 days thereafter, or if,
under the provisions of any law providing for reorganization or winding-up
of corporations that applies to Delta , any court of competent
jurisdiction assumes jurisdiction, custody or control of Delta or of any
substantial part of its property and such jurisdiction, custody or control
remains in force unrelinquished, unstayed and unterminated for a period of
90 days.
"DELTA PROVISIONS" has the meaning specified in Section 8.01(a).
"DESIGNATED REPRESENTATIVES" means the Subordination Agent
Representatives, the Trustee Representatives and the LP Representatives
identified under Section 2.05.
"DISTRIBUTION DATE" means a Regular Distribution Date or a Special
Distribution Date.
"DOLLARS" means the lawful currency of the United States.
"DOWNGRADE DRAWING" has the meaning specified in Section 3.06(c).
"DOWNGRADE EVENT" has the meaning specified in each Liquidity
Facility.
"DOWNGRADED FACILITY" has the meaning specified in Section 3.06(c).
"DRAWING" means an Interest Drawing, a Final Drawing, a
Non-Extension Drawing or a Downgrade Drawing, as the case may be.
"ELIGIBLE DEPOSIT ACCOUNT" means either (a) a segregated account
with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the laws
of the United States or any one of the states thereof or the District of
Columbia (or any United States branch of a foreign bank), having corporate trust
powers and acting as trustee for funds deposited in such account, so long as any
of the securities of such depository institution has a long-term unsecured debt
rating of at least A3 or its equivalent by Moody's or at least A- or its
equivalent by S&P. An Eligible Deposit Account may be maintained with the
Subordination Agent or Liquidity Provider so long as the Subordination Agent or
such Liquidity Provider is an Eligible Institution; provided that the
Subordination Agent, in its individual capacity, or such Liquidity Provider
shall have waived all rights of set-off and counterclaim with respect to such
account.
"ELIGIBLE INSTITUTION" means (a) the corporate trust department of
the Subordination Agent or any Trustee, as applicable, or (b) a depository
institution organized under the laws of the United States of America or any
state thereof or the District of Columbia (or any U.S. branch of a foreign
bank), which has a long-term unsecured debt rating of at least A3 or its
equivalent by Moody's or at least A- or its equivalent by S&P.
"ELIGIBLE INVESTMENTS" means investments in (a) obligations of the
United States government or agencies thereof, or obligations guaranteed by the
United States government, (b) open market commercial paper of any corporation
incorporated under the laws of the United States or any state thereof rated at
least P-1 or its equivalent by Moody's or at least A-1 or its equivalent by S&P,
(c) certificates of deposit issued by commercial banks organized under the laws
of the United States or of any political subdivision thereof (or any United
States branch of a foreign bank) having a combined capital and surplus in excess
of $500,000,000 which banks or their holding companies have a rating of A or its
equivalent by Moody's or A or its equivalent by S&P; provided, however, that the
aggregate amount at any one time invested in certificates of deposit issued by
any one bank shall not be in excess of 5% of such bank's capital and surplus,
(d) Dollar denominated offshore certificates of deposit issued by, or offshore
time deposits with, any commercial bank described in (c) or any subsidiary
thereof, and (e) repurchase agreements with any financial institution having
combined capital and surplus of at least $500,000,000 with any of the
obligations described in clauses (a) through (d) as collateral. If none of the
above investments is available, the entire amounts to be invested may be used to
purchase Federal funds from an entity described in clause (c). All Eligible
Investments must be held in an Eligible Deposit Account. Any of the investments
described herein may be made through or with, as applicable, the bank acting as
Trustee or its Affiliates.
"EQUIPMENT NOTES" means, at any time, the Series A-1 Equipment
Notes, the Series A-2 Equipment Notes, the Series B Equipment Notes, the Series
C Equipment Notes and the Series D Equipment Notes, collectively, and in each
case, any Equipment Notes issued in exchange therefor or replacement thereof
pursuant to the terms of the Indentures.
"EXPECTED DISTRIBUTIONS" means, with respect to the Certificates of
any Trust on any Current Distribution Date, the sum of (x) accrued and unpaid
interest in respect of such Certificates and (y) the difference between (A) the
Pool Balance of such Certificates as of the immediately preceding Distribution
Date (or, if the Current Distribution Date is the first Distribution Date, the
original aggregate face amount of the Certificates of such Trust) and (B) the
Pool Balance of such Certificates as of the Current Distribution Date calculated
on the basis that (i) the principal of the Equipment Notes held in such Trust
has been paid when due (whether at stated maturity or upon redemption,
prepayment, purchase or Acceleration or otherwise) and such payments have been
distributed to the holders of such Certificates and (ii) the principal of any
Equipment Notes formerly held in such Trust that have been sold pursuant to the
terms hereof has been paid in full and such payments have been distributed to
the holders of such Certificates.
For purposes of calculating Expected Distributions with respect to
the Certificates of any Trust, any premium paid on the Equipment Notes held in
such Trust which has not been distributed to the Certificateholders of such
Trust (other than such premium or a portion thereof applied to distributions of
interest on the Certificates of such Trust or the reduction of the Pool Balance
of such Trust) shall be added to the amount of such Expected Distributions.
"EXPIRY DATE" with respect to any Liquidity Facility, has the
meaning specified in such Liquidity Facility.
"FEE LETTER" means the Fee Letter among Helaba, the Subordination
Agent and Delta with respect to the Liquidity Facilities and any fee letter
entered into among the Subordination Agent, Delta and any Replacement Liquidity
Provider.
"FINAL DISTRIBUTIONS" means, with respect to the Certificates of any
Trust on any Distribution Date, the sum of (x) the aggregate amount of all
accrued and unpaid interest in respect of such Certificates and (y) the Pool
Balance of such Certificates as of the immediately preceding Distribution Date.
For purposes of calculating Final Distributions with respect to the Certificates
of any Trust, any premium paid on the Equipment Notes held in such Trust which
has not been distributed to the Certificateholders of such Trust (other than
such premium or a portion thereof applied to distributions of interest on the
Certificates of such Trust or the reduction of the Pool Balance of such Trust)
shall be added to the amount of such Final Distributions.
"FINAL DRAWING" has the meaning specified in Section 3.06(i).
"FINAL LEGAL DISTRIBUTION DATE" means (i) with respect to the Class
A-1 Certificates, September 18, 2012, (ii) with respect to the Class A-2
Certificates, Xxxxx 00, 0000, (xxx) with respect to the Class B Certificates,
March 18, 2013, (iv) with respect to the Class C Certificates, March 18, 2008
and (v) with respect to the Class D Certificates, September 18, 2006.
"FRACTIONAL UNDIVIDED INTEREST" means the fractional undivided
interest in a Trust that is represented by a Certificate relating to such Trust.
"HELABA" has the meaning specified in the preamble.
"INDENTURE" means each of the Indenture and Security Agreements
entered into by the Loan Trustee and Delta pursuant to the Participation
Agreements, in each case as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"INDENTURE EVENT OF DEFAULT" means, with respect to any Indenture,
any Event of Default (as such term is defined in such Indenture) thereunder.
"INITIAL CLASS D HOLDER" means Delta Class D Certificate Trust, a
Delaware business trust organized pursuant to the Business Trust Agreement, as
the sole initial purchaser and holder of the Class D Certificates.
"INTEREST DRAWING" has the meaning specified in Section 3.06(a).
"INTEREST PAYMENT DATE" means, with respect to any Liquidity
Facility, each date on which interest is due and payable under Section 3.07(c),
(d) or (e) of such Liquidity Facility on a Downgrade Drawing, Non-Extension
Drawing or Final Drawing thereunder.
"INVESTMENT EARNINGS" means investment earnings on funds on deposit
in the Trust Accounts net of losses and the Subordination Agent's reasonable
expenses in making such investments.
"LENDING OFFICE" has the meaning, with respect to any Liquidity
Facility, ascribed to such term in such Liquidity Facility.
"LIEN" means any mortgage, pledge, lien, charge, claim, encumbrance,
lease, sublease or security interest of any kind.
"LIQUIDITY EVENT OF DEFAULT", with respect to any Liquidity
Facility, has the meaning specified in such Liquidity Facility.
"LIQUIDITY EXPENSES" means all Liquidity Obligations other than (i)
the principal amount of any Drawings under the Liquidity Facilities and (ii) any
interest accrued on any Liquidity Obligations.
"LIQUIDITY FACILITY" means, at any time, the Class A-1 Liquidity
Facility, the Class A-2 Liquidity Facility, the Class B Liquidity Facility or
the Class C Liquidity Facility, as applicable.
"LIQUIDITY OBLIGATIONS" means all principal, interest, fees and
other amounts owing to the Liquidity Providers under the Liquidity Facilities,
Section 4.02 of the Participation Agreements or the Fee Letter.
"LIQUIDITY PROVIDER" means, at any time, the Class A-1 Liquidity
Provider, the Class A-2 Liquidity Provider, the Class B Liquidity Provider or
the Class C Liquidity Provider, as applicable.
"LOAN TRUSTEE" means, with respect to any Indenture, the bank, trust
company or other financial institution designated as loan trustee thereunder,
and any successor to such loan trustee.
"LP INCUMBENCY CERTIFICATE" has the meaning specified in Section
2.05(c).
"LP REPRESENTATIVES" has the meaning specified in Section 2.05(c).
"LTV APPRAISALS" has the meaning specified in Section 4.01(a).
"LTV COLLATERAL AMOUNT" of any Aircraft for any Class of
Certificates means, as of any Distribution Date, the lesser of (i)(x) with
respect to any Aircraft other than an Aircraft referred to in the following
clauses (y) and (z), the LTV Ratio for such Class of Certificates multiplied by
the Appraised Current Market Value of such Aircraft or (y) with respect to any
such Aircraft that has suffered an Event of Loss under and as defined in the
relevant Indenture, the amount of the insurance proceeds paid to the related
Loan Trustee in respect thereof to the extent then held by such Loan Trustee
(and/or on deposit in the Special Payments Account) or payable to such Loan
Trustee in respect thereof or (z) with respect to any such Aircraft that has
been released from the applicable Indenture pursuant to the provisions of
Section 10.01(b) thereof, the amount of money and U.S. Government Obligations
deposited with the Loan Trustee pursuant thereto as of such Distribution Date
and (ii) the outstanding principal amount of the Equipment Notes secured by such
Aircraft after giving effect to any principal payments of such Equipment Notes
on or before such Distribution Date.
"LTV RATIO" means (i) for the Class A-1 Certificates, 46.0%, (ii)
for the Class A-2 Certificates, 46.0%, (iii) for the Class B Certificates,
60.0%, (iv) for the Class C Certificates, 66.0% and (v) for the Class D
Certificates, 75.0%.
"MINIMUM SALE PRICE" means, with respect to any Aircraft or the
Equipment Notes issued in respect of such Aircraft, at any time, the lesser of
(a) 75% of the Appraised Current Market Value of such Aircraft and (b) the
aggregate outstanding principal amount of such Equipment Notes, plus accrued and
unpaid interest thereon.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"NON-CONTROLLING PARTY" means, at any time, any Trustee or Liquidity
Provider which is not the Controlling Party at such time.
"NON-EXTENDED FACILITY" has the meaning specified in Section
3.06(d).
"NON-EXTENSION DRAWING" has the meaning specified in Section
3.06(d).
"NON-PERFORMING EQUIPMENT NOTE" means an Equipment Note issued
pursuant to an Indenture that is not a Performing Equipment Note.
"OFFICER'S CERTIFICATE" of any Person means a certification signed
by a Responsible Officer of such Person.
"OPERATIVE AGREEMENTS" means this Agreement, the Liquidity
Facilities, the Business Trust Agreement, the Fee Letter, the Indentures, the
Trust Agreements, the Participation Agreements, the Equipment Notes and the
Certificates, together with all exhibits and schedules included with any of the
foregoing.
"OUTSTANDING" means, when used with respect to each Class of
Certificates, as of the date of determination, all Certificates of such Class
theretofore authenticated and delivered under the related Trust Agreement,
except:
(i) Certificates of such Class theretofore canceled by the Registrar
(as defined in such Trust Agreement) or delivered to the Trustee
thereunder or such Registrar for cancellation;
(ii) all of the Certificates of such Class if money in the full
amount required to make the final distribution with respect to such Class
pursuant to Section 11.01 of such Trust Agreement has been theretofore
deposited with the related Trustee in trust for the Certificateholders of
such Certificates as provided in Section 4.01 of such Trust Agreement,
pending distribution of such money to such Certificateholders pursuant to
payment of such final distribution payment; and
(iii) Certificates of such Class in exchange for or in lieu of which
other Certificates of such Class have been authenticated and delivered
pursuant to such Trust Agreement;
provided, however, that in determining whether the holders of the requisite
Fractional Undivided Interest of such Certificates have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, any
Certificates owned by Delta or any of its Affiliates shall be disregarded and
deemed not to be Outstanding. In determining whether such Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Certificates that such Trustee knows to be so
owned shall be so disregarded. Notwithstanding the foregoing, (x) if Delta and
its Affiliates own 100% of the Certificates of each Class, such Certificates
shall not be so disregarded and (y) if any amount of such Certificates owned by
Delta and its Affiliates have been pledged in good faith, such Certificates
shall not be disregarded if the pledgee establishes to the satisfaction of the
applicable Trustee the pledgee's right so to act with respect to such
Certificates and that the pledgee is not Delta or any of its Affiliates.
"OVERDUE SCHEDULED PAYMENT" means any Scheduled Payment which is not
in fact received by the Subordination Agent within five days after the Scheduled
Payment Date relating thereto.
"PARTICIPATION AGREEMENT" means, with respect to each Indenture, the
"Participation Agreement" referred to therein, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
"PAYEES" has the meaning specified in Section 2.03(c).
"PERFORMING EQUIPMENT NOTE" means an Equipment Note issued pursuant
to an Indenture with respect to which no payment default has occurred and is
continuing (without giving effect to any Acceleration); provided, that in the
event of a bankruptcy proceeding in which Delta is a debtor under Title 11 of
the United States Code (the "Bankruptcy Code"), (i) any payment default
occurring before the date of the order for relief for such proceeding shall not
be taken into consideration during the 60-day period under Section 1110(a)(2)(A)
of the Bankruptcy Code (or such longer period as may apply under Section 1110(b)
of the Bankruptcy Code) (the "Section 1110 period"), (ii) any payment default
occurring after the date of the order for relief in such proceeding shall not be
taken into consideration if such payment default is cured under Section
1110(a)(2)(B) of the Bankruptcy Code before the later of 30 days after the date
of such default or the expiration of the Section 1110 Period and (iii) any
payment default occurring after the Section 1110 Period will not be taken into
consideration if such payment default is cured before the end of the grace
period, if any, set forth in the related Indenture.
"PERFORMING NOTE DEFICIENCY" means any time that less than 65% of
the then aggregate outstanding principal amount of all Equipment Notes are
Performing Equipment Notes.
"PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
trustee, unincorporated organization or government or any agency or political
subdivision thereof.
"POOL BALANCE" means, with respect to the Certificates of any Class,
as of any date, (i) the original aggregate face amount of the Certificates of
such Class less (ii) the aggregate amount of all distributions made in respect
of such Certificates other than distributions made in respect of interest or
premium or reimbursement of any costs or expenses incurred in connection
therewith. The Pool Balance as of any Distribution Date with respect to each
Class 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 date.
"PROCEEDING" means any suit in equity, action at law or other
judicial or administrative proceeding.
"PTC EVENT OF DEFAULT" means, with respect to each Trust Agreement,
the failure to distribute within 10 Business Days after the applicable
Distribution Date: (i) the outstanding Pool Balance of the applicable Class of
Certificates on the Final Legal Distribution Date for such Class or (ii)
interest scheduled for distribution on such Certificates on any Distribution
Date (unless the Subordination Agent shall have made an Interest Drawing, or a
withdrawal from the Cash Collateral Account, with respect thereto in an
aggregate amount sufficient to pay such interest and shall have distributed such
amount to the Trustee entitled thereto).
"RATING AGENCIES" means, collectively, at any time, each of two
nationally recognized rating agencies that have been requested to rate the
Certificates and that are then rating the Certificates. The initial Rating
Agencies will be Moody's and S&P.
"RATINGS CONFIRMATION" means, with respect to any action proposed to
be taken, a written confirmation from each of the Rating Agencies that such
action would not result in (i) a reduction of the rating for any Class of
Certificates below the then current rating for such Class of Certificates or
(ii) a withdrawal or suspension of the rating of any Class of Certificates.
"REGISTER", with respect to any Trust, has the meaning ascribed to
such term in the Trust Agreement for such Trust.
"REGULAR DISTRIBUTION DATES" means each March 18 and September 18,
commencing on March 18, 2002; provided, however, that, if any such day shall not
be a Business Day, the related distribution shall be made on the next succeeding
Business Day without additional interest.
"REPLACEMENT LIQUIDITY FACILITY" means, for any Liquidity Facility,
an irrevocable revolving credit agreement (or agreements) in substantially the
form of the replaced Liquidity Facility, including reinstatement provisions, or
in such other form (which may include a letter of credit, surety bond, financial
insurance policy or guaranty) as shall permit the Rating Agencies to confirm in
writing their respective ratings then in effect for the Certificates of the
Class with respect to which such Liquidity Facility was issued (before
downgrading of such ratings, if any, as a result of the downgrading, if any, of
the applicable Liquidity Provider), in a face amount (or in an aggregate face
amount) equal to the applicable Required Amount and issued by a Person (or
Persons) having short-term unsecured debt ratings issued by both Rating Agencies
that are equal to or higher than the Threshold Rating specified in clause (a) of
the definition of Threshold Rating or if such Person (or Persons) does not have
a short-term unsecured debt rating from a given Rating Agency, a long-term
unsecured debt rating issued by such Rating Agency that is equal to or higher
than the Threshold Rating specified in clause (b) of the definition of Threshold
Rating. Without limitation of the form that a Replacement Liquidity Facility
otherwise may have pursuant to the preceding sentence, a Replacement Liquidity
Facility for any Class of Certificates may have a stated expiration date earlier
than 15 days after the Final Legal Distribution Date of such Class of
Certificates so long as such Replacement Liquidity Facility provides for a
Non-Extension Drawing as contemplated by Section 3.06(d) hereof.
"REPLACEMENT LIQUIDITY PROVIDER" means a Person who issues a
Replacement Liquidity Facility.
"REQUIRED AMOUNT" means, with respect to each Liquidity Facility, or
the Cash Collateral Account, for any Class, for any day, the sum of the
aggregate amount of interest, calculated at the rate per annum equal to the
Stated Interest Rate for the related Class of Certificates on the basis of a
360-day year comprised of twelve 30-day months, that would be distributable on
such Class of Certificates on each of the three successive Regular Distribution
Dates immediately following such day or, if such day is a Regular Distribution
Date, on such day and the succeeding two Regular Distribution Dates, in each
case calculated on the basis of the Pool Balance of such Class of Certificates
on such date and without regard to expected future distributions of principal on
such Class of Certificates.
"RESPONSIBLE OFFICER" means (i) with respect to the Subordination
Agent and each of the Trustees, any officer in the Corporate Trust Department or
similar department of the Subordination Agent or such Trustee, as the case may
be, or any other officer customarily performing functions similar to those
performed by the persons who at the time shall be such officers or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with a particular subject, and (ii) with respect to each Liquidity Provider, any
authorized officer of such Liquidity Provider.
"SCHEDULED PAYMENT" means, with respect to any Equipment Note, (i)
any payment of principal or interest on such Equipment Note (other than an
Overdue Scheduled Payment) or (ii) any distribution in respect of interest on
such Equipment Note to the Certificateholders of Certificates of the
corresponding Class of Certificates with funds drawn under the Liquidity
Facility for such Class or withdrawn from the Cash Collateral Account for such
Class, which payment in the case of clause (i) or clause (ii) represents an
installment of principal on such Equipment Note at the stated maturity of such
installment, or the payment of regularly scheduled interest accrued on the
unpaid principal amount of such Equipment Note, or both; provided, however, that
any payment of principal, premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute a Scheduled
Payment.
"SCHEDULED PAYMENT DATE" means, with respect to any Scheduled
Payment, the date on which such Scheduled Payment is scheduled to be made.
"SERIES A-1 EQUIPMENT NOTES" means the Series A-1 Equipment Notes
issued pursuant to each Indenture by Delta and authenticated by the Loan Trustee
thereunder, and any such Equipment Notes issued in exchange therefor or
replacement thereof pursuant to the terms of such Indenture.
"SERIES A-2 EQUIPMENT NOTES" means the Series A-2 Equipment Notes
issued pursuant to each Indenture by Delta and authenticated by the Loan Trustee
thereunder, and any such Equipment Notes issued in exchange therefor or
replacement thereof pursuant to the terms of such Indenture.
"SERIES B EQUIPMENT NOTES" means the Series B Equipment Notes issued
pursuant to each Indenture by Delta and authenticated by the Loan Trustee
thereunder, and any such Equipment Notes issued in exchange therefor or
replacement thereof pursuant to the terms of such Indenture.
"SERIES C EQUIPMENT NOTES" means the Series C Equipment Notes issued
pursuant to each Indenture by Delta and authenticated by the Loan Trustee
thereunder, and any such Equipment Notes issued in exchange therefor or
replacement thereof pursuant to the terms of such Indenture.
"SERIES D EQUIPMENT NOTES" means the Series D Equipment Notes issued
pursuant to each Indenture by Delta and authenticated by the Loan Trustee
thereunder, and any such Equipment Notes issued in exchange therefor or
replacement thereof pursuant to the terms of such Indenture.
"SPECIAL DISTRIBUTION DATE" means, with respect to any Special
Payment, the Business Day chosen by the Subordination Agent pursuant to Section
2.04(a) for the distribution of such Special Payment in accordance with this
Agreement.
"SPECIAL PAYMENT" means any payment (other than a Scheduled Payment
or a distribution referred to in Section 2.03(c)) in respect of, or any proceeds
of, any Equipment Note or Collateral (as defined in each Indenture).
"SPECIAL PAYMENTS ACCOUNT" means the Eligible Deposit Account
created pursuant to Section 2.02(a) as a sub-account to the Collection Account.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"STATE STREET" has the meaning specified in the introductory
paragraph to this Agreement.
"STATED AMOUNT" with respect to any Liquidity Facility, means the
Maximum Commitment (as defined in such Liquidity Facility) of the applicable
Liquidity Provider thereunder.
"STATED EXPIRATION DATE" has the meaning specified in Section
3.06(d).
"STATED INTEREST RATE" means (i) with respect to the Class A-1
Certificates, 6.619% per annum, (ii) with respect to the Class A-2 Certificates,
7.111% per annum, (iii), with respect to the Class B Certificates, 7.711% per
annum, (iv) with respect to the Class C Certificates, 7.299% per annum and (v)
with respect to the Class D Certificates 6.950% per annum.
"SUBORDINATION AGENT" has the meaning specified in the introductory
paragraph to this Agreement.
"SUBORDINATION AGENT INCUMBENCY CERTIFICATE" has the meaning
specified in Section 2.05(a).
"SUBORDINATION AGENT REPRESENTATIVES" has the meaning specified in
Section 2.05(a).
"TAX" and "TAXES" means all governmental fees (including, without
limitation, license, filing and registration fees) and all taxes (including,
without limitation, franchise, excise, stamp, value added, income, gross
receipts, sales, use and property taxes), withholdings, assessments, levies,
imposts, duties or charges, of any nature whatsoever, together with any related
penalties, fines, additions to tax or interest thereon imposed, withheld, levied
or assessed by any country, taxing authority or governmental subdivision thereof
or therein or by any international authority, including any taxes imposed on any
Person as a result of such Person being required to collect and pay over
withholding taxes.
"TERMINATION NOTICE" with respect to any Liquidity Facility has the
meaning specified in such Liquidity Facility.
"THRESHOLD RATING" means (a) with respect to the Class A-1 Liquidity
Provider, the Class A-2 Liquidity Provider and the Class B Liquidity Provider, a
short-term unsecured debt rating of P-1 in the case of Moody's and A-1+ in the
case of S&P, and with respect to the Class C Liquidity Provider, a short-term
unsecured debt rating of P-1 in the case of Moody's and A-1 in the case of S&P
and (b) in the case of any Person who does not have a short-term unsecured debt
rating from either or both of such Rating Agencies, then in lieu of such
short-term unsecured debt rating from such Rating Agency or Rating Agencies,
with respect to the Class A-1 Liquidity Provider, the Class A-2 Liquidity
Provider and the Class B Liquidity Provider, a long-term unsecured debt rating
of A1 in the case of Moody's and AA- in the case of S&P, and with respect to the
Class C Liquidity Provider, a long-term unsecured debt rating of A1 in the case
of Moody's and A in the case of S&P.
"TREASURY REGULATIONS" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"TRIGGERING EVENT" means (x) the occurrence of an Indenture Event of
Default under all of the Indentures resulting in a PTC Event of Default with
respect to the most senior Class of Certificates then Outstanding, (y) the
Acceleration of all of the outstanding Equipment Notes or (z) the occurrence of
a Delta Bankruptcy Event.
"TRUST" means any of the Class A-1 Trust, the Class A-2 Trust, the
Class B Trust, the Class C Trust or the Class D Trust.
"TRUST ACCOUNTS" has the meaning specified in Section 2.02(a).
"TRUST AGREEMENT" means any of the Class A-1 Trust Agreement, the
Class A-2 Trust Agreement, the Class B Trust Agreement, the Class C Trust
Agreement or the Class D Trust Agreement.
"TRUST PROPERTY", with respect to any Trust, has the meaning
specified in the Trust Agreement for such Trust.
"TRUST SUPPLEMENT" means an agreement supplemental to the Basic
Agreement pursuant to which (i) a separate trust is created for the benefit of
the holders of Certificates of a series, (ii) the issuance of the Certificates
of a series representing fractional undivided interests in such trust is
authorized and (iii) the terms of the Certificates of such series are
established, as such agreement may from time to time be supplemented, amended or
otherwise modified.
"TRUSTEE" means any of the Class A-1 Trustee, the Class A-2 Trustee,
the Class B Trustee, the Class C Trustee or the Class D Trustee.
"TRUSTEE INCUMBENCY CERTIFICATE" has the meaning specified in
Section 2.05(b).
"TRUSTEE REPRESENTATIVES" has the meaning specified in Section
2.05(b).
"UNDERWRITERS" means the several underwriters listed as such in the
Underwriting Agreement.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement, dated
September 6, 2001, among the Underwriters and Delta, relating to the purchase of
the Certificates by the Underwriters, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
"UNITED STATES" means the United States of America.
"WRITTEN NOTICE" means, from the Subordination Agent, any Trustee or
Liquidity Provider, a written instrument executed by the Designated
Representative of such Person. An invoice delivered by a Liquidity Provider
pursuant to Section 3.01 in accordance with its normal invoicing procedures
shall constitute Written Notice under such Section.
ARTICLE II
TRUST ACCOUNTS; CONTROLLING PARTY
Section 2.01. Agreement to Terms of Subordination; Payments from
Monies Received Only. (a) Each Trustee hereby acknowledges and agrees to the
terms of subordination set forth in this Agreement in respect of each Class of
Certificates and agrees to enforce such provisions and cause all payments in
respect of the Equipment Notes and the Liquidity Facilities to be applied in
accordance with the terms of this Agreement. In addition, each Trustee hereby
agrees to cause the Equipment Notes purchased by the related Trust to be
registered in the name of the Subordination Agent or its nominee, as agent and
trustee for such Trustee, to be held in trust by the Subordination Agent solely
for the purpose of facilitating the enforcement of the subordination and other
provisions of this Agreement.
(b) Except as otherwise expressly provided in the next succeeding
sentence of this Section 2.01(b), all payments to be made by the Subordination
Agent hereunder shall be made only from amounts received by it that constitute
Scheduled Payments, Special Payments and other payments under the Operative
Agreements, including payments under Section 4.02 of the Participation
Agreements and Section 2.14 of the Indentures, and only to the extent that the
Subordination Agent shall have received sufficient income or proceeds therefrom
to enable it to make such payments in accordance with the terms hereof. Each of
the Trustees and the Subordination Agent hereby agrees and each
Certificateholder, by its acceptance of a Certificate, and each Liquidity
Provider, by entering into the Liquidity Facility to which it is a party, has
agreed to look solely to such amounts to the extent available for distribution
to it as provided in this Agreement or the applicable Trust Agreement, as the
case may be, and that none of the Trustees, Loan Trustees or the Subordination
Agent is personally liable to any of them for any amounts payable or any
liability under this Agreement, any Trust Agreement, any Liquidity Facility or
such Certificate, except (in the case of the Subordination Agent) as expressly
provided herein or (in the case of the Trustees) as expressly provided herein
and in each Trust Agreement or (in the case of the Loan Trustees) as expressly
provided in any Operative Agreement.
Notwithstanding anything to the contrary in this Agreement and in
the other Operative Agreements, the Certificates do not represent indebtedness
of the related Trust, and references in this Agreement and the Operative
Agreements to accrued interest or principal amounts payable on the Certificates
of any Class are included only for computational purposes. For purposes of such
computations, the Certificates of any Class shall be deemed to be comprised of
interest and principal components, with the principal component deemed to be the
Pool Balance, and the interest component deemed to equal interest accruing at
the Stated Interest Rate for such Class of Certificates from (i) the later of
(1) the date of the issuance thereof and (2) the most recent but preceding
Distribution Date to which such interest was distributed to (ii) the applicable
date of determination, such interest to be considered payable in arrears and to
be calculated on the basis of a 360-day year comprised of twelve 30-day months.
Section 2.02. Trust Accounts. (a) Upon the execution of this
Agreement, the Subordination Agent shall establish and maintain in its name (i)
the Collection Account as an Eligible Deposit Account, bearing a designation
clearly indicating that the funds deposited therein are held in trust for the
benefit of the Trustees, the Certificateholders and the Liquidity Providers, and
(ii) as a sub-account in the Collection Account, the Special Payments Account as
an Eligible Deposit Account, bearing a designation clearly indicating that the
funds deposited therein are held in trust for the benefit of the Trustees, the
Certificateholders and the Liquidity Providers. The Subordination Agent shall
establish and maintain the Cash Collateral Accounts pursuant to and under the
circumstances set forth in Section 3.06(f). Upon such establishment and
maintenance under Section 3.06(f), the Cash Collateral Accounts shall, together
with the Collection Account, constitute the "Trust Accounts" hereunder.
(b) Funds on deposit in the Trust Accounts shall be invested and
reinvested by the Subordination Agent in Eligible Investments selected by Delta
or its designated representative if such investments are reasonably available
and have maturities no later than the earlier of (i) 90 days following the date
of such investment and (ii) the Business Day immediately preceding the Regular
Distribution Date or the date of the related distribution pursuant to Section
2.04, as the case may be, next following the date of such investment; provided,
however, that, following the making of a Non-Extension Drawing under any
Liquidity Facility, the Subordination Agent shall invest and reinvest the
amounts in the applicable Cash Collateral Account in Eligible Investments
pursuant to the written instructions of the Liquidity Provider funding such
Drawing, and provided further, however, that upon the occurrence and during the
continuation of a Triggering Event, the Subordination Agent shall invest and
reinvest such amounts (other than amounts in the Cash Collateral Accounts as a
result of a Non-Extension Drawing, which shall be governed by the foregoing
proviso) in Eligible Investments in accordance with the written instructions of
the Controlling Party. Unless otherwise expressly provided in this Agreement
(including, without limitation, with respect to Investment Earnings on amounts
on deposit in the Cash Collateral Accounts, Section 3.06(f)), any Investment
Earnings shall be deposited in the Collection Account when received by the
Subordination Agent and shall be applied by the Subordination Agent in the same
manner as the other amounts on deposit in the Collection Account are to be
applied. The Subordination Agent's reasonable fees and expenses actually
incurred in making such investments and any losses incurred in such investments
shall be charged against the principal amount invested. The Subordination Agent
shall not be liable for any loss resulting from any investment, reinvestment or
liquidation required to be made under this Agreement other than by reason of its
willful misconduct or negligence. Eligible Investments and any other investment
required to be made hereunder shall be held to their maturities except that any
such investment may be sold (without regard to its maturity) by the
Subordination Agent without instructions whenever such sale is necessary to make
a distribution required under this Agreement. Uninvested funds held hereunder
shall not earn or accrue interest.
(c) The Subordination Agent shall possess all right, title and
interest in all funds on deposit from time to time in the Trust Accounts and in
all proceeds thereof (including all income thereon, except as otherwise
expressly provided herein with respect to Investment Earnings). The Trust
Accounts shall be held in trust by the Subordination Agent under the sole
dominion and control of the Subordination Agent for the benefit of the Trustees,
the Certificateholders and the Liquidity Providers, as the case may be. If, at
any time, any of the Trust Accounts ceases to be an Eligible Deposit Account,
the Subordination Agent shall within 10 Business Days (or such longer period,
not to exceed 30 calendar days, to which each Rating Agency may consent)
establish a new Collection Account, Special Payments Account or Cash Collateral
Account, as the case may be, as an Eligible Deposit Account and shall transfer
any cash and/or any investments to such new Collection Account, Special Payments
Account or Cash Collateral Account, as the case may be. So long as the
Subordination Agent is an Eligible Institution, the Trust Accounts shall be
maintained with it as Eligible Deposit Accounts.
Section 2.03. Deposits to the Collection Account and Special
Payments Account; Certain Distributions. (a) The Subordination Agent shall, on
each day when one or more Scheduled Payments are made to the Subordination Agent
as holder of the Equipment Notes, deposit in the Collection Account the
aggregate amount of such Scheduled Payments.
(b) The Subordination Agent shall, on each day when one or more
Special Payments are made to the Subordination Agent as holder of the Equipment
Notes, deposit in the Special Payments Account the aggregate amount of such
Special Payments.
(c) In the event that a Loan Trustee distributes to the
Subordination Agent pursuant to Section 3.04 or clause "first" of Section 3.03
of any Indenture any amounts payable under clauses (b), (c) or (d) of Section
2.14 of any Indenture, the Subordination Agent shall promptly deposit such
amounts in the Collection Account. The Subordination Agent will distribute
promptly upon receipt thereof (or in the case of any such payment, compensation
or reimbursement in respect of the Subordination Agent, will retain) (i) any
indemnity payment received by it from Delta in respect of any Trustee, the
Subordination Agent or any Liquidity Provider (collectively, the "Payees") and
(ii) any compensation or reimbursement received by it from Delta or the Loan
Trustee under any Operative Agreement in respect of any Payee (including,
without limitation, any fees payable to any Liquidity Provider under Section
2.03 of any Liquidity Facility or other amounts referred to in clauses (a), (c)
or (d) of Section 2.14 of any Indenture), in any such case directly to the Payee
entitled thereto, provided that if such Payee has previously received from the
Collection Account such payment, compensation or reimbursement, then the
Subordination Agent shall deposit such amount in the Collection Account.
Section 2.04. Distributions of Special Payments. (a) Notice of
Special Payment. Upon receipt by the Subordination Agent, as registered holder
of the Equipment Notes, of any notice of a Special Payment (or, in the absence
of any such notice, upon receipt by the Subordination Agent of a Special
Payment), the Subordination Agent shall promptly give notice thereof to each
Trustee and the Liquidity Providers. The Subordination Agent shall promptly
calculate the amount of the prepayment (including upon Acceleration), redemption
or purchase of Equipment Notes or the amount of any Overdue Scheduled Payment,
as the case may be, comprising such Special Payment under the applicable
Indenture or Indentures and shall promptly send to each Trustee a Written Notice
of such amount and the amount allocable to each Trust. Such Written Notice shall
also set the distribution date for such Special Payment (a "Special Distribution
Date"), which shall be the first Business Day that follows the later to occur of
(x) the 15th day after the date of such Written Notice or (y) the date the
Subordination Agent has received or expects to receive such Special Payment.
Amounts on deposit in the Special Payments Account shall be distributed in
accordance with Sections 2.04(b) and 2.04(c) hereof, as applicable.
(b) Redemptions, Purchases and Prepayments of Equipment Notes. (i)
So long as no Triggering Event shall have occurred (whether or not continuing),
the Subordination Agent shall make distributions pursuant to this Section
2.04(b) of amounts on deposit in the Special Payments Account on account of the
redemption, purchase (including, without limitation, a purchase resulting from a
sale of the Equipment Notes permitted by Article IV) or prepayment (including
upon Acceleration) of all of the Equipment Notes issued pursuant to an Indenture
on the Special Distribution Date for such Special Payment in the following order
of priority:
first, such amount as shall be required to pay (A) all accrued
and unpaid Liquidity Expenses then in arrears plus (B) the product
of (x) the aggregate amount of all accrued and unpaid Liquidity
Expenses not in arrears to such Special Distribution Date multiplied
by (y) a fraction, the numerator of which is the aggregate
outstanding principal amount of Equipment Notes being redeemed,
purchased or prepaid on such Special Distribution Date and the
denominator of which is the aggregate outstanding principal amount
of all Equipment Notes, shall be distributed to the Liquidity
Providers pro rata on the basis of the amount of Liquidity Expenses
owed to each Liquidity Provider;
second, such amount as shall be required to pay (A) all
accrued and unpaid interest (including interest accrued and unpaid
on any Interest Drawing or any Applied Provider Advance (as defined
in any Liquidity Facility)) then in arrears on all Liquidity
Obligations plus (B) the product of (x) the aggregate amount of all
accrued and unpaid interest on all Liquidity Obligations not in
arrears to such Special Distribution Date (at the rate provided in
the applicable Liquidity Facility) multiplied by (y) a fraction, the
numerator of which is the aggregate outstanding principal amount of
Equipment Notes being redeemed, purchased or prepaid on such Special
Distribution Date and the denominator of which is the aggregate
outstanding principal amount of all Equipment Notes, shall be
distributed to the Liquidity Providers pro rata on the basis of the
amount of accrued and unpaid interest owed to each Liquidity
Provider;
third, such amount as shall be required (A) if any Cash
Collateral Account has been previously funded as provided in Section
3.06(f), to fund such Cash Collateral Account up to its Required
Amount shall be deposited in such Cash Collateral Account, (B) if
any Liquidity Facility shall have become a Downgraded Facility or a
Non-Extended Facility at a time when unreimbursed Interest Drawings
under such Liquidity Facility have reduced the Available Amount
thereunder to zero, to deposit into the related Cash Collateral
Account an amount equal to such Cash Collateral Account's Required
Amount shall be deposited in such Cash Collateral Account, and (C)
if, with respect to any particular Liquidity Facility, neither
subclause (A) nor subclause (B) of this clause "third" is
applicable, to pay or reimburse the Liquidity Provider in respect of
such Liquidity Facility in an amount equal to the amount of any
unreimbursed Interest Drawings under such Liquidity Facility shall
be distributed to such Liquidity Provider, in each case pro rata on
the basis of the amounts of the required deposits and/or
unreimbursed Interest Drawings;
fourth, if, with respect to any particular Liquidity
Facility, any amounts are to be distributed pursuant to either
subclause (A) or (B) of clause "third" above, then the Liquidity
Provider with respect to such Liquidity Facility shall be paid the
excess of (x) the aggregate outstanding amount of unreimbursed
Advances (whether or not then due) under such Liquidity Facility
over (y) the Required Amount for the relevant Class, pro rata on the
basis of such amounts in respect of each Liquidity Provider;
fifth, if any Class A-1 Certificates or Class A-2
Certificates are Outstanding on such Special Distribution Date, such
amount as shall be required to pay in full Expected Distributions to
the holders of Class A-1 Certificates on such Special Distribution
Date shall be distributed to the Class A-1 Trustee and such amount
as shall be required to pay in full Expected Distributions to the
holders of Class A-2 Certificates on such Special Distribution Date
shall be distributed to the Class A-2 Trustee, pro rata on the basis
of such amounts in respect of each such Class of Certificates;
sixth, if any Class B Certificates are Outstanding on
such Special Distribution Date, such amount as shall be required to
pay in full Expected Distributions to the holders of Class B
Certificates on such Special Distribution Date shall be distributed
to the Class B Trustee;
seventh, if any Class C Certificates are Outstanding on
such Special Distribution Date, such amount as shall be required to
pay in full Expected Distributions to the holders of Class C
Certificates on such Special Distribution Date shall be distributed
to the Class C Trustee;
eighth, if any Class D Certificates are Outstanding on
such Special Distribution Date, such amount as shall be required to
pay in full Expected Distributions to holders of Class D
Certificates on such Special Distribution Date shall be distributed
to the Class D Trustee; and
ninth, the balance, if any, of such Special Payment
shall be deposited in the Collection Account.
For the purposes of this Section 2.04(b), clause (x) of the
definition of "Expected Distributions" shall be deemed to read as follows: "(x)
accrued, due and unpaid interest in respect of such Certificates together with
(without duplication) accrued and unpaid interest in respect of a portion of
such Certificates equal to the outstanding principal amount of Equipment Notes
being redeemed, purchased or prepaid (immediately prior to such redemption,
purchase or prepayment)".
(ii) Upon the occurrence of a Triggering Event (whether or not
continuing), the Subordination Agent shall make distributions pursuant to this
Section 2.04(b) of amounts on deposit in the Special Payments Account on account
of the redemption, purchase or prepayment of the Equipment Notes issued pursuant
to an Indenture on the Special Distribution Date for such Special Payment in
accordance with Section 3.03.
(c) Other Special Payments. Any amounts on deposit in the Special
Payments Account other than in respect of amounts to be distributed pursuant to
Section 2.04(b) shall be distributed on the Special Distribution Date therefor
in accordance with Article III.
(d) Investment of Amounts in Special Payments Account. Any amounts
on deposit in the Special Payments Account prior to the distribution thereof
pursuant to Section 2.04(b) or 2.04(c) shall be invested in accordance with
Section 2.02(b). Investment Earnings on such investments shall be distributed in
accordance with Section 2.04(b) or 2.04(c), as the case may be.
Section 2.05. Designated Representatives. (a) With the delivery of
this Agreement, the Subordination Agent shall furnish to each Liquidity Provider
and each Trustee, and from time to time thereafter may furnish to each Liquidity
Provider and each Trustee, at the Subordination Agent's discretion, or upon any
Liquidity Provider's or Trustee's request (which request shall not be made more
than one time in any 12-month period), a certificate (a "Subordination Agent
Incumbency Certificate") of a Responsible Officer of the Subordination Agent
certifying as to the incumbency and specimen signatures of the officers of the
Subordination Agent and the attorney-in-fact and agents of the Subordination
Agent (the "Subordination Agent Representatives") authorized to give Written
Notices on behalf of the Subordination Agent hereunder. Until each Liquidity
Provider and Trustee receives a subsequent Subordination Agent Incumbency
Certificate, it shall be entitled to rely on the last Subordination Agent
Incumbency Certificate delivered to it hereunder.
(b) With the delivery of this Agreement, each Trustee shall furnish
to the Subordination Agent, and from time to time thereafter may furnish to the
Subordination Agent, at such Trustee's discretion, or upon the Subordination
Agent's request (which request shall not be made more than one time in any
12-month period), a certificate (with respect to each such Trustee, a "Trustee
Incumbency Certificate") of a Responsible Officer of such Trustee certifying as
to the incumbency and specimen signatures of the officers of such Trustee and
the attorney-in-fact and agents of such Trustee (with respect to each such
Trustee, the "Trustee Representatives") authorized to give Written Notices on
behalf of such Trustee hereunder. Until the Subordination Agent receives a
subsequent Trustee Incumbency Certificate from a Trustee, it shall be entitled
to rely on the last Trustee Incumbency Certificate with respect to such Trustee
delivered to it hereunder.
(c) With the delivery of this Agreement, each Liquidity Provider
shall furnish to the Subordination Agent, and from time to time thereafter may
furnish to the Subordination Agent, at such Liquidity Provider's discretion, or
upon the Subordination Agent's request (which request shall not be made more
than one time in any 12-month period), a certificate (with respect to each such
Liquidity Provider, an "LP Incumbency Certificate") of a Responsible Officer of
such Liquidity Provider certifying as to the incumbency and specimen signatures
of the officers of such Liquidity Provider and the attorney-in-fact and agents
of such Liquidity Provider (with respect to each such Liquidity Provider, the
"LP Representatives" and, together with the Subordination Agent Representatives
and the Trustee Representatives, the "Designated Representatives") authorized to
give Written Notices on behalf of such Liquidity Provider hereunder. Until the
Subordination Agent receives a subsequent LP Incumbency Certificate from a
Liquidity Provider, it shall be entitled to rely on the last LP Incumbency
Certificate with respect to such Liquidity Provider delivered to it hereunder.
Section 2.06. Controlling Party. (a) The Trustees and the Liquidity
Providers hereby agree that, with respect to any Indenture at any given time,
the Loan Trustee thereunder will be directed (i) in taking, or refraining from
taking, any action under such Indenture or with respect to the Equipment Notes
issued thereunder, so long as no Indenture Event of Default has occurred and is
continuing thereunder, by the holders of at least a majority of the outstanding
principal amount of such Equipment Notes (provided that, for so long as the
Subordination Agent is the registered holder of such Equipment Notes, the
Subordination Agent shall act with respect to this clause (i) in accordance with
the directions of the Trustees of Trusts for which the related Trust Properties
include, in the aggregate, such a majority of outstanding principal amount of
such Equipment Notes), and (ii) after the occurrence and during the continuance
of an Indenture Event of Default thereunder, in taking, or refraining from
taking, any action under such Indenture or with respect to such Equipment Notes,
including exercising remedies thereunder (including Accelerating the Equipment
Notes issued thereunder or foreclosing the Lien created thereunder on the
Aircraft securing such Equipment Notes), by the Subordination Agent as directed
by the Controlling Party.
(b) The Person who shall be the "Controlling Party" with respect to
any Indenture shall be: (v) initially, the Class A-1 Trustee or the Class A-2
Trustee, whichever represents the Class with the larger Pool Balance of
Certificates Outstanding at the time such Indenture Event of Default occurs
(whether or not any other Indenture Event of Default shall thereafter occur so
long as such initial Indenture Event of Default shall continue); (w) upon
payment of Final Distributions to the holders of Certificates of such larger
Class, the other of the Class A-1 Trustee or the Class A-2 Trustee; (x) upon
payment of Final Distributions to the holders of Class A-1 Certificates and
Class A-2 Certificates, the Class B Trustee; (y) upon payment of Final
Distributions to the holders of Class B Certificates, the Class C Trustee; and
(z) upon payment of Final Distributions to the holders of Class C Certificates,
the Class D Trustee. For purposes of giving effect to the foregoing, the
Trustees (other than the Controlling Party) irrevocably agree (and the
Certificateholders (other than the Certificateholders represented by the
Controlling Party) shall be deemed to agree by virtue of their purchase of
Certificates) that the Subordination Agent, as record holder of the Equipment
Notes, shall exercise its voting rights in respect of the Equipment Notes as
directed by the Controlling Party and any vote so exercised shall be binding
upon the Trustees and all Certificateholders.
The Subordination Agent shall give written notice to all of the
other parties to this Agreement promptly upon a change in the identity of the
Controlling Party. Each of the parties hereto agrees that it shall not exercise
any of the rights of the Controlling Party at such time as it is not the
Controlling Party hereunder; provided, however, that nothing herein contained
shall prevent or prohibit any Non-Controlling Party from exercising such rights
as shall be specifically granted to such Non-Controlling Party hereunder and
under the other Operative Agreements.
(c) Notwithstanding the foregoing, at any time after 18 months from
the earliest to occur of (i) the date on which the entire Available Amount under
any Liquidity Facility shall have been drawn (for any reason other than a
Downgrade Drawing or a Non-Extension Drawing) and remain unreimbursed, (ii) the
date on which the entire amount of any Downgrade Drawing or Non-Extension
Drawing under any Liquidity Facility shall have become and remain "Applied
Downgrade Advances" or "Applied Non-Extension Advances", as the case may be,
under and as defined in such Liquidity Facility and (iii) the date on which all
Equipment Notes shall have been Accelerated, the Liquidity Provider(s) with the
greatest amount of unreimbursed Liquidity Obligations shall have the right to
elect, by Written Notice to the Subordination Agent and each of the Trustees, to
become the Controlling Party hereunder with respect to any Indenture at any time
from and including the last day of such 18-month period.
(d) The exercise of remedies by the Controlling Party under this
Agreement shall be expressly limited by Section 4.01(a)(ii).
(e) The Controlling Party shall not be entitled to require or
obligate any Non-Controlling Party to provide funds necessary to exercise any
right or remedy hereunder.
(f) Notwithstanding anything contained herein, neither the
Controlling Party nor the Subordination Agent shall be authorized or empowered
to do anything that would cause any Trust to fail to qualify as a "grantor
trust" for federal income tax purposes.
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
AMOUNTS RECEIVED
Section 3.01. Written Notice of Distribution. (a) No later than 3:00
P.M. (New York City time) on the Business Day immediately preceding each Regular
Distribution Date (or Special Distribution Date for purposes of Section 2.04(b),
as the case may be), each of the following Persons shall deliver to the
Subordination Agent a Written Notice setting forth the following information as
at the close of business on such Business Day:
(i) With respect to the Class A-1 Certificates and the Class A-2
Certificates, if any are then Outstanding, the Class A-1 Trustee and the
Class A-2 Trustee, respectively, shall separately set forth the amounts to
be paid in accordance with clause "fifth" of Section 3.02 or 2.04(b), as
the case may be (without giving effect to the pro rata sharing therein);
(ii) With respect to the Class B Certificates, if any are then
Outstanding, the Class B Trustee shall separately set forth the amounts to
be paid in accordance with clause "sixth" of Section 3.02 or 2.04(b), as
the case may be;
(iii) With respect to the Class C Certificates, if any are then
Outstanding, the Class C Trustee shall separately set forth the amounts to
be paid in accordance with clause "seventh" of Section 3.02 or 2.04(b), as
the case may be;
(iv) With respect to the Class D Certificates, if any are then
Outstanding, the Class D Trustee shall separately set forth the amounts to
be paid in accordance with clause "eighth" of Section 3.02 or 2.04(b), as
the case may be;
(v) With respect to each Liquidity Facility, the Liquidity Provider
thereunder shall separately set forth the amounts to be paid in accordance
with clauses "first", "second", "third" and "fourth" of Section 3.02 or
2.04(b), as the case may be; and
(vi) Each Trustee shall set forth the amounts to be paid in
accordance with clause "ninth" of Section 3.02.
The notices required under this Section 3.01(a) may be in the form of a schedule
or similar document provided to the Subordination Agent by the parties
referenced therein or by any one of them, which schedule or similar document may
state that, unless there has been a redemption, purchase or prepayment of the
Equipment Notes, such schedule or similar document is to remain in effect until
any substitute notice or amendment shall be given to the Subordination Agent by
the party providing such notice.
(b) Following the occurrence of a Triggering Event, the
Subordination Agent shall request the following information from the following
Persons, and may from time to time thereafter again request such information
from such Persons, and each of the following Persons shall, within five Business
Days of such request of the Subordination Agent, deliver a Written Notice to the
Subordination Agent setting forth for such Person the following information:
(i) With respect to the Class A-1 Certificates and the Class A-2
Certificates, if any are then Outstanding, the Class A-1 Trustee and the
Class A-2 Trustee, respectively, shall separately set forth the amounts to
be paid in accordance with clauses "first" (to reimburse payments made by
the Class A-1 Certificateholders and the Class A-2 Certificateholders,
respectively, pursuant to subclause (iii) of clause "first" of Section
3.03), "sixth" (to reimburse payments made by the Class A-1
Certificateholders and the Class A-2 Certificateholders pursuant to
subclause (iii) of clause "sixth" of Section 3.03) and "seventh" of
Section 3.03 (without giving effect to the pro rata sharing therein);
(ii) With respect to the Class B Certificates, if any are then
Outstanding, the Class B Trustee shall separately set forth the amounts to
be paid in accordance with clauses "first" (to reimburse payments made by
the Class B Certificateholders pursuant to subclause (iii) of clause
"first" of Section 3.03), "sixth" (to reimburse payments made by the Class
B Certificateholders pursuant to subclause (iii) of clause "sixth" of
Section 3.03) and "eighth" of Section 3.03;
(iii) With respect to the Class C Certificates, if any are then
Outstanding, the Class C Trustee shall separately set forth the amounts to
be paid in accordance with clauses "first" (to reimburse payments made by
the Class C Certificateholders pursuant to subclause (iii) of clause
"first" of Section 3.03), "sixth" (to reimburse payments made by the Class
C Certificateholders pursuant to subclause (iii) of clause "sixth" of
Section 3.03) and "ninth" of Section 3.03;
(iv) With respect to the Class D Certificates, if any are then
Outstanding, the Class D Trustee shall separately set forth the amounts to
be paid in accordance with clauses "first" (to reimburse payments made by
the Class D Certificateholders pursuant to subclause (iii) of clause
"first" of Section 3.03), "sixth" (to reimburse payments made by the Class
D Certificateholders pursuant to subclause (iii) of clause "sixth" of
Section 3.03) and "tenth" of Section 3.03;
(v) With respect to each Liquidity Facility, the Liquidity Provider
thereunder shall separately set forth the amounts to be paid to it in
accordance with subclause (iii) of clause "first" of Section 3.03 and
clauses "second", "third", "fourth" and "fifth" of Section 3.03; and
(vi) Each Trustee shall set forth the amounts to be paid in
accordance with subclause (ii) of clause "first" of Section 3.03 and
subclause (ii) of clause "sixth" of Section 3.03.
(c) At such time as a Trustee or a Liquidity Provider shall have
received all amounts owing to it (and, in the case of a Trustee, the
Certificateholders for which it is acting) pursuant to Section 2.04, 3.02 or
3.03, as applicable, and, in the case of a Liquidity Provider, its commitment
under the related Liquidity Facility shall have terminated or expired, such
Person shall, by a Written Notice, so inform the Subordination Agent and each
other party to this Agreement.
(d) As provided in Section 6.05, the Subordination Agent shall be
fully protected in relying on any of the information set forth in a Written
Notice provided by any Trustee or any Liquidity Provider pursuant to Sections
3.01(a), 3.01(b) and 3.01(c) above and shall have no independent obligation to
verify, calculate or recalculate any amount set forth in any Written Notice
delivered in accordance with such paragraphs.
(e) Any Written Notice delivered by a Trustee or a Liquidity
Provider, as applicable, pursuant to Section 3.01(a), 3.01(b) or 3.01(c), if
made prior to 10:00 A.M. (New York City time) on a given date that is a Business
Day shall be effective on the date delivered (or if delivered later on such date
or on a day that is not a Business Day shall be effective as of the next
Business Day). Subject to the terms of this Agreement, the Subordination Agent
shall as promptly as practicable comply with any such instructions; provided,
however, that any transfer of funds pursuant to any instruction received after
10:00 A.M. (New York City time) on any Business Day may be made on the next
succeeding Business Day.
(f) In the event the Subordination Agent shall not receive from any
Person any information set forth in Section 3.01(a) or 3.01(b) that is required
to enable the Subordination Agent to make a distribution to such Person pursuant
to Section 2.04(b), 3.02 or 3.03, the Subordination Agent shall not make such
distribution(s) to such Person. In such event, the Subordination Agent shall
make distributions pursuant to clauses "first" through "ninth" of Section
2.04(b), clauses "first" through "tenth" of Section 3.02 and clauses "first"
through "eleventh" of Section 3.03 to the extent it shall have sufficient
information to enable it to make such distributions, and shall continue to hold
any funds remaining, after making such distributions, on the terms hereof
(including Section 2.02(b)) until the Subordination Agent shall receive all
necessary information to enable it to distribute any funds so withheld, and upon
receipt of the information necessary to distribute any funds so withheld, the
Subordination Agent shall distribute such funds.
(g) On such dates (but not more frequently than monthly) as any
Liquidity Provider or any Trustee shall request, but in any event automatically
at the end of each calendar quarter, the Subordination Agent shall send to such
party a written statement reflecting all amounts on deposit with the
Subordination Agent pursuant to Section 3.01(f).
Section 3.02. Distribution of Amounts on Deposit in the Collection
Account. Except as otherwise provided in Sections 2.04, 3.01(f), 3.03, 3.04 and
3.06(b), amounts on deposit in the Collection Account (or, in the case of any
amount described in Section 2.04(c), on deposit in the Special Payments Account)
shall be promptly distributed on each Regular Distribution Date (or, in the case
of any amount described in Section 2.04(c), on the Special Distribution Date
thereof) in the following order of priority and in accordance with the
information provided to the Subordination Agent pursuant to Section 3.01(a):
first, such amount as shall be required to pay in full
all accrued and unpaid Liquidity Expenses shall be distributed to
the Liquidity Providers pro rata on the basis of the amount of
Liquidity Expenses owed to each Liquidity Provider;
second, such amount as shall be required to pay accrued
and unpaid interest on the Liquidity Obligations as provided in the
applicable Liquidity Facility shall be distributed to the Liquidity
Providers pro rata on the basis of the amount of such accrued and
unpaid interest owed to each Liquidity Provider;
third, such amount as shall be required (A) if any Cash
Collateral Account has been previously funded as provided in Section
3.06(f), to fund such Cash Collateral Account up to its Required
Amount shall be deposited in such Cash Collateral Account, (B) if
any Liquidity Facility shall have become a Downgraded Facility or a
Non-Extended Facility at a time when unreimbursed Interest Drawings
under such Liquidity Facility have reduced the Available Amount
thereunder to zero, to deposit into the related Cash Collateral
Account an amount equal to such Cash Collateral Account's Required
Amount shall be deposited in such Cash Collateral Account, and (C)
if, with respect to any particular Liquidity Facility, neither
subclause (A) nor subclause (B) of this clause "third" is
applicable, to pay or reimburse the Liquidity Provider in respect of
such Liquidity Facility in an amount equal to the amount of all
Liquidity Obligations then due under such Liquidity Facility (other
than amounts payable pursuant to clause "first" or "second" of this
Section 3.02) shall be distributed to such Liquidity Provider, in
each case pro rata on the basis of the amounts of the required
deposits and/or unreimbursed Liquidity Obligations;
fourth, if, with respect to any particular Liquidity
Facility and the related Cash Collateral Account, any amounts are to
be distributed pursuant to either subclause (A) or (B) of clause
"third" above, then the Liquidity Provider with respect to such
Liquidity Facility shall be paid the excess of (x) the aggregate
outstanding amount of unreimbursed Advances (whether or not then
due) under such Liquidity Facility over (y) the Required Amount for
the relevant Class, pro rata on the basis of such amounts in respect
of each Liquidity Provider;
fifth, if any Class A-1 Certificates or Class A-2
Certificates are Outstanding on such Distribution Date, such amount
as shall be required to pay in full Expected Distributions to the
holders of the Class A-1 Certificates on such Distribution Date
shall be distributed to the Class A-1 Trustee and such amount as
shall be required to pay in full Expected Distributions to the
holders of the Class A-2 Certificates on such Distribution Date
shall be distributed to the Class A-2 Trustee, pro rata on the basis
of such amounts in respect of each such Class of Certificates;
sixth, if any Class B Certificates are Outstanding on
such Distribution Date, such amount as shall be required to pay in
full Expected Distributions to the holders of the Class B
Certificates on such Distribution Date shall be distributed to the
Class B Trustee;
seventh, if any Class C Certificates are Outstanding on
such Distribution Date, such amount as shall be required to pay in
full Expected Distributions to the holders of the Class C
Certificates on such Distribution Date shall be distributed to the
Class C Trustee;
eighth, if any Class D Certificates are Outstanding on
such Distribution Date, such amount as shall be required to pay in
full Expected Distributions to holders of Class D Certificates on
such Distribution Date shall be distributed to the Class D Trustee;
and
ninth, such amount as shall be required to pay in full
(without duplication of any amounts otherwise payable hereunder or
under any Operative Agreement) the aggregate unpaid amount of fees
and expenses payable as of such Distribution Date to the
Subordination Agent and each Trustee pursuant to the terms of this
Agreement and the Trust Agreements, as the case may be, shall be
distributed to the Subordination Agent and such Trustee; and
tenth, the balance, if any, of any such amount remaining
thereafter shall be held in the Collection Account for later
distribution in accordance with this Article III.
Section 3.03. Distribution of Amounts on Deposit Following a
Triggering Event. Except as otherwise provided in Sections 3.01(f) and 3.06(b),
upon the occurrence of a Triggering Event and at all times thereafter, all funds
in the Collection Account or the Special Payments Account shall be promptly
distributed by the Subordination Agent in the following order of priority:
first, such amount as shall be required to reimburse
(i) the Subordination Agent for any out-of-pocket costs and expenses
actually incurred by it (to the extent not previously reimbursed) in
the protection of, or the realization of the value of, the Equipment
Notes or any Collateral, shall be applied by the Subordination Agent
in reimbursement of such costs and expenses, (ii) each Trustee for
any amounts of the nature described in clause (i) above actually
incurred by it under the applicable Trust Agreement (to the extent
not previously reimbursed), shall be distributed to such Trustee,
and (iii) any Liquidity Provider or Certificateholder for payments,
if any, made by it to the Subordination Agent or any Trustee in
respect of amounts described in clause (i) above, shall be
distributed to such Liquidity Provider or to the applicable Trustee
for the account of such Certificateholder, in each such case, pro
rata on the basis of all amounts described in clauses (i), (ii) and
(iii) above;
second, such amount as shall be required to pay all
accrued and unpaid Liquidity Expenses shall be distributed to the
Liquidity Providers pro rata on the basis of the amount of Liquidity
Expenses owed to each Liquidity Provider;
third, such amount as shall be required to pay accrued
and unpaid interest on the Liquidity Obligations as provided in the
applicable Liquidity Facilities shall be distributed to the
Liquidity Providers pro rata on the basis of the amount of such
accrued and unpaid interest owed to each Liquidity Provider;
fourth, such amount as shall be required (A) if any Cash
Collateral Account has been previously funded as provided in Section
3.06(f), unless (i) a Performing Note Deficiency exists and a
Liquidity Event of Default shall have occurred and be continuing
with respect to the relevant Liquidity Facility or (ii) a Final
Drawing shall have occurred with respect to such Liquidity Facility,
to fund such Cash Collateral Account up to its Required Amount (less
the amount of any repayments of Interest Drawings under such
Liquidity Facility while subclause (A)(i) above is applicable) shall
be deposited in such Cash Collateral Account, (B) if any Liquidity
Facility shall have become a Downgraded Facility or a Non-Extended
Facility at a time when unreimbursed Interest Drawings under such
Liquidity Facility have reduced the Available Amount thereunder to
zero, unless (i) a Performing Note Deficiency exists and a Liquidity
Event of Default shall have occurred and be continuing with respect
to the relevant Liquidity Facility or (ii) a Final Drawing shall
have occurred with respect to such Liquidity Facility, to deposit
into the related Cash Collateral Account an amount equal to such
Cash Collateral Account's Required Amount (less the amount of any
repayments of Interest Drawings under such Liquidity Facility while
subclause (B)(i) above is applicable) shall be deposited in such
Cash Collateral Account, and (C) if, with respect to any particular
Liquidity Facility, neither subclause (A) nor subclause (B) of this
clause "fourth" is applicable, to pay in full the outstanding amount
of all Liquidity Obligations then due under such Liquidity Facility
(other than amounts payable pursuant to clause "second" or "third"
of this Section 3.03) shall be distributed to such Liquidity
Provider, in each case pro rata on the basis of the amounts of the
required deposits and/or unreimbursed Liquidity Obligations;
fifth, if, with respect to any particular Liquidity
Facility, any amounts are to be distributed pursuant to either
subclause (A) or (B) of clause "fourth" above, then the Liquidity
Provider with respect to such Liquidity Facility shall be paid the
excess of (x) the aggregate outstanding amount of unreimbursed
Advances (whether or not then due) under such Liquidity Facility
over (y) the Required Amount for the relevant Class (less the amount
of any repayments of Interest Drawings under such Liquidity Facility
while subclause (A)(i) or (B)(i), as the case may be, of clause
"fourth" above is applicable), pro rata on the basis of such amounts
in respect of each Liquidity Provider;
sixth, such amount as shall be required to reimburse or
pay (i) the Subordination Agent for any Tax (other than Taxes
imposed on compensation paid hereunder), expense, fee, charge or
other loss incurred by, or any other amount payable to, the
Subordination Agent in connection with the transactions contemplated
hereby (to the extent not previously reimbursed), shall be applied
by the Subordination Agent in reimbursement of such amount, (ii)
each Trustee for any Tax (other than Taxes imposed on compensation
paid under the applicable Trust Agreement), expense, fee, charge or
other loss incurred by, or any other amount payable to, such Trustee
under the applicable Trust Agreements (to the extent not previously
reimbursed), shall be distributed to such Trustee, and (iii) each
Certificateholder for payments, if any, made by it pursuant to
Section 5.02 in respect of amounts described in clause (i) above
(without duplication of any amounts distributed pursuant to
subclause (iii) of clause "first" of this Section 3.03), shall be
distributed to the applicable Trustee for the account of such
Certificateholder, in each such case pro rata on the basis of all
amounts described in clauses (i), (ii) and (iii) above;
seventh, if any Class A-1 Certificates or Class A-2
Certificates are Outstanding on such Distribution Date, such amount
remaining as shall be required to pay in full Adjusted Expected
Distributions on the Class A-1 Certificates shall be distributed to
the Class A-1 Trustee and such amount remaining as shall be required
to pay in full Adjusted Expected Distributions on the Class A-2
Certificates shall be distributed to the Class A-2 Trustee, pro rata
on the basis of such amounts in respect of each such Class of
Certificates;
eighth, if any Class B Certificates are Outstanding on
such Distribution Date, such amount remaining as shall be required
to pay in full Adjusted Expected Distributions on the Class B
Certificates shall be distributed to the Class B Trustee;
ninth, if any Class C Certificates are Outstanding on
such Distribution Date, such amount remaining as shall be required
to pay in full Adjusted Expected Distributions on the Class C
Certificates shall be distributed to the Class C Trustee;
tenth, if any Class D Certificates are Outstanding on
such Distribution Date, such amount remaining as shall be required
to pay in full Adjusted Expected Distributions on the Class D
Certificates shall be distributed to the Class D Trustee; and
eleventh, (i) if any Class A-1 Certificates or Class A-2
Certificates are Outstanding on such Distribution Date, such amount
remaining as shall be required to pay Final Distributions on the
Class A-1 Certificates shall be distributed to the Class A-1 Trustee
and such amount remaining as shall be required to pay Final
Distributions on the Class A-2 Certificates shall be distributed to
the Class A-2 Trustee, pro rata on the basis of the Pool Balance of
each such Class of Certificates after giving effect to the
distributions made on such Distribution Date pursuant to clause
"seventh" of this Section 3.03(a); (ii) after giving effect to
clause (i) if any Class B Certificates are Outstanding on such
Distribution Date, such amount remaining as shall be required to pay
Final Distributions on the Class B Certificates shall be distributed
to the Class B Trustee; (iii) after giving effect to clauses (i) and
(ii) if any Class C Certificates are Outstanding on such
Distribution Date, such amount remaining as shall be required to pay
Final Distributions on the Class C Certificates shall be distributed
to the Class C Trustee and (iv) after giving effect to clauses (i),
(ii) and (iii) if any Class D Certificates are Outstanding on such
Distribution Date, such amount remaining as shall be required to pay
Final Distributions on the Class D Certificates shall be distributed
to the Class D Trustee.
Section 3.04. Other Payments. (a) Any payments received by the
Subordination Agent for which no provision as to the application thereof is made
in this Agreement shall be distributed by the Subordination Agent in the order
of priority specified in Section 3.03; provided, however, that to the extent any
such payments are received or realized at any time after the Final Distributions
for all Classes of Certificates have been made, such payments shall be
distributed in the following order of priority: first, in the manner provided in
clause "first" of Section 3.03 and second, in the manner provided in clause
"tenth" of Section 3.02.
(b) On any Interest Payment Date under each Liquidity Facility which
is not a Distribution Date, the Subordination Agent shall pay to the Liquidity
Provider under such Liquidity Facility from, and to the extent of, amounts on
deposit in the Collection Account, an amount equal to the amount of interest
then due and payable to such Liquidity Provider under such Liquidity Facility.
(c) Except as otherwise provided in Section 3.03 or Sections 3.06(a)
and 3.06(b), if the Subordination Agent receives any Scheduled Payment after the
Scheduled Payment Date relating thereto, but prior to such payment becoming an
Overdue Scheduled Payment, then the Subordination Agent shall deposit such
Scheduled Payment in the Collection Account and promptly distribute such
Scheduled Payment in accordance with the priority of distributions set forth in
Section 3.02; provided that, for the purposes of this Section 3.04(c) only, each
reference in clause "ninth" of Section 3.02 to "Distribution Date" shall be
deemed to mean the actual date of payment of such Scheduled Payment and each
reference in clause "fifth", "sixth", "seventh" or "eighth" of Section 3.02 to
"Distribution Date" shall be deemed to refer to such Scheduled Payment Date.
Section 3.05. Payments to the Trustees and the Liquidity Providers.
Any amounts distributed hereunder to any Liquidity Provider shall be paid to
such Liquidity Provider by wire transfer of funds to the address such Liquidity
Provider shall provide to the Subordination Agent. The Subordination Agent shall
provide a Written Notice of any such transfer to the applicable Liquidity
Provider at the time of such transfer. Any amounts distributed hereunder by the
Subordination Agent to any Trustee that is not the same institution as the
Subordination Agent shall be paid to such Trustee by wire transfer of funds at
the address such Trustee shall provide to the Subordination Agent.
Section 3.06. Liquidity Facilities. (a) Interest Drawings. If on any
Distribution Date, after giving effect to the subordination provisions of this
Agreement, the Subordination Agent shall not have sufficient funds for the
payment of any amounts due and owing in respect of accrued interest on the Class
A-1 Certificates, the Class A-2 Certificates, the Class B Certificates or the
Class C Certificates (at the Stated Interest Rate for such Class of
Certificates), then, prior to 1:00 p.m. (New York City time) on such
Distribution Date, the Subordination Agent shall request a drawing (each such
drawing, an "Interest Drawing") under the Liquidity Facility with respect to
such Class of Certificates in an amount equal to the lesser of (i) an amount
sufficient to pay the amount of such accrued interest (at the Stated Interest
Rate for each such Class of Certificates) and (ii) the Available Amount under
such Liquidity Facility, and shall upon receipt of such amount pay such amount
to the Trustee with respect to each such Class of Certificates in payment of
such accrued interest as provided in Section 3.06(b).
(b) Application of Interest Drawings. Notwithstanding anything to
the contrary contained in this Agreement, (i) all payments received by the
Subordination Agent in respect of an Interest Drawing under the Class A-1
Liquidity Facility and all amounts withdrawn by the Subordination Agent from the
Class A-1 Cash Collateral Account, and payable in each case to the Class A-1
Certificateholders, shall be promptly distributed to the Class A-1 Trustee, (ii)
all payments received by the Subordination Agent in respect of an Interest
Drawing under the Class A-2 Liquidity Facility and all amounts withdrawn by the
Subordination Agent from the Class A-2 Cash Collateral Account, and payable in
each case to the Class A-2 Certificateholders, shall be promptly distributed to
the Class A-2 Trustee, (iii) all payments received by the Subordination Agent in
respect of an Interest Drawing under the Class B Liquidity Facility and all
amounts withdrawn by the Subordination Agent from the Class B Cash Collateral
Account, and payable in each case to the Class B Certificateholders, shall be
promptly distributed to the Class B Trustee, and (iv) all payments received by
the Subordination Agent in respect of an Interest Drawing under the Class C
Liquidity Facility and all amounts withdrawn by the Subordination Agent from the
Class C Cash Collateral Account, and payable in each case to the Class C
Certificateholders, shall be promptly distributed to the Class C Trustee.
(c) Downgrade Drawings. The Liquidity Provider will promptly, but in
any event within ten days of its receipt of notice thereof, deliver notice of
any downgrading of its debt ratings to the Subordination Agent and Delta. If at
any time a Downgrade Event occurs with respect to any Liquidity Provider, within
10 days after such downgrading (or within 45 days of such downgrading solely in
the event of a downgrading of such Liquidity Provider's short-term unsecured
debt rating by S&P from A-1+ to A-1) (but not later than the expiration date of
the Liquidity Facility issued by such Liquidity Provider in respect of which the
Downgrade Event occurs (the "Downgraded Facility")), such Liquidity Provider or
Delta may arrange for a Replacement Liquidity Provider to issue and deliver a
Replacement Liquidity Facility to the Subordination Agent. If a Downgraded
Facility has not been replaced in accordance with the terms of this paragraph,
the Subordination Agent shall, on such 10th (or 45th) day (or if such 10th (or
45th) day is not a Business Day, on the next succeeding Business Day) (or, if
earlier, on the expiration date of such Downgraded Facility), request a drawing
in accordance with and to the extent permitted by such Downgraded Facility (such
drawing, a "Downgrade Drawing") of all available and undrawn amounts thereunder.
Amounts drawn pursuant to a Downgrade Drawing shall be maintained and invested
as provided in Section 3.06(f). Subject to Section 3.06(e)(iii), the Liquidity
Provider may also arrange for a Replacement Liquidity Provider to issue and
deliver a Replacement Liquidity Facility at any time after such Downgrade
Drawing so long as such Downgrade Drawing has not been reimbursed in full to the
Liquidity Provider.
(d) Non-Extension Drawings. If any Liquidity Facility with respect
to any Class of Certificates is scheduled to expire on a date (the "Stated
Expiration Date") prior to the date that is 15 days after the Final Legal
Distribution Date for such Class of Certificates, then no earlier than the 60th
day and no later than the 40th day prior to the then applicable Stated
Expiration Date, the Subordination Agent shall request in writing that such
Liquidity Provider extend the Stated Expiration Date to the earlier of (i) the
date that is 15 days after the Final Legal Distribution Date for such Class of
Certificates and (ii) the date that is the day immediately preceding the 364th
day after the last day of the Consent Period (unless the obligations of such
Liquidity Provider thereunder are earlier terminated in accordance with such
Liquidity Facility); provided however, that at its option the initial Liquidity
Provider may elect to extend the Stated Expiration Date for its Liquidity
Facility for any Class of Certificates to a date that is later than such 364th
day and on or before the date that is 15 days after the Final Legal Distribution
Date for the relevant Class of Certificates in accordance with the procedures
set forth in Section 2.11 of such Liquidity Facility. Whether or not the
Liquidity Provider has received a request from the Subordination Agent, the
Liquidity Provider shall, during the period commencing on the date that is 60
days prior to the then effective Stated Expiration Date (or if earlier, the date
of such Liquidity Provider's receipt of such request, if any, from the
Subordination Agent) and ending on the date that is 25 days prior to such Stated
Expiration Date (the "Consent Period") advise the Subordination Agent whether,
in its sole discretion, it agrees to so extend the Stated Expiration Date. If
the Liquidity Provider advises the Subordination Agent on or before the end of
the Consent Period that such Stated Expiration Date shall not be so extended or
fails to irrevocably and unconditionally advise the Subordination Agent on or
before the end of the Consent Period that such Stated Expiration Date shall be
so extended (and, in each case, if the Liquidity Provider shall not have been
replaced in accordance with Section 3.06(e)), the Subordination Agent shall, on
the date on which the Consent Period ends (or as soon as possible thereafter but
prior to the Stated Expiration Date), in accordance with and to the extent
permitted by the terms of the expiring Liquidity Facility (a "Non-Extended
Facility"), request a drawing under such expiring Liquidity Facility (such
drawing, a "Non-Extension Drawing") of all available and undrawn amounts
thereunder. Amounts drawn pursuant to a Non-Extension Drawing shall be
maintained and invested in accordance with Section 3.06(f). If any amounts shall
be drawn pursuant to a Non-Extension Drawing and, within 30 days thereafter, the
Liquidity Provider shall not have been replaced, then at any time following the
30th day after such Non-Extension Drawing, the Liquidity Provider may, by
written notice to the Subordination Agent, agree to reinstate the Liquidity
Facility on the terms of the existing Liquidity Facility for a period ending on
the 364th day after the end of the Consent Period; provided, however, that in
such event the Liquidity Provider shall reimburse the Subordination Agent for
any costs actually incurred by or on behalf of the Subordination Agent in
drawing pursuant to the Non-Extension Drawing and funding the Cash Collateral
Account or otherwise in connection with the Non-Extension Drawing.
(e) Issuance of Replacement Liquidity Facility. (i) Subject to
Section 3.06(e)(iii), at any time, Delta may, at its option, with cause or
without cause, arrange for a Replacement Liquidity Facility to replace any
Liquidity Facility for any Class of Certificates (including any Replacement
Liquidity Facility provided pursuant to Section 3.06(e)(ii)); provided, however,
that if the initial Liquidity Provider is replaced it shall be replaced with
respect to all Liquidity Facilities under which it is a Liquidity Provider, and
provided further, however, that the initial Liquidity Provider shall not be
replaced by Delta as the Liquidity Provider with respect to any Class of
Certificates prior to the fifth anniversary of the Closing Date unless (A) there
shall have become due to the initial Liquidity Provider, or the initial
Liquidity Provider shall have demanded, amounts pursuant to Section 3.01 or 3.03
of any Liquidity Facility and the replacement of the initial Liquidity Provider
would reduce or eliminate the obligation to pay such amounts or Delta determines
in good faith that there is a substantial likelihood that the initial Liquidity
Provider will have the right to claim any such amounts within 180 days after the
date of such determination (unless the initial Liquidity Provider waives, in
writing, any right it may have to claim such amounts), which determination shall
be set forth in a certificate delivered by Delta to the initial Liquidity
Provider accompanied by an opinion of outside counsel selected by Delta and
reasonably acceptable to such initial Liquidity Provider verifying the legal
conclusions, if any, of such certificate relating to such basis, provided that
in the case of any likely claim for amounts based upon any proposed, or proposed
change in, law, rule, regulation, interpretation, directive, requirement,
request or administrative practice, such opinion may assume the adoption or
promulgation of such proposed matter, (B) it shall become unlawful or impossible
for the initial Liquidity Provider to maintain or fund its LIBOR Advances as
described in Section 3.10 of any Liquidity Facility, (C) the short-term
unsecured debt rating of the initial Liquidity Provider is downgraded by S&P
from A-1+ to A-1 and there is a resulting downgrade in the rating by either
Rating Agency of any Class of Certificates, (D) any Liquidity Facility of such
initial Liquidity Provider shall become a Downgraded Facility or a Non-Extended
Facility or a Downgrade Drawing or a Non-Extension Drawing shall have occurred
under any Liquidity Facility or (E) the initial Liquidity Provider shall have
breached any of its payment (including, without limitation, funding) obligations
under any Liquidity Facility. If such Replacement Liquidity Facility is provided
at any time after a Downgrade Drawing or a Non-Extension Drawing has been made,
all funds on deposit in the relevant Cash Collateral Account resulting from such
Downgrade Drawing or Non-Extension Drawing will be returned to the Liquidity
Provider being replaced.
(ii) If any Liquidity Provider shall determine not to extend its
Liquidity Facility in accordance with Section 3.06(d), then such Liquidity
Provider may, at its option, arrange for a Replacement Liquidity Facility to
replace such Liquidity Facility during the period no earlier than 40 days and no
later than 25 days prior to the then effective Stated Expiration Date of such
Liquidity Facility or, so long as Helaba is the Liquidity Provider for any
Liquidity Facility, at any time thereafter so long as the Non-Extension Drawing
made by such Liquidity Provider has not been reimbursed in full.
(iii) No Replacement Liquidity Facility arranged by Delta or a
Liquidity Provider in accordance with Section 3.06(c) or clause (i) or (ii) of
this Section 3.06(e) shall become effective and no such Replacement Liquidity
Facility shall be deemed a "Liquidity Facility" under the Operative Agreements,
unless and until (A) each of the conditions referred to in Section 3.06(e)(iv)
below shall have been satisfied and (B) in the case of a Replacement Liquidity
Facility arranged by a Liquidity Provider under Section 3.06(c) or Section
3.06(e)(ii), such Replacement Liquidity Provider and such Replacement Liquidity
Facility (including the fees, compensation, interest, increased costs or
withholding payable thereunder to the Replacement Liquidity Provider) are
reasonably acceptable to Delta.
(iv) In connection with the issuance of each Replacement Liquidity
Facility, the Subordination Agent shall (x) prior to the issuance of such
Replacement Liquidity Facility, obtain written confirmation from each Rating
Agency that such Replacement Liquidity Facility will not cause a reduction of
any rating then in effect for any Class of Certificates by such Rating Agency
(without regard to any downgrading of any rating of any Liquidity Provider being
replaced pursuant to Section 3.06(c)), (y) pay all Liquidity Obligations then
owing to the replaced Liquidity Provider (which payment shall be made first from
available funds in the applicable Cash Collateral Account as described in
Section 3.06(f)(ix), and thereafter from any other available source, including,
without limitation, a drawing under the Replacement Liquidity Facility) and (z)
cause the issuer of the Replacement Liquidity Facility to deliver the
Replacement Liquidity Facility to the Subordination Agent, together with a legal
opinion addressed to the Subordination Agent, the Trustees and Delta opining
that such Replacement Liquidity Facility is an enforceable obligation of such
Replacement Liquidity Provider.
(v) Upon satisfaction of the conditions set forth in Sections
3.06(e)(iii) and 3.06(e)(iv), (1) the replaced Liquidity Facility shall
terminate, (2) the Subordination Agent shall, if and to the extent so requested
by Delta or the Liquidity Provider being replaced, execute and deliver any
certificate or other instrument required in order to terminate the replaced
Liquidity Facility, shall surrender the replaced Liquidity Facility to the
Liquidity Provider being replaced and shall execute and deliver the Replacement
Liquidity Facility and any associated Fee Letter, (3) each of the parties hereto
shall enter into any amendments to this Agreement necessary to give effect to
the replacement of the applicable Liquidity Provider with the applicable
Replacement Liquidity Provider and the replacement of the applicable Liquidity
Facility with the applicable Replacement Liquidity Facility and (4) the
applicable Replacement Liquidity Provider shall be deemed to be a Liquidity
Provider with the rights and obligations of a Liquidity Provider hereunder and
under the other Operative Agreements and such Replacement Liquidity Facility
shall be deemed to be a Liquidity Facility hereunder and under the other
Operative Agreements.
(f) Cash Collateral Accounts; Withdrawals; Investments. If the
Subordination Agent shall draw all available amounts under the Class A-1
Liquidity Facility, the Class A-2 Liquidity Facility, the Class B Liquidity
Facility or the Class C Liquidity Facility pursuant to Section 3.06(c), 3.06(d)
or 3.06(i), or in the event amounts are to be deposited in the Cash Collateral
Account pursuant to subclause (A) or (B) of clause "third" of Section 2.04(b),
subclause (A) or (B) of clause "third" of Section 3.02 or subclause (A) or (B)
of clause "fourth" of Section 3.03, amounts so drawn or to be deposited, as the
case may be, shall be deposited by the Subordination Agent in the Class A-1 Cash
Collateral Account, the Class A-2 Cash Collateral Account, the Class B Cash
Collateral Account or the Class C Cash Collateral Account, respectively. All
amounts on deposit in each Cash Collateral Account shall be invested and
reinvested in Eligible Investments in accordance with Section 2.02(b). On each
Interest Payment Date (or, in the case of any Special Distribution Date
occurring prior to the occurrence of a Triggering Event, on such Special
Distribution Date), Investment Earnings on amounts on deposit in each Cash
Collateral Account (or in the case of any Special Distribution Date occurring
prior to the occurrence of a Triggering Event, an amount of such Investment
Earnings on amounts of deposits in each Cash Collateral Account equal to the
product of such Investment Earnings multiplied by a fraction, the numerator of
which is the aggregate outstanding principal amount of Equipment Notes being
redeemed, purchased or prepaid on such Special Distribution Date and the
denominator of which is the aggregate outstanding principal amount of all
Equipment Notes) shall be deposited in the Collection Account (or, in the case
of any Special Distribution Date occurring prior to the occurrence of a
Triggering Event, the Special Payments Account) and applied on such Interest
Payment Date (or Special Distribution Date, as the case may be) in accordance
with Section 2.04(b), 3.02, 3.03 or 3.04(b) (as applicable). The Subordination
Agent shall deliver a written statement to Delta and the Liquidity Provider one
day prior to each Interest Payment Date and Special Distribution Date setting
forth the aggregate amount of Investment Earnings held in the Cash Collateral
Accounts as of such date. In addition, from and after the date funds are so
deposited, the Subordination Agent shall make withdrawals from such account as
follows:
(i) on each Distribution Date, the Subordination Agent shall, to the
extent it shall not have received funds to pay accrued and unpaid interest
due and owing on the Class A-1 Certificates (at the Stated Interest Rate
for the Class A-1 Certificates) from any other source, withdraw from the
Class A-1 Cash Collateral Account, and pay to the Class A-1 Trustee, an
amount equal to the lesser of (x) an amount necessary to pay accrued and
unpaid interest (at the Stated Interest Rate for the Class A-1
Certificates) on such Class A-1 Certificates and (y) the amount on deposit
in the Class A-1 Cash Collateral Account;
(ii) on each Distribution Date, the Subordination Agent shall, to
the extent it shall not have received funds to pay accrued and unpaid
interest due and owing on the Class A-2 Certificates (at the Stated
Interest Rate for the Class A-2 Certificates) from any other source,
withdraw from the Class A-2 Cash Collateral Account, and pay to the Class
A-2 Trustee, an amount equal to the lesser of (x) an amount necessary to
pay accrued and unpaid interest (at the Stated Interest Rate for the Class
A-2 Certificates) on such Class A-2 Certificates and (y) the amount on
deposit in the Class A-2 Cash Collateral Account;
(iii) on each Distribution Date, the Subordination Agent shall, to
the extent it shall not have received funds to pay accrued and unpaid
interest due and owing on the Class B Certificates (at the Stated Interest
Rate for the Class B Certificates) from any other source, withdraw from
the Class B Cash Collateral Account, and pay to the Class B Trustee, an
amount equal to the lesser of (x) an amount necessary to pay accrued and
unpaid interest (at the Stated Interest Rate for the Class B Certificates)
on such Class B Certificates and (y) the amount on deposit in the Class B
Cash Collateral Account;
(iv) on each Distribution Date, the Subordination Agent shall, to
the extent it shall not have received funds to pay accrued and unpaid
interest due and owing on the Class C Certificates (at the Stated Interest
Rate for the Class C Certificates) from any other source, withdraw from
the Class C Cash Collateral Account, and pay to the Class C Trustee, an
amount equal to the lesser of (x) an amount necessary to pay accrued and
unpaid interest (at the Stated Interest Rate for the Class C Certificates)
on such Class C Certificates and (y) the amount on deposit in the Class C
Cash Collateral Account;
(v) on each date on which the Pool Balance of the Class A-1 Trust
shall have been reduced by payments made to the Class A-1
Certificateholders pursuant to Section 2.04(b), 3.02 or 3.03, the
Subordination Agent shall withdraw from the Class A-1 Cash Collateral
Account such amount as is necessary so that, after giving effect to the
reduction of such Pool Balance on such date (including any such reduction
resulting from a prior withdrawal of amounts on deposit in the Class A-1
Cash Collateral Account on such date) and any transfer of Investment
Earnings from such Class A-1 Cash Collateral Account to the Collection
Account or the Special Payments Account on such date, an amount equal to
the sum of the Required Amount (with respect to the Class A-1 Liquidity
Facility) plus the remaining Investment Earnings on deposit in such Class
A-1 Cash Collateral Account (if any) will be on deposit in the Class A-1
Cash Collateral Account and shall, first, pay such withdrawn amount to the
relevant Class A-1 Liquidity Provider until the Liquidity Obligations
(with respect to the Class A-1 Certificates) owing to such Class A-1
Liquidity Provider shall have been paid in full and, second, deposit any
remaining amount in the Collection Account;
(vi) on each date on which the Pool Balance of the Class A-2 Trust
shall have been reduced by payments made to the Class A-2
Certificateholders pursuant to Section 2.04(b), 3.02 or 3.03, the
Subordination Agent shall withdraw from the Class A-2 Cash Collateral
Account such amount as is necessary so that, after giving effect to the
reduction of such Pool Balance on such date (including any such reduction
resulting from a prior withdrawal of amounts on deposit in the Class A-2
Cash Collateral Account on such date) and any transfer of Investment
Earnings from such Class A-2 Cash Collateral Account to the Collection
Account or the Special Payments Account on such date, an amount equal to
the sum of the Required Amount (with respect to the Class A-2 Liquidity
Facility) plus the remaining Investment Earnings on deposit in such Class
A-2 Cash Collateral Account (if any) will be on deposit in the Class A-2
Cash Collateral Account and shall, first, pay such withdrawn amount to the
relevant Class A-2 Liquidity Provider until the Liquidity Obligations
(with respect to the Class A-2 Certificates) owing to such Class A-2
Liquidity Provider shall have been paid in full and, second, deposit any
remaining amount in the Collection Account;
(vii) on each date on which the Pool Balance of the Class B Trust
shall have been reduced by payments made to the Class B Certificateholders
pursuant to Section 2.04(b), 3.02 or 3.03, the Subordination Agent shall
withdraw from the Class B Cash Collateral Account such amount as is
necessary so that, after giving effect to the reduction of such Pool
Balance on such date (including any such reduction resulting from a prior
withdrawal of amounts on deposit in the Class B Cash Collateral Account on
such date) and any transfer of Investment Earnings from such Class B Cash
Collateral Account to the Collection Account or the Special Payments
Account on such date, an amount equal to the sum of the Required Amount
(with respect to the Class B Liquidity Facility) plus the remaining
Investment Earnings on deposit in such Class B Cash Collateral Account (if
any) will be on deposit in the Class B Cash Collateral Account and shall,
first, pay such withdrawn amount to the relevant Class B Liquidity
Provider until the Liquidity Obligations (with respect to the Class B
Certificates) owing to such Class B Liquidity Provider shall have been
paid in full and, second, deposit any remaining amount in the Collection
Account;
(viii) on each date on which the Pool Balance of the Class C Trust
shall have been reduced by payments made to the Class C Certificateholders
pursuant to Section 2.04(b), 3.02 or 3.03, the Subordination Agent shall
withdraw from the Class C Cash Collateral Account such amount as is
necessary so that, after giving effect to the reduction of such Pool
Balance on such date (including any such reduction resulting from a prior
withdrawal of amounts on deposit in the Class C Cash Collateral Account on
such date) and any transfer of Investment Earnings from such Class C Cash
Collateral Account to the Collection Account or the Special Payments
Account on such date, an amount equal to the sum of the Required Amount
(with respect to the Class C Liquidity Facility) plus the remaining
Investment Earnings on deposit in such Class C Cash Collateral Account (if
any) will be on deposit in the Class C Cash Collateral Account and shall,
first, pay such withdrawn amount to the relevant Class C Liquidity
Provider until the Liquidity Obligations (with respect to the Class C
Certificates) owing to such Liquidity Provider shall have been paid in
full and, second, deposit any remaining amount in the Collection Account;
(ix) if a Replacement Liquidity Facility for any Class of
Certificates shall be delivered to the Subordination Agent following the
date on which funds have been deposited into the Cash Collateral Account
for such Class of Certificates, the Subordination Agent shall withdraw all
amounts remaining on deposit in such Cash Collateral Account and shall pay
such amounts to the replaced Liquidity Provider until all Liquidity
Obligations owed to such Person shall have been paid in full, and deposit
any remaining amount in the Collection Account; and
(x) following the payment of Final Distributions with respect to any
Class of Certificates, on the date on which the Subordination Agent shall
have been notified by the Liquidity Provider for such Class of
Certificates that the Liquidity Obligations owed to such Liquidity
Provider have been paid in full, the Subordination Agent shall withdraw
all amounts on deposit in the Cash Collateral Account in respect of such
Class of Certificates and deposit such amount in the Collection Account.
(g) Reinstatement. With respect to any Interest Drawing under the
Liquidity Facility for any Trust, upon the reimbursement of the applicable
Liquidity Provider for all or any part of the amount of such Interest Drawing,
together with any accrued interest thereon, the Available Amount of such
Liquidity Facility shall be reinstated by an amount equal to the amount of such
Interest Drawing so reimbursed to the applicable Liquidity Provider but not to
exceed the Stated Amount for such Liquidity Facility; provided, however, that
the Available Amount of such Liquidity Facility shall not be so reinstated in
part or in full at any time if (x) both a Performing Note Deficiency exists and
a Liquidity Event of Default shall have occurred and be continuing with respect
to the relevant Liquidity Facility or (y) a Final Drawing shall have occurred
with respect to such Liquidity Facility. In the event that, with respect to any
particular Liquidity Facility, (i) funds are withdrawn from any Cash Collateral
Account pursuant to clause (i), (ii), (iii) or (iv) of Section 3.06(f) or (ii)
such Liquidity Facility shall become a Downgraded Facility or a Non-Extended
Facility at a time when unreimbursed Interest Drawings under such Liquidity
Facility have reduced the Available Amount thereunder to zero, then funds
received by the Subordination Agent at any time, other than (x) any time when
both a Performing Note Deficiency exists and a Liquidity Event of Default shall
have occurred and be continuing with respect to such Liquidity Facility or (y)
any time after a Final Drawing shall have occurred with respect to such
Liquidity Facility, shall be deposited in such Cash Collateral Account as and to
the extent provided in clause "third" of Section 2.04(b), clause "third" of
Section 3.02 or clause "fourth" of Section 3.03, as applicable, and applied in
accordance with Section 3.06(f).
(h) Reimbursement. The amount of each drawing under the Liquidity
Facilities shall be due and payable, together with interest thereon, on the
dates and at the rates, respectively, provided in the Liquidity Facilities.
(i) Final Drawing. Upon receipt from a Liquidity Provider of a
Termination Notice with respect to any Liquidity Facility, the Subordination
Agent shall, not later than the date specified in such Termination Notice, in
accordance with and to the extent permitted by the terms of such Liquidity
Facility, request a drawing under such Liquidity Facility of all available and
undrawn amounts thereunder (a "Final Drawing"). Amounts drawn pursuant to a
Final Drawing shall be maintained and invested in accordance with Section
3.06(f).
(j) Reduction of Stated Amount. Promptly following each date on
which the Required Amount of the Liquidity Facility for a Class of Certificates
is reduced as a result of a reduction in the Pool Balance with respect to such
Certificates, the Subordination Agent shall, if any such Liquidity Facility
provides for reductions of the Stated Amount of such Liquidity Facility and if
such reductions are not automatic, request such Liquidity Provider for such
Class of Certificates to reduce such Stated Amount to an amount equal to the
Required Amount with respect to such Liquidity Facility (as calculated by the
Subordination Agent after giving effect to such payment). Each such request
shall be made in accordance with the provisions of the applicable Liquidity
Facility.
(k) Relation to Subordination Provisions. Interest Drawings under
the Liquidity Facilities and withdrawals from the Cash Collateral Accounts, in
each case, in respect of interest on the Certificates of any Class, will be
distributed to the Trustee for such Class of Certificates, notwithstanding
Sections 2.04(b), 3.02, 3.03 and 3.06.
(l) Assignment of Liquidity Facility. The Subordination Agent agrees
not to consent to the assignment by any Liquidity Provider of any of its rights
or obligations under any Liquidity Facility or any interest therein unless (i)
Delta shall have consented to such assignment and (ii) each Rating Agency shall
have provided a Ratings Confirmation in respect of such assignment.
ARTICLE IV
EXERCISE OF REMEDIES
Section 4.01. Directions from the Controlling Party. (a) (i)
Following the occurrence and during the continuation of an Indenture Event of
Default under any Indenture, the Controlling Party shall direct the
Subordination Agent, which in turn shall direct the Loan Trustee under such
Indenture, in the exercise of remedies available to the holders of the Equipment
Notes issued pursuant to such Indenture, including, without limitation, the
ability to vote all such Equipment Notes in favor of Accelerating such Equipment
Notes in accordance with the provisions of such Indenture. If the Equipment
Notes issued pursuant to any Indenture have been Accelerated following an
Indenture Event of Default with respect thereto, the Controlling Party may
direct the Subordination Agent to sell, assign, contract to sell or otherwise
dispose of and deliver all (but not less than all) of such Equipment Notes to
any Person at public or private sale, at any location at the option of the
Controlling Party, all upon such terms and conditions as it may reasonably deem
advisable and in accordance with applicable law.
(ii) So long as any Certificates remain Outstanding, during the
period ending on the date which is nine months after the earlier of (x) the
Acceleration of the Equipment Notes issued pursuant to any Indenture or (y) the
occurrence of a Delta Bankruptcy Event, without the consent of each Trustee
(other than the Trustee of any Trust all of the Certificates of which are held
or beneficially owned by Delta and/or its Affiliates), no Aircraft subject to
the Lien of such Indenture or such Equipment Notes may be sold if the net
proceeds from such sale would be less than the Minimum Sale Price for such
Aircraft or such Equipment Notes.
(iii) At the request of the Controlling Party, the Subordination
Agent may from time to time during the continuance of an Indenture Event of
Default (and before the occurrence of a Triggering Event) commission an LTV
Appraisal with respect to the Aircraft subject to such Indenture.
(iv) After a Triggering Event occurs and any Equipment Note becomes
a Non-Performing Equipment Note, the Subordination Agent shall obtain Appraisals
with respect to all of the Aircraft (the "LTV Appraisals") as soon as
practicable and additional LTV Appraisals on or prior to each anniversary of the
date of such initial LTV Appraisals; provided that, if the Controlling Party
reasonably objects to the appraised value of the Aircraft shown in such LTV
Appraisals, the Controlling Party shall have the right to obtain or cause to be
obtained substitute LTV Appraisals (including any LTV Appraisals based upon
physical inspection of the Aircraft).
(b) To the extent permitted by applicable law, the Subordination
Agent, at the direction of the Controlling Party, shall take such actions as it
may reasonably deem most effectual to complete the sale or other disposition of
such Aircraft or Equipment Notes. In addition, in lieu of any sale, assignment,
contract to sell or other disposition, if the Subordination Agent is so directed
by the Controlling Party, the Subordination Agent may maintain possession of
such Equipment Notes and continue to apply monies received in respect of such
Equipment Notes in accordance with Section 2.04(b) and Article III. In addition,
in lieu of such sale, assignment, contract to sell or other disposition, or in
lieu of such maintenance of possession, the Controlling Party may direct the
Subordination Agent to, subject to the terms and conditions of the related
Indenture, instruct the Loan Trustee under such Indenture to foreclose on the
Lien on the related Aircraft or take any other remedial action permitted by such
Indenture or applicable law.
Section 4.02. Remedies Cumulative. Each and every right, power and
remedy given to the Trustees, the Liquidity Providers, the Controlling Party or
the Subordination Agent specifically or otherwise in this Agreement shall be
cumulative and shall be in addition to every other right, power and remedy
herein specifically given or now or hereafter existing at law, in equity or by
statute, and each and every right, power and remedy whether specifically herein
given or otherwise existing may, subject always to the terms and conditions
hereof, be exercised from time to time and as often and in such order as may be
deemed expedient by any Trustee, any Liquidity Provider, the Controlling Party
or the Subordination Agent, as appropriate, and the exercise or the beginning of
the exercise of any right, power or remedy shall not be construed to be a waiver
of the right to exercise at the same time or thereafter any other right, power
or remedy. No delay or omission by any Trustee, any Liquidity Provider, the
Controlling Party or the Subordination Agent in the exercise of any right,
remedy or power or in the pursuit of any remedy shall impair any such right,
power or remedy or be construed to be a waiver of any default or to be an
acquiescence therein.
Section 4.03. Discontinuance of Proceedings. In case any party to
this Agreement (including the Controlling Party in such capacity) shall have
instituted any Proceeding to enforce any right, power or remedy under this
Agreement by foreclosure, entry or otherwise, and such Proceeding shall have
been discontinued or abandoned for any reason or shall have been determined
adversely to the Person instituting such Proceeding, then and in every such case
each such party shall, subject to any determination in such Proceeding, be
restored to its former position and rights hereunder, and all rights, remedies
and powers of such party shall continue as if no such Proceeding had been
instituted.
Section 4.04. Right of Certificateholders to Receive Payments Not to
Be Impaired. Subject to the provisions of this Agreement and each Trust
Agreement, the right of any Certificateholder or any Liquidity Provider,
respectively, to receive payments hereunder (including, without limitation,
pursuant to Section 2.04, 3.02 or 3.03) when due, or to institute suit for the
enforcement of any such payment on or after the applicable Distribution Date,
shall not be impaired or affected without the consent of such Certificateholder
or such Liquidity Provider, respectively.
ARTICLE V
DUTIES OF THE SUBORDINATION AGENT;
AGREEMENTS OF TRUSTEES, ETC.
Section 5.01. Notice of Indenture Event of Default or Triggering
Event. (a) If the Subordination Agent shall have knowledge of an Indenture Event
of Default or a Triggering Event, the Subordination Agent shall promptly give
notice thereof to the Rating Agencies, Delta, the Liquidity Providers and the
Trustees by telegram, cable, facsimile or telephone (to be promptly confirmed in
writing), unless such Indenture Event of Default or Triggering Event shall have
been cured or waived. For all purposes of this Agreement, in the absence of
actual knowledge, the Subordination Agent shall not be deemed to have knowledge
of any Indenture Event of Default or Triggering Event unless notified in writing
by Delta, one or more Trustees, one or more Liquidity Providers or one or more
Certificateholders; and "actual knowledge" (as used in the foregoing clause) of
the Subordination Agent shall mean actual knowledge of an officer in the
Corporate Trust Office of the Subordination Agent.
(b) Other Notices. The Subordination Agent will furnish to each
Liquidity Provider and Trustee, promptly upon receipt thereof, duplicates or
copies of all reports, notices, requests, demands, certificates, financial
statements and other instruments furnished to the Subordination Agent as
registered holder of the Equipment Notes or otherwise in its capacity as
Subordination Agent to the extent the same shall not have been otherwise
directly distributed to such Liquidity Provider or Trustee, as applicable,
pursuant to any other Operative Agreement.
Section 5.02. Indemnification. The Subordination Agent shall not be
required to take any action or refrain from taking any action under Article IV
unless the Subordination Agent shall have received indemnification against any
risks incurred in connection therewith in form and substance reasonably
satisfactory to it, including, without limitation, adequate advances against
costs that may be incurred by it in connection therewith. The Subordination
Agent shall not be required to take any action under Article IV, nor shall any
other provision of this Agreement or any other Operative Agreement be deemed to
impose a duty on the Subordination Agent to take any action, if the
Subordination Agent shall have been advised by outside counsel that such action
is contrary to the terms hereof or is otherwise contrary to law.
Section 5.03. No Duties Except as Specified in Intercreditor
Agreement. The Subordination Agent shall not have any duty or obligation to take
or refrain from taking any action under, or in connection with, this Agreement,
except as expressly provided by the terms of this Agreement; and no implied
duties or obligations shall be read into this Agreement against the
Subordination Agent. The Subordination Agent agrees that it will, in its
individual capacity and at its own cost and expense (but without any right of
indemnity in respect of any such cost or expense) promptly take such action as
may be necessary duly to discharge all Liens on any of the Trust Accounts or any
monies deposited therein that are attributable to the Subordination Agent in its
individual capacity and that are unrelated to the transaction contemplated
hereby and by the other Operative Agreements.
Section 5.04. Notice from the Liquidity Providers and Trustees. If
any Liquidity Provider or Trustee has notice of an Indenture Event of Default or
a Triggering Event, such Person shall promptly give notice thereof to all other
Liquidity Providers and Trustees and to the Subordination Agent; provided,
however, that no such Person shall have any liability hereunder as a result of
its failure to deliver any such notice.
ARTICLE VI
THE SUBORDINATION AGENT
Section 6.01. Authorization; Acceptance of Trusts and Duties. Each
of the Class A-1 Trustee, the Class A-2 Trustee, the Class B Trustee, the Class
C Trustee and the Class D Trustee hereby designates and appoints the
Subordination Agent as the agent and trustee of such Trustee under the
applicable Liquidity Facility and authorizes the Subordination Agent to enter
into the applicable Liquidity Facility as agent and trustee for such Trustee.
Each of the Liquidity Providers and the Trustees hereby designates and appoints
the Subordination Agent as the Subordination Agent under this Agreement. State
Street accepts the trusts and duties hereby created and applicable to it and
agrees to perform such duties, but only upon the terms of this Agreement and
agrees to receive, handle and disburse all monies received by it in accordance
with the terms hereof. The Subordination Agent shall have no liability hereunder
except (a) for its own willful misconduct or negligence, (b) as provided in
Section 2.02 and the last sentence of Section 5.03, (c) for liabilities that may
result from the inaccuracy of any representation or warranty of the
Subordination Agent made in its individual capacity in any Operative Agreement
and (d) as otherwise expressly provided herein or in the other Operative
Agreements.
Section 6.02. Absence of Duties. The Subordination Agent shall have
no duty to see to any recording or filing of this Agreement or any other
document, or to see to the maintenance of any such recording or filing.
Section 6.03. No Representations or Warranties as to Documents. The
Subordination Agent shall not be deemed to have made any representation or
warranty as to the validity, legality or enforceability of this Agreement or any
other Operative Agreement or as to the correctness of any statement contained
herein or therein (other than the representations and warranties of the
Subordination Agent made in its individual capacity under any Operative
Agreement), except that the Subordination Agent hereby represents and warrants
that each of said specified documents to which it is a party has been or will be
duly executed and delivered by one of its officers who is and will be duly
authorized to execute and deliver such document on its behalf. The
Certificateholders, the Trustees and the Liquidity Providers make no
representation or warranty hereunder whatsoever.
Section 6.04. No Segregation of Monies; No Interest. Any monies paid
to or retained by the Subordination Agent pursuant to any provision hereof and
not then required to be distributed to any Trustee or any Liquidity Provider as
provided in Articles II and III or deposited into one or more Trust Accounts
need not be segregated in any manner except to the extent required by such
Articles II and III and by law, and the Subordination Agent shall not (except as
otherwise provided in Section 2.02) be liable for any interest thereon;
provided, however, that any payments received or applied hereunder by the
Subordination Agent shall be accounted for by the Subordination Agent so that
any portion thereof paid or applied pursuant hereto shall be identifiable as to
the source thereof.
Section 6.05. Reliance; Agents; Advice of Counsel. The Subordination
Agent shall not incur any liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. As to the Pool
Balance of any Trust as of any date, the Subordination Agent may for all
purposes hereof rely on a certificate signed by any Responsible Officer of the
applicable Trustee, and such certificate shall constitute full protection to the
Subordination Agent for any action taken or omitted to be taken by it in good
faith in reliance thereon. As to any fact or matter relating to the Liquidity
Providers or the Trustees the manner of ascertainment of which is not
specifically described herein, the Subordination Agent may for all purposes
hereof rely on a certificate, signed by any Responsible Officer of the
applicable Liquidity Provider or Trustee, as the case may be, as to such fact or
matter, and such certificate shall constitute full protection to the
Subordination Agent for any action taken or omitted to be taken by it in good
faith in reliance thereon. In the administration of the trusts hereunder, the
Subordination Agent may (a) execute any of the trusts or powers hereof and
perform its powers and duties hereunder directly or through agents or attorneys
and (b) consult with counsel, accountants and other skilled Persons to be
selected and retained by it. The Subordination Agent shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
advice or opinion of any such counsel, accountants or other skilled Persons
acting within such counsel's, accountants' or Person's area of competence (so
long as the Subordination Agent shall have exercised reasonable care and
judgment in selecting such Persons).
Section 6.06. Capacity in Which Acting. The Subordination Agent acts
hereunder solely as agent or trustee herein and not in its individual capacity,
except as otherwise expressly provided herein and in the Operative Agreements.
Section 6.07. Compensation. The Subordination Agent shall be
entitled to such compensation, including reasonable expenses and disbursements,
for all services rendered hereunder as Delta and the Subordination Agent may
agree from time to time in writing and shall have a priority claim to the extent
set forth in Article III on all monies collected hereunder for the payment of
such compensation, to the extent that such compensation shall not be paid by
others. The Subordination Agent agrees that it shall have no right against any
Trustee or Liquidity Provider for any fee as compensation for its services as
agent under this Agreement. The provisions of this Section 6.07 shall survive
the termination of this Agreement.
Section 6.08. May Become Certificateholder. The institution acting
as Subordination Agent hereunder may become a Certificateholder and have all
rights and benefits of a Certificateholder to the same extent as if it were not
the institution acting as the Subordination Agent.
Section 6.09. Subordination Agent Required; Eligibility. There shall
at all times be a Subordination Agent hereunder that is a Citizen of the United
States, a bank, trust company or other financial institution organized and doing
business under the laws of the United States or any state thereof and eligible
to act as a trustee under Section 310(a) of the Trust Indenture Act of 1939, as
amended, and that has a combined capital and surplus of at least $75,000,000 (or
a combined capital and surplus in excess of $5,000,000 and the obligations of
which, whether now in existence or hereafter incurred, are fully and
unconditionally guaranteed by a corporation organized under the laws of the
United States or any State or territory thereof or the District of Columbia and
having a combined capital and surplus of at least $75,000,000). If such bank,
trust company or other financial institution or such corporation publishes
reports of conditions at least annually, pursuant to law or to the requirements
of federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section 6.09 the combined capital and
surplus of such bank, trust company or other financial institution or 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 Subordination Agent shall cease to be
eligible in accordance with the provisions of this Section 6.09, the
Subordination Agent shall resign immediately in the manner and with the effect
specified in Section 7.01.
Section 6.10. Money to Be Held in Trust. All Equipment Notes, monies
and other property deposited with or held by the Subordination Agent pursuant to
this Agreement shall be held in trust for the benefit of the parties entitled to
such Equipment Notes, monies and other property and the Subordination Agent, in
its individual capacity, hereby waives all rights of set-off and counterclaim
with respect to all such property.
ARTICLE VII
SUCCESSOR SUBORDINATION AGENT
Section 7.01. Replacement of Subordination Agent; Appointment of
Successor. (a) The Subordination Agent or any successor thereto must resign if
at any time it fails to comply with Section 6.09 and may resign at any time
without cause by giving 60 days' prior written notice to Delta , the Trustees
and the Liquidity Providers. The Controlling Party (or the party that would be
the Controlling Party if an Indenture Event of Default had occurred) shall
remove the Subordination Agent if:
(1) the Subordination Agent fails to comply with Section 6.09;
(2) the Subordination Agent is adjudged bankrupt or insolvent or
files a bankruptcy petition;
(3) a receiver of the Subordination Agent shall be appointed or any
public officer shall take charge or control of the Subordination Agent or
its property or affairs for the purpose of rehabilitation, conservation or
liquidation; or
(4) the Subordination Agent otherwise becomes incapable of acting.
If the Subordination Agent resigns or is removed or if a vacancy
exists in the office of Subordination Agent for any reason (the Subordination
Agent in such event being referred to herein as the retiring Subordination
Agent), the Controlling Party (or the party that would be the Controlling Party
if an Indenture Event of Default had occurred) shall promptly appoint a
successor Subordination Agent. If a successor Subordination Agent shall not have
been appointed within 60 days after such notice of resignation or removal, the
retiring Subordination Agent, one or more of the Trustees or one or more of the
Liquidity Providers may petition any court of competent jurisdiction for the
appointment of a successor Subordination Agent to act until such time, if any,
as a successor shall have been appointed as provided above.
A successor Subordination Agent shall deliver (x) a written
acceptance of its appointment as Subordination Agent hereunder to the retiring
Subordination Agent and (y) a written assumption of its obligations hereunder
and under each Liquidity Facility to each party hereto, upon which the
resignation or removal of the retiring Subordination Agent shall become
effective, and the successor Subordination Agent shall have all the rights,
powers and duties of the Subordination Agent under this Agreement. The successor
Subordination Agent shall mail a notice of its succession to the Liquidity
Providers and the Trustees. The retiring Subordination Agent shall promptly
transfer its rights under each of the Liquidity Facilities and all of the
property and all books and records, or true, complete and correct copies
thereof, held by it as Subordination Agent to the successor Subordination Agent.
If the Subordination Agent fails to comply with Section 6.09 (to the
extent applicable), one or more of the Trustees or one or more of the Liquidity
Providers may petition a court of competent jurisdiction for the removal of the
Subordination Agent and the appointment of a successor Subordination Agent.
Notwithstanding the foregoing, no resignation or removal of the
Subordination Agent shall be effective unless and until a successor has been
appointed. No appointment of a successor Subordination Agent shall be effective
unless and until the Rating Agencies shall have delivered a Ratings
Confirmation.
(b) Any corporation into which the Subordination Agent 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 Subordination Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Subordination Agent, shall be the successor
of the Subordination Agent hereunder, provided that such corporation shall be
otherwise qualified and eligible under Section 6.09, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
ARTICLE VIII
SUPPLEMENTS AND AMENDMENTS
Section 8.01. Amendments, Waivers, Etc. (a) This Agreement may not
be supplemented, amended or modified without the consent of each Trustee
(acting, except in the case of any amendment pursuant to Section 3.06(e)(v)(y)
or any amendment contemplated by the last sentence of this Section 8.01(a), with
the consent of holders of Certificates of the related Class evidencing
Fractional Undivided Interests in the related Trust aggregating not less than a
majority in interest in such Trust or as otherwise authorized pursuant to the
relevant Trust Agreement (including, without limitation, without the consent of
the Certificateholders to the extent permitted thereby, Section 9.01 of the
Basic Agreement)), the Subordination Agent and each Liquidity Provider;
provided, however, that this Agreement may be supplemented, amended or modified
without the consent of any Trustee in order (i) to cure any ambiguity or
omission or to correct any mistake, (ii) to correct or supplement any provision,
or (iii) to make any other provision in regard to matters or questions arising
hereunder that will not materially adversely affect the interests of any Trustee
or the holders of the related Class of Certificates, and without the consent of
any Liquidity Provider if such supplement, amendment or modification is in
accordance with Section 8.01(c); provided further, however, that, if such
supplement, amendment or modification (x) would directly or indirectly amend,
modify or supersede, or otherwise conflict with, Section 2.02(b), 3.06(c),
3.06(e), 3.06(f) (other than the last sentence thereof), 3.06(l), this proviso
of 8.01(a), the last sentence of 8.01(a), 8.01(c) or 9.06 (collectively, the
"Delta Provisions"), (y) would otherwise affect the interests of a potential
Replacement Liquidity Provider or of Delta with respect to its ability to
replace any Liquidity Facility or with respect to its payment obligations under
any Operative Agreement or (z) is made pursuant to the last sentence of this
Section 8.01(a) or pursuant to Section 8.01(c), then such supplement, amendment
or modification shall not be effective without the additional written consent of
Delta. Notwithstanding the foregoing, without the consent of each
Certificateholder affected thereby and each Liquidity Provider, no supplement,
amendment or modification of this Agreement may (i) reduce the percentage of the
interest in any Trust evidenced by the Certificates issued by such Trust
necessary to consent to modify or amend any provision of this Agreement or to
waive compliance therewith or (ii), except as provided in the last sentence of
this Section 8.01(a), modify Section 2.04, 3.02 or 3.03 hereof relating to the
distribution of monies received by the Subordination Agent hereunder from the
Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in
this Section 8.01(a) shall require the consent of a Trustee at any time
following the payment of Final Distributions with respect to the related Class
of Certificates. If the Replacement Liquidity Facility for any Liquidity
Facility is to be comprised of more than one instrument as contemplated by the
definition of the term "Replacement Liquidity Facility", then each party hereto
agrees to amend this Agreement and the other Operative Agreements to incorporate
appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) Subject to Section 2.06, if the Subordination Agent, as the
registered holder of any Equipment Notes, receives a request for its consent to
any amendment, modification, consent or waiver under such Equipment Notes, the
Indenture pursuant to which such Equipment Notes were issued or the related
Participation Agreement or other related document, (i) if no Indenture Event of
Default shall have occurred and be continuing with respect to such Indenture,
the Subordination Agent shall request directions with respect to each series of
such Equipment Notes from the Trustee of the Trust which holds such Equipment
Notes and shall vote or consent in accordance with the directions of such
Trustee and (ii) if any Indenture Event of Default shall have occurred and be
continuing with respect to such Indenture, the Subordination Agent will exercise
its voting rights as directed by the Controlling Party, subject to Section 4.01
and 4.04; provided that no such amendment, modification, consent or waiver
shall, without the consent of each Liquidity Provider, reduce the amount of
principal or interest payable by Delta under any Equipment Note.
(c) Notwithstanding any provision to the contrary contained herein,
so long as Delta and/or its Affiliates holds or beneficially owns a majority in
interest of the Class D Certificates or otherwise controls the actions of the
Class D Trustee, any consent or approval of the Class D Trustee or any Class D
Certificateholders otherwise required in accordance with the foregoing
provisions shall not be required.
Section 8.02. Subordination Agent Protected. If, in the reasonable
opinion of the institution acting as the Subordination Agent hereunder, any
document required to be executed by it pursuant to the terms of Section 8.01
adversely affects any right, duty, immunity or indemnity with respect to such
institution under this Agreement or any Liquidity Facility, the Subordination
Agent may in its discretion decline to execute such document.
Section 8.03. Effect of Supplemental Agreements. Upon the execution
of any amendment, consent or supplement hereto pursuant to the provisions
hereof, this Agreement shall be and shall be deemed to be modified and amended
in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Agreement of the parties hereto
and beneficiaries hereof shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental agreement shall be and be
deemed to be part of the terms and conditions of this Agreement for any and all
purposes. In executing or accepting any supplemental agreement permitted by this
Article VIII, the Subordination Agent shall be entitled to receive, and shall be
fully protected in relying upon, an opinion of counsel stating that the
execution of such supplemental agreement is authorized or permitted by this
Agreement.
Section 8.04. Notice to Rating Agencies. Promptly following its
receipt of each amendment, consent, modification, supplement or waiver
contemplated by this Article VIII, the Subordination Agent shall send a copy
thereof to each Rating Agency.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Termination of Intercreditor Agreement. Upon (or at
any time after) payment of Final Distributions with respect to each Class of
Certificates and the payment in full of all Liquidity Obligations to the
Liquidity Providers and provided that there shall then be no other amounts due
to the Certificateholders, the Trustees, the Liquidity Providers and the
Subordination Agent hereunder or under the Trust Agreements, and that the
commitment of the Liquidity Providers under the Liquidity Facilities shall have
expired or been terminated, this Agreement shall terminate and shall be of no
further force or effect. Except as aforesaid or otherwise provided, this
Agreement and the trusts created hereby shall continue in full force and effect
in accordance with the terms hereof.
Section 9.02. Intercreditor Agreement for Benefit of Trustees,
Liquidity Providers and Subordination Agent. Subject to the second sentence of
Section 9.06 and the provisions of Section 4.04, nothing in this Agreement,
whether express or implied, shall be construed to give to any Person other than
the Trustees, the Liquidity Providers and the Subordination Agent any legal or
equitable right, remedy or claim under or in respect of this Agreement.
Section 9.03. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices required or permitted under the terms
and provisions of this Agreement shall be in English and in writing, and any
such notice may be given by United States mail, courier service or facsimile or
any other customary means of communication, and any such notice shall be
effective when delivered (or, if mailed, three Business Days after deposit,
postage prepaid, in the first class United States mail and, if delivered by
facsimile, upon completion of transmission and confirmation by the sender (by a
telephone call to a representative of the recipient or by machine confirmation)
that such transmission was received),
if to the Subordination Agent, to:
State Street Bank and Trust Company of Connecticut,
National Association
000 Xxxxxx Xxxxxx
Xxxxxxx Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to any Trustee, to:
State Street Bank and Trust Company of Connecticut,
National Association
000 Xxxxxx Xxxxxx
Xxxxxxx Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Liquidity Provider, to:
Landesbank Hessen-Thuringen Girozentrale
Main Tower
Xxxx Xxxxxxx Xxx. 00-00
00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
Attention: Asset Finance
Telephone: 00-00-0000-0000
Telecopy: 00-00-0000-0000
with a copy to:
Landesbank Hessen-Thuringen
New York Branch
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Structural Finance/Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Any party, by notice to the other parties hereto, may designate
additional or different addresses for subsequent notices or communications.
Whenever the words "notice" or "notify" or similar words are used herein, they
mean the provision of formal notice as set forth in this Section 9.03.
Section 9.04. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 9.05. No Oral Modifications or Continuing Waivers. No terms
or provisions of this Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party or other Person
against whom enforcement of the change, waiver, discharge or termination is
sought and any other party or other Person whose consent is required pursuant to
this Agreement and any waiver of the terms hereof shall be effective only in the
specific instance and for the specific purpose given.
Section 9.06. Successors and Assigns. All covenants and agreements
contained herein shall bind and inure to the benefit of, and be enforceable by,
each of the parties hereto and the successors and permitted assigns of each, all
as herein provided. In addition, the Delta Provisions shall inure to the benefit
of Delta and its successors and permitted assigns, and (without limitation of
the foregoing) Delta is hereby constituted, and agreed to be, an express third
party beneficiary of the Delta Provisions.
Section 9.07. Headings. The headings of the various Articles and
Sections herein and in the Table of Contents hereto are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section 9.08. Counterparts. This Agreement may be executed in any
number of counterparts (and each party shall not be required to execute the same
counterpart). Each counterpart of this Agreement including a signature page or
pages executed by each of the parties hereto shall be an original counterpart of
this Agreement, but all of such counterparts together constitute one instrument.
Section 9.09. Subordination. (a) As among the Trustees, and as
between the Liquidity Providers, on the one hand, and the Trustees and the
Certificateholders, on the other hand, this Agreement shall be a subordination
agreement for purposes of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as
amended from time to time. In addition, as among the Trustees and the
Certificateholders of each Class, this Agreement shall be a subordination
agreement for purposes of such Section 510.
(b) Notwithstanding the provisions of this Agreement, if prior to
the payment in full to the Liquidity Providers of all Liquidity Obligations then
due and payable or prior to the distribution in full of any other amount
distributable hereunder, any party hereto shall have received any payment or
distribution in respect of Equipment Notes or any other amount under the
Indentures or other Operative Agreements which, had the subordination provisions
of this Agreement been properly applied to such payment, distribution or other
amount, would not have been distributed to such Person, then such payment,
distribution or other amount shall be received and held in trust by such Person
and paid over or delivered to the Subordination Agent for application as
provided herein.
(c) If any Trustee, any Liquidity Provider or the Subordination
Agent receives any payment in respect of any obligations owing or amounts
distributable hereunder (or, in the case of the Liquidity Providers, in respect
of the Liquidity Obligations), which is subsequently invalidated, declared
preferential, set aside and/or required to be repaid to a trustee, receiver or
other party, then, to the extent of such payment, such obligations or amounts
(or, in the case of the Liquidity Providers, such Liquidity Obligations)
intended to be satisfied shall be revived and continue in full force and effect
as if such payment had not been received.
(d) The Trustees (on behalf of themselves and the holders of
Certificates), the Liquidity Providers and the Subordination Agent expressly
confirm and agree that the payment priorities and subordination specified in
Articles II and III shall apply in all circumstances, notwithstanding (x) the
fact that the obligations owed to the Trustees are secured by certain assets and
the Liquidity Obligations are not so secured and (y) the occurrence of a Delta
Bankruptcy Event or any similar event or occurrence relating to any other Person
(it being expressly agreed that the payment priorities and subordination
specified in Articles II and III shall apply whether or not a claim for
post-petition or post-filing interest is allowed in the proceedings resulting
from such Delta Bankruptcy Event or other event or occurrence). The Trustees
expressly agree (on behalf of themselves and the holders of Certificates) not to
assert priority over the holders of Liquidity Obligations due to their status as
secured creditors in any bankruptcy, insolvency or other legal proceeding.
(e) Each of the Trustees (on behalf of themselves and the holders of
Certificates), the Liquidity Providers and the Subordination Agent may take any
of the following actions without impairing its rights under this Agreement:
(i) obtain a Lien on any property to secure any amounts owing to it
hereunder, including, in the case of the Liquidity Providers, the
Liquidity Obligations;
(ii) obtain the primary or secondary obligation of any other obligor
with respect to any amounts owing to it hereunder, including, in the case
of the Liquidity Providers, any of the Liquidity Obligations;
(iii) renew, extend, increase, alter or exchange any amounts owing
to it hereunder, including, in the case of the Liquidity Providers, any of
the Liquidity Obligations, or release or compromise any obligation of any
obligor with respect thereto;
(iv) refrain from exercising any right or remedy, or delay in
exercising any right or remedy, which it may have; or
(v) take any other action which might discharge a subordinated party
or a surety under applicable law;
provided, however, that the taking of any such actions by any of the Trustees,
the Liquidity Providers or the Subordination Agent shall not prejudice the
rights or adversely affect the obligations of any other party under this
Agreement.
Section 9.10. Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN
THE STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.11. Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Immunity. (a) Each of the parties hereto, to the extent it may do so
under applicable law, for purposes hereof and of all other Operative Agreements
hereby (a) irrevocably submits itself to the non-exclusive jurisdiction of the
courts of the State of New York sitting in the City of New York and to the
non-exclusive jurisdiction of the United States District Court for the Southern
District of New York, for the purposes of any suit, action or other proceeding
arising out of this Agreement, the subject matter hereof or any of the
transactions contemplated hereby brought by any party or parties hereto or
thereto, or their successors or permitted assigns and (b) waives, and agrees not
to assert, by way of motion, as a defense, or otherwise, in any such suit,
action or proceeding, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is improper
or that this Agreement or the subject matter hereof or any of the transactions
contemplated hereby may not be enforced in or by such courts.
(b) EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING ESTABLISHED, including,
without limitation, contract claims, tort claims, breach of duty claims and all
other common law and statutory claims. Each of the parties warrants and
represents that it has reviewed this waiver with its legal counsel, and that it
knowingly and voluntarily waives its jury trial rights following consultation
with such legal counsel. THIS WAIVER IS IRREVOCABLE AND CANNOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
(c) Each Liquidity Provider hereby waives any immunity it may have
from the jurisdiction of the courts of the United States or of any state thereof
and waives any immunity any of its properties located in the United States may
have from attachment or execution upon a judgment entered by any such court
under the United States Foreign Sovereign Immunities Act of 1976 or any similar
successor legislation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized, as of
the date first above written.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Trustee for each of the Trusts
By:
--------------------------
Name:
Title:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as Class A-1 Liquidity
Provider, Class A-2 Liquidity Provider,
Class B Liquidity Provider and
Class C Liquidity Provider
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Subordination Agent
By:
--------------------------
Name:
Title:
