EXHIBIT 4.6
EXECUTION COPY
AMTRAN, INC.
AMERICAN TRANS AIR, INC.
and
WILMINGTON TRUST COMPANY
as Trustee
PASS THROUGH TRUST AGREEMENT
Dated as of February 15, 2000
American Trans Air 2000-1G-S Pass Through Trust
8.039% Initial American Trans Air 2000-1G-S Pass Through Certificates
8.039% Exchange American Trans Air 2000-1G-S Pass Through Certificates
Reconciliation and tie between America Trans Air Pass Through Trust
Agreement, Series 2000-1G-S dated as of February 15, 2000, and the Trust
Indenture Act of 1939. This reconciliation does not constitute part of the
Pass Through Trust Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
------------------- ------------------
310(a)(1) 7.08
(a)(2) 7.08
312(a) 3.05; 8.01; 8.02
313(a) 7.06; 8.03
314(a) 8.04(a),(c) & (d)
(a)(4) 8.04(e)
(c)(1) 1.02
(c)(2) 1.02
(d)(1) 7.13; 11.01
(d)(2) 7.13; 11.01
(d)(3) 2.01
(e) 1.02
315(b) 7.02
316(a)(last sentence) 1.04(c)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(e)
317(a)(1) 6.03
(b) 7.13
318(a) 12.05
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS................................................... 2
Section 1.01. Definitions....................................... 2
Section 1.02. Compliance Certificates and Opinions.............. 14
Section 1.03. Form of Documents Delivered to Trustee............ 15
Section 1.04. Directions of Certificateholders.................. 15
ARTICLE II ORIGINAL ISSUANCE OF CERTIFICATES;........................... 17
Section 2.01. Acquisition of Trust Property..................... 17
Section 2.02. Acceptance by Trustee............................. 17
Section 2.03. Limitation of Powers.............................. 18
ARTICLE III THE CERTIFICATES............................................. 18
Section 3.01. Title, Form, Denomination and Execution of
Certificates................................................ 18
Section 3.02. Restrictive Legends............................... 20
Section 3.03. Authentication of Certificates.................... 22
Section 3.04. Transfer and Exchange............................. 22
Section 3.05. Book-Entry Provisions for U.S. Global Certificate
and Offshore Global Certificates............................ 23
Section 3.06. Special Transfer Provisions....................... 24
Section 3.07. Mutilated, Destroyed, Lost or Stolen Certificates. 27
Section 3.08. Persons Deemed Owners............................. 27
Section 3.09. Cancellation...................................... 28
Section 3.10. Limitation of Liability for Payments.............. 28
Section 3.11. Temporary Certificates............................ 28
ARTICLE IV DISTRIBUTIONS; STATEMENTS TO................................. 29
Section 4.01. Certificate Account and Special Payments Account.. 29
Section 4.02. Distributions from Certificate Account and
Special Payments Account.................................... 29
Section 4.03. Statements to Certificateholders.................. 30
Section 4.04. Investment of Special Payment Moneys.............. 32
ARTICLE V THE COMPANY................................................... 33
Section 5.01. Maintenance of Corporate Existence................ 33
Section 5.02. Consolidation, Merger, Etc........................ 33
Section 5.03. Rule 144A(d)(4) Information....................... 34
ARTICLE VI DEFAULT...................................................... 34
Section 6.01. Events of Default................................. 34
Section 6.02. Incidents of Sale of Equipment Notes.............. 36
Section 6.03. Judicial Proceedings Instituted by Trustee;
Trustee May Bring Suit...................................... 37
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Section 6.04. Control by Certificateholders..................... 37
Section 6.05. Waiver of Past Defaults........................... 38
Section 6.06. Right of Certificateholders to Receive Payments
Not to Be Impaired.......................................... 38
Section 6.07. Certificateholders May Not Bring Suit Except
Under Certain Conditions.................................... 38
Section 6.08. Remedies Cumulative............................... 39
Section 6.09. Undertaking for Costs............................. 39
ARTICLE VII THE TRUSTEE................................................. 40
Section 7.01. Notice of Defaults................................ 40
Section 7.02. Certain Rights of Trustee......................... 40
Section 7.03. Not Responsible for Recitals or Issuance of
Certificates................................................ 41
Section 7.04. May Hold Certificates............................. 42
Section 7.05. Money Held in Trust............................... 42
Section 7.06. Compensation and Reimbursement.................... 42
Section 7.07. Corporate Trustee Required, Eligibility........... 43
Section 7.08. Resignation and Removal: Appointment of Successor. 44
Section 7.09. Acceptance of Appointment by Successor............ 46
Section 7.10. Merger, Conversion, Consolidation or Succession
to Business................................................. 46
Section 7.11. Maintenance of Agencies........................... 46
Section 7.12. Money for Certificate Payments to Be Held in
Trust....................................................... 47
Section 7.13. Registration of Equipment Notes in Name of
Subordination Agent......................................... 48
Section 7.14. Representations and Warranties of Trustee......... 48
Section 7.15. Withholding Taxes, Information Reporting.......... 49
Section 7.16. Trustee's Liens................................... 50
Section 7.17. Preferential Collection of Claims................. 50
ARTICLE VIII CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE........... 51
Section 8.01 The Company to Furnish Trustee with Names and
Addresses of Certificateholders............................. 51
Section 8.02. Preservation of Information; Communications to
Certificateholders.......................................... 51
Section 8.03. Reports by Trustee................................ 51
Section 8.04. Reports by the Guarantor and Company.............. 51
ARTICLE IX SUPPLEMENTAL AGREEMENTS...................................... 52
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders.......................................... 52
Section 9.02. Supplemental Agreements with Consent of
Certificateholders.......................................... 54
Section 9.03. Documents Affecting Immunity or Indemnity......... 55
Section 9.04. Execution of Supplemental Agreements.............. 55
Section 9.05. Effect of Supplemental Agreements................. 55
Section 9.06. Conformity with Trust Indenture Act............... 55
Section 9.07. Reference in Certificates to Supplemental
Agreements.................................................. 55
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ARTICLE X AMENDMENTS TO INDENTURES AND NOTE DOCUMENTS................... 56
Section 10.01. Amendments and Supplements to Indentures and
Other Note Documents........................................ 56
ARTICLE XI TERMINATION OF TRUSTS........................................ 57
Section 11.01. Termination of the Trust......................... 57
ARTICLE XII MISCELLANEOUS PROVISIONS.................................... 58
Section 12.01. Limitation on Rights of Certificateholders....... 58
Section 12.02. Liabilities of Certificateholders................ 58
Section 12.03. Certificates Nonassessable and Fully Paid........ 58
Section 12.04. Notices.......................................... 58
Section 12.05. Governing Law.................................... 59
Section 12.06. Severability of Provisions....................... 59
Section 12.07. Effect of Headings and Table of Contents......... 60
Section 12.08. Successors and Assigns........................... 60
Section 12.09. Benefits of Agreement............................ 60
Section 12.10. Legal Holidays................................... 60
Section 12.11. Counterparts..................................... 60
Section 12.12. Communication by Certificateholders with Other
Certificateholders.............................................. 60
Section 12.13. Intention of Parties.......................... 60
Exhibit A - Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Regulation S
Exhibit B - Form of Certificate to be Delivered in Connection with
Transfers to Non- QIB Accredited Investors
Exhibit C - Form of Certificate to be Delivered in Connection with
Transfers to QIBs
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This PASS THROUGH TRUST AGREEMENT, dated as of February 15, 2000,
among AMTRAN, INC., an Indiana corporation (the "Guarantor"), AMERICAN TRANS
AIR, INC., an Indiana corporation (the "Company"), and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as Trustee, is made with respect to
the formation of the American Trans Air 2000-1G-S Pass Through Trust, and the
issuance of 8.039% American Trans Air 2000- 1G-S Pass Through Certificates
representing fractional undivided interests in the Trust.
WITNESSETH:
WHEREAS, the Company has obtained commitments from The Boeing
Company for the delivery of certain Aircraft;
WHEREAS, as of the Transfer Date (as defined below), the Company
will have financed the acquisition of all or a portion of such Aircraft
either (i) through separate leveraged lease transactions in which the Company
leases such aircraft (collectively, the "Leased Aircraft") or (ii) through
separate secured loan transactions in which the Company owns such Aircraft
(collectively, the "Owned Aircraft");
WHEREAS, as of the Transfer Date (as defined below), in the case of
each Leased Aircraft, each Owner Trustee, acting on behalf of the
corresponding Owner Participant, will have issued pursuant to an Indenture,
on a non-recourse basis, two series of Equipment Notes in order to finance a
portion of the purchase price of each such Leased Aircraft;
WHEREAS, as of the Transfer Date (as defined below), in the case of
each Owned Aircraft, the Company, will have issued pursuant to an Indenture,
on a recourse basis, two series of Equipment Notes to finance a portion of
the purchase price of each such Owned Aircraft;
WHEREAS, as of the Transfer Date (as defined below), the Related
Trustee will assign, transfer and deliver all of such trustee's right, title
and interest to the trust property held by the Related Trustee to the Trustee
pursuant to the Assignment and Assumption Agreement (as defined below);
WHEREAS, the Trustee, effectively only, but automatically upon
execution and delivery of the Assignment and Assumption Agreement, will be
deemed to have declared the creation of this Trust (the "2000-1G-S Trust")
for the benefit of the Certificateholders, and each Holder of Certificates
outstanding as of the Transfer Date, as the grantors of the 2000-1G-S Trust,
by their respective acceptances of the Certificates, will join in the
creation of this 2000-1G-S Trust with the Trustee;
WHEREAS, (i) the Company as the "issuer", as such term is defined
in and solely for the purposes of the Securities Act of 1933, as amended, of
the Certificates to be issued pursuant hereto, and as the "obligor", as such
term is defined in and solely for the purposes of the Trust Indenture Act of
1939, as amended, and (ii) the Guarantor have each duly authorized the
execution, delivery and effectiveness of this Agreement with respect to all
such Certificates and are undertaking to perform certain administrative and
ministerial duties hereunder and are also undertaking to pay the fees and
expenses of the Trustee;
WHEREAS, upon execution and delivery of the Assignment and
Assumption Agreement, all of the conditions and requirements necessary to
make this Agreement, when duly executed and delivered, a valid, binding and
legal instrument, enforceable in accordance with its terms and for the
purposes herein expressed, will have been done, performed and fulfilled, and
the execution and delivery of this Agreement in the form and with the terms
hereof will have been in all respects duly authorized;
WHEREAS, upon issuance of the Exchange Certificates, if any, or the
effectiveness of the Shelf Registration Statement, this Agreement, as amended
or supplemented from time to time, will be subject to the provisions of the
Trust Indenture Act of 1939, and shall, to the extent applicable, be governed
by such provisions;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms used herein that are defined in this Article have the
meanings assigned to them in this Article, and include the plural as
well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference herein, have the meanings
assigned to them therein;
(3) all references in this Agreement to designated "Articles",
"Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this Agreement;
(4) 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; and
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(5) 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".
Accountants: Has the meaning specified in Section 7.15(b).
Affiliate: With respect to any specified Person, means any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person. For the purposes of this
definition, "control", when used with respect to any specified Person, means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Agent Members: Has the meaning specified in Section 3.05(a).
Aircraft: Means each of the Aircraft or Substitute Aircraft in
respect of which a Participation Agreement is entered into in accordance with
the Note Purchase Agreement.
Ambac: Means Ambac Assurance Corporation, in its capacity as the
Policy Provider as specified in the Intercreditor Agreement.
Applicable Delivery Date: Has the meaning specified in Section
2.01(b).
Applicable Participation Agreement: Has the meaning specified in
Section 2.01(b).
Assignment and Assumption Agreement: Means the assignment and
assumption agreement substantially in the form of Exhibit D to the Related
Pass Through Trust Agreement executed and delivered in accordance with
Section 11.01 thereto.
Authorized Agent: Means any Paying Agent or Registrar for the
Certificates.
Avoidable Tax: Has the meaning specified in Section 7.08(e) hereof.
Book-Entry Certificates: With respect to the Certificates, means a
beneficial interest in the Certificates, ownership and transfers of which
shall be made through book entries as described in Section 3.04.
Business Day: Means any day other than a Saturday, a Sunday or a
day on which commercial banks are required or authorized to close in
Indianapolis, Indiana or New York, New York and, so long as any such
Certificate is outstanding, the city and state in which the Trustee or any
related Loan Trustee maintains its Corporate Trust Office or receives and
disburses funds.
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Certificate: Means any one of the Initial Certificates or Exchange
Certificates issued by the Related Trust and that are "Outstanding" (as
defined in the Related Pass Through Trust Agreement) as of the Transfer Date
(the "Transfer Certificates") and any such Initial Certificates or Exchange
Certificates issued in exchange thereafter or replacement thereof pursuant to
this Agreement.
Certificate Account: Means the account or accounts created and
maintained pursuant to Section 4.01(a).
Certificateholder or Holder: Means the Person in whose name a
Certificate is registered in the Register.
Class D Certificateholder: Means, at any time, any holder of one or
more pass through certificates issued by the American Trans Air Pass Through
Trust, Series 2000-1D, if and when established.
Clearing Agency: Means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
Clearing Agency Participant: Means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects, directly or indirectly, book-entry transfers and pledges of
securities deposited with the Clearing Agency.
Code: Means the Internal Revenue Code of 1986, as amended.
Company: Means American Trans Air, Inc., an Indiana corporation, or
its successor in interest pursuant to Section 5.02.
Controlling Party: Has the meaning specified in the Intercreditor
Agreement.
Corporate Trust Office: With respect to the Trustee or any Loan
Trustee, means the office of such trustee in the city at which at any
particular time its corporate trust business shall be principally
administered.
Delivery Period Termination Date: Has the meaning specified in
Annex A to the Note Purchase Agreement.
Deposit Agreement: Means the Deposit Agreement (Class G) dated as
of February 15, 2000 relating to the Certificates, between the Depositary and
the Escrow Agent, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Depositary: Means Citibank, N.A., a national banking association.
4
Deposits: Has the meaning specified in the Deposit Agreement.
Direction: Has the meaning specified in Section 1.04(a).
Distribution Date: Means each Regular Distribution Date and each
Special Distribution Date.
DTC: Means The Depository Trust Company, its nominees and their
respective successors.
Equipment Note: Means the "Secured Certificates" as defined in the
Indentures.
ERISA: Means the Employee Retirement Income Security Act of 1974,
as amended from time to time, or any successor federal statute.
Escrow Agent: Means, initially, First Security Bank, National
Association, and any replacement or successor therefor appointed in
accordance with the Escrow Agreement.
Escrow Agreement: Means the Escrow and Paying Agent Agreement
(Class G) dated as of February 15, 2000 relating to the Certificates, among
the Escrow Agent, the Escrow Paying Agent, the Related Trustee (and after the
Transfer Date, the Trustee) and the Initial Purchasers, as the same may be
amended, supplemented or otherwise modified from time to time in accordance
with its terms.
Escrow Paying Agent: Means the Person acting as paying agent under
the Escrow Agreement.
Escrow Receipt: Means the receipt substantially in the form annexed
to the Escrow Agreement representing a fractional undivided interest in the
funds held in escrow thereunder.
Euroclear: Means the Euroclear System.
Event of Default: Means the occurrence of an Indenture Default
under any Indenture pursuant to which Equipment Notes held by the Trust were
issued.
Exchange Act: Has the meaning specified in Section 5.03.
Exchange Certificates: Means the pass through certificates
substantially in the form of Exhibit A hereto issued in exchange for the
Initial Certificates pursuant to the Registration Rights Agreement and
authenticated hereunder.
Exchange Offer: Means the exchange offer which may be made pursuant
to the Registration Rights Agreement to exchange Initial Certificates for
Exchange Certificates.
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Exchange Offer Registration Statement: Means the registration
statement that, pursuant to the Registration Rights Agreement, is filed by
the Company with the SEC with respect to the exchange of Initial Certificates
for Exchange Certificates.
FAA: Has the meaning specified in Section 5.02(a).
Final Withdrawal: Has the meaning specified in the Escrow
Agreement.
Final Withdrawal Date: Has the meaning specified in the Escrow
Agreement.
Fractional Undivided Interest: Means the fractional undivided
interest in the Trust that is evidenced by a Certificate.
Global Certificates: Has the meaning assigned to such term in
Section 3.01(d).
Global Exchange Certificate: Has the meaning specified in Section
3.01(h).
Guarantor: Means Amtran, Inc., an Indiana corporation, or its
successor in interest.
Indenture: Means each of the seven separate trust indenture and
mortgage agreements relating to the Aircraft, each entered into pursuant to
the related Participation Agreement, in each case as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
Indenture Default: With respect to any Indenture, means any Event
of Default (as such term is defined in such Indenture).
Initial Certificates: Means the certificates issued and
authenticated under the Related Pass Through Trust Agreement, and any
certificates issued and authenticated thereunder substantially in the form of
Exhibit A thereto other than the Exchange Certificates.
Initial Purchasers: Means Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxx Xxxxxxx
& Co. Incorporated, Chase Securities Inc. and Banc One Capital Markets, Inc.
Initial Regular Distribution Date: Means the first Regular
Distribution Date on which a Scheduled Payment is to be made.
Institutional Accredited Investor: Means an institutional investor
that is an "accredited investor" within the meaning set forth in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act.
6
Intercreditor Agreement: Means the Intercreditor Agreement dated
February 15, 2000 among the Related Trustee (and after the Transfer Date, the
Trustee), the Related Other Trustees (and after the Transfer Date, the Other
Trustees) the Liquidity Provider, the liquidity providers, if any, relating
to the Certificates issued under (and as defined in) the Related Other Pass
Through Trust Agreements, the Policy Provider and Wilmington Trust Company,
as Subordination Agent thereunder, as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Issuance Date: Means the date of the issuance of the Initial
Certificates.
Lease: Means, with respect to each Leased Aircraft, the lease
between an Owner Trustee, as the lessor, and the Company, as the lessee,
referred to in the related Indenture, as each such lease may be amended,
supplemented or otherwise modified in accordance with its terms.
Leased Aircraft: Has the meaning specified in the second recital to
this Agreement.
Letter of Representations: Means the agreement dated the Issuance
Date among the Company, the Trustee and the initial Clearing Agency.
Liquidity Facility: Means the Revolving Credit Agreement (2000-1G)
dated February 15, 2000 relating to the Certificates between the Liquidity
Provider and the Subordination Agent, as amended, replaced, supplemented or
otherwise modified from time to time in accordance with its terms and the
terms of the Intercreditor Agreement.
Liquidity Provider: Means, initially, Citibank, N.A., and any
replacement or successor therefor appointed in accordance with the Liquidity
Facility and the Intercreditor Agreement.
Loan Trustee: With respect to any Equipment Note or the Indenture
applicable thereto, means the bank or trust company designated as loan or
indenture trustee under such Indenture, not in its individual capacity but
solely as trustee; and any successor to such Loan Trustee as such trustee;
and Loan Trustees means all of the Loan Trustees under the Indentures.
Non-U.S. Person: Means a Person that is not a U.S. Person as
defined in Regulation S.
Note Documents: With respect to any Equipment Note, means the
related Indenture, Lease (if the related Aircraft is leased to the Company)
and Participation Agreement.
Note Purchase Agreement: Means the Note Purchase Agreement dated as
of February 15, 2000 among the Related Trustee (and after the Transfer Date,
the Trustee), the Related Other Trustees (and after the Transfer Date, the
Other Trustees), the Company, the
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Escrow Agent, the Escrow Paying Agent and the Subordination Agent, as the
same may be amended, supplemented or otherwise modified from time to time, in
accordance with its terms.
Offering Memorandum: Means the Offering Memorandum dated February
8, 2000 relating to the offering of the Certificates and the other
certificates under the Related Other Pass Through Trust Agreements.
Officer's Certificate: Means a certificate signed (a) in the case
of the Guarantor or the Company, by (i) the President or any Executive Vice
President or Senior Vice President of the Guarantor or the Company,
respectively, signing alone or (ii) any Vice President of the Guarantor or
the Company signing together with the Secretary, the Assistant Secretary, the
Treasurer or any Assistant Treasurer of the Guarantor or the Company,
respectively, or (b) in the case of the Trustee or an Owner Trustee or a Loan
Trustee, a Responsible Officer of the Trustee or such Owner Trustee or such
Loan Trustee, as the case may be.
Offshore Global Certificates: Has the meaning assigned to such term
in Section 3.01(d).
Offshore Physical Certificates: Has the meaning assigned to such
term in Section 3.01(e).
Opinion of Counsel: Means a written opinion of legal counsel who
(a) in the case of counsel for the Guarantor or the Company, may be (i) a
senior attorney in rank of the officers of the Guarantor or the Company a
principal duty of which is furnishing advice as to legal matters or (ii) such
other counsel designated by the Guarantor or the Company and reasonably
acceptable to the Trustee and (b) in the case of any Owner Trustee or any
Loan Trustee, may be such counsel as may be designated by any of them whether
or not such counsel is an employee of any of them, and who shall be
reasonably acceptable to the Trustee.
Other Pass Through Trust Agreement: Means the American Trans Air
2000-1C-S Pass Through Trust Agreement relating to the American Trans Air
2000-1C-S Pass Through Trust, dated the date hereof.
Other Trust: Means the American Trans Air 2000-1C-S Pass Through
Trust.
Other Trustee: Means the trustee under the Other Pass Through Trust
Agreement, and any successor or other trustee appointed as provided therein.
Outstanding: With respect to Certificates, means, as of the date of
determination, all Transfer Date Certificates, and all other Certificates
theretofore authenticated and delivered under this Agreement, in each case
except:
(i) Certificates theretofore canceled by the Registrar or delivered
to the Trustee or the Registrar for cancellation;
8
(ii) Certificates for which money in the full amount required to
make the final distribution with respect to such Certificates pursuant
to Section 11.01 hereof has been theretofore deposited with the Trustee
in trust for the Holders of such Certificates as provided in Section
4.01 pending distribution of such money to such Certificateholders
pursuant to payment of such final distribution; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this
Agreement.
Owned Aircraft: Has the meaning specified in the second recital to
this Agreement.
Owner Participant: With respect to any Equipment Note, means the
"Owner Participant" as referred to in the Indenture pursuant to which such
Equipment Note is issued and any permitted successor or assign of such Owner
Participant; and Owner Participants at any time of determination means all of
the Owner Participants thus referred to in the Indentures.
Owner Trustee: With respect to any Equipment Note relating to a
Leased Aircraft, means the "Owner Trustee", as referred to in the Indenture
pursuant to which such Equipment Note is issued, not in its individual
capacity but solely as trustee; and Owner Trustees means all of the Owner
Trustees party to any of the Indentures.
Participation Agreement: Means each Participation Agreement to be
entered into by the Related Trustee and the Related Other Trustees pursuant
to the Note Purchase Agreement, as the same may be amended, supplemented or
otherwise modified in accordance with its terms; and Participation Agreements
means all such agreements.
Paying Agent: Means the paying agent maintained and appointed for
the Certificates pursuant to Section 7.11.
Permitted Investments: Means obligations of the United States of
America or agencies or instrumentalities thereof for the payment of which the
full faith and credit of the United States of America is pledged, maturing in
not more than 60 days after the acquisition thereof or such lesser time as is
required for the distribution of any Special Payments on a Special
Distribution Date.
Person: Means any person, including 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.
Physical Certificates: Has the meaning specified in Section
3.01(e).
Policy: Has the meaning specified in the Intercreditor Agreement.
9
Policy Provider Agreement: Has the meaning specified in the
Intercreditor Agreement.
Policy Provider Default: Has the meaning specified in the
Intercreditor Agreement.
Pool Balance: Means, as of any date, (i) the original aggregate
face amount of the "Certificates" as defined in the Related Pass Through
Trust Agreement less (ii) the aggregate amount of all payments made in
respect of such Certificates other than payments made in respect of interest
or premium thereon or reimbursement of any costs or expenses incurred in
connection therewith less (iii) the aggregate amount of unused Deposits
distributed as a Final Withdrawal other than payments in respect of interest
or premium thereon. The Pool Balance as of any Distribution Date shall be
computed after giving effect to the payment of principal, if any, on the
Equipment Notes or other Trust Property held in the Trust and the
distribution thereof to be made on such Distribution Date and the
distribution of the Final Withdrawal to be made on such Distribution Date.
Pool Factor: Means, as of any date, the quotient (rounded to the
seventh decimal place) computed by dividing (i) the Pool Balance as at such
date by (ii) the original aggregate face amount of the "Certificates" as
defined in the Related Pass Through Trust Agreement. The Pool Factor as of
any Distribution Date shall be computed after giving effect to the payment of
principal, if any, on the Equipment Notes or other Trust Property and the
distribution thereof to be made on such Distribution Date and the
distribution of the Final Withdrawal to be made on such Distribution Date.
Private Placement Legend: Has the meaning specified in Section
3.02.
PTC Event of Default: Means any failure to pay within 10 Business
Days of the due date thereof: (i) the outstanding Pool Balance on the Final
Legal Distribution Date or (ii) interest due on the Certificates on any
Distribution Date (unless the Subordination Agent shall have made an Interest
Drawing (as defined in the Intercreditor Agreement), a withdrawal or
withdrawals from a cash collateral account pursuant to Section 3.6(f) of the
Intercreditor Agreement or a Policy Drawing, with respect thereto in an
amount sufficient to pay such interest (or such Pool Balance, as the case may
be) and shall have distributed such amount to the Trustee entitled thereto).
Purchase Agreement: Means the Purchase Agreement dated February 8,
2000 among the Initial Purchasers, the Company, the Guarantor and the
Depositary, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with its terms.
QIB: Means a qualified institutional buyer as defined in Rule 144A.
10
Record Date: Means (i) for Scheduled Payments to be distributed on
any Regular Distribution Date, other than the final distribution, the 15th
day (whether or not a Business Day) preceding such Regular Distribution Date,
and (ii) for Special Payments to be distributed on any Special Distribution
Date, other than the final distribution, the 15th day (whether or not a
Business Day) preceding such Special Distribution Date.
Register and Registrar: Mean the register maintained and the
registrar appointed pursuant to Sections 3.04 and 7.11.
Registration Event: Means the declaration of the effectiveness by
the SEC of the Exchange Offer Registration Statement or the Shelf
Registration Statement.
Registration Rights Agreement: Means the Exchange and Registration
Rights Agreement dated as of February 15, 2000, among the Initial Purchasers,
the Related Trustee (and after the Transfer Date, the Trustee), the Related
Other Trustee (and after the Transfer Date, the Other Trustee) and the
Company, as amended, supplemented or otherwise modified from time to time in
accordance with its terms.
Regular Distribution Date: With respect to distributions of
Scheduled Payments in respect of the Certificates, means each date designated
as a Regular Distribution Date in the Certificates issued pursuant to this
Agreement, until payment of all the Scheduled Payments to be made under the
Equipment Notes held in the Trust have been made; 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.
Regulation S: Means Regulation S under the Securities Act and any
successor regulation thereto.
Regulation S Restricted Date: Means the date 40-days after the
later of the commencement of the initial offering of the Initial Certificates
and the date of initial issuance thereof.
Related Other Pass Through Trust Agreement: Means the "Other Pass
Through Trust Agreement" as defined in the Related Pass Through Trust
Agreement.
Related Other Trustee: Means the "Other Trustee" as defined in the
Related Pass Through Trust Agreement.
Related Other Trust: Means the "Other Trust" as defined in the
Related Pass Through Trust Agreement.
Related Pass Through Trust Agreement: Means the American Trans Air
2000- 1G-O Pass Through Trust Agreement relating to the American Trans Air
2000-1G-O Pass Through Trust, dated as of February 15, 2000, between the
Company and the institution acting as trustee thereunder, as amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
11
Related Trust: Means the American Trans Air 2000-1G-O Pass Through
Trust, formed under the Related Pass Through Trust Agreement.
Related Trustee: Means the institution serving as trustee under the
Related Pass Through Trust Agreement.
Request: Means a request by the Company setting forth the subject
matter of the request accompanied by an Officer's Certificate and an Opinion
of Counsel as provided in Section 1.02 of this Agreement.
Responsible Officer: With respect to the Trustee, any Loan Trustee
and any Owner Trustee, means any officer in the Corporate Trust Office of the
Trustee, Loan Trustee or Owner Trustee or any other officer customarily
performing functions similar to those performed by the persons who at the
time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of and familiarity with a
particular subject.
Rule 144A: Means Rule 144A under the United States Securities Act
and any successor rule thereto.
Scheduled Payment: With respect to any Equipment Note, means (i)
any payment of principal or interest on or in respect of such Equipment Note
or any payment of interest on the Certificates with funds drawn under the
Liquidity Facility (other than any such payment which is not in fact received
by the Trustee or any Subordination Agent within five days of the date on
which such payment is scheduled to be made) due from the obligor thereon or
(ii) any payment of interest on the Certificates with funds drawn under the
Liquidity Facility or any payment of interest on or principal of the
Certificates with funds drawn under the Policy, which payment in any such
case represents the installment of principal at the stated maturity of such
installment of principal on such Equipment Note, the payment of regularly
scheduled interest accrued on the unpaid principal amount of such Equipment
Note, or both; provided that any payment of principal, premium, if any, or
interest resulting from the redemption or purchase of any Equipment Note
shall not constitute a Scheduled Payment.
SEC: Means the Securities and Exchange Commission as from time to
time constituted or created under the United States Securities Exchange Act
of 1934, as amended, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties on such date.
Securities Act: Means the United States Securities Act of 1933, as
amended from time to time, or any successor thereto.
Shelf Registration Statement: Means the shelf registration
statement which may be required to be filed by the Company with the SEC
pursuant to any Registration Rights Agreement, other than an Exchange Offer
Registration Statement.
12
Special Distribution Date: Means each date on which a Special
Payment is to be distributed as specified in this Agreement; 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.
Special Redemption Premium: Means the premium payable by the
Company in respect of the Final Withdrawal pursuant to the Note Purchase
Agreement.
Special Payment: Means any payment (other than a Scheduled Payment)
in respect of, or any proceeds of, any Equipment Note or Trust Indenture
Estate (as defined in each Indenture) or Special Redemption Premium (if
applicable).
Special Payments Account: Means the account or accounts created and
maintained pursuant to Section 4.01(b).
Subordination Agent: Has the meaning specified therefor in the
Intercreditor Agreement.
Substitute Aircraft: Has the meaning specified in Section 1(g) of
the Note Purchase Agreement.
Transfer Date: Means the moment of execution and delivery of the
Assignment and Assumption Agreement by each of the parties thereto.
Transfer Date Certificates: Has the meaning specified in the
definition of "Certificates".
Trust: Means the trust created by this Agreement, the estate of
which consists of Trust Property.
Trust Indenture Act: Means the United States Trust Indenture Act of
1939, as amended from time to time.
13
Trust Property: Means (i) the Equipment Notes held as the property
of the Trust and, subject to the Intercreditor Agreement, all monies at any
time paid thereon and all monies due and to become due thereunder, (ii) all
rights of the Trust and the Trustee, on behalf of the Trust, under the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase Agreement,
the Policy and the Liquidity Facilities, including, without limitation, all
rights to receive certain payments thereunder, and all monies paid to the
Trustee on behalf of the Trust pursuant to the Intercreditor Agreement, the
Policy or the Liquidity Facilities, provided, that rights with respect to the
Deposits or under the Escrow Agreement will not constitute Trust Property,
and (iii) the funds from time to time deposited in the Certificate Account
and the Special Payments Account and, subject to the Intercreditor Agreement,
any proceeds from the sale by the Trustee pursuant to Article VI hereof of
any such Equipment Note.
Trustee: Means Wilmington Trust Company, not in its individual
capacity but solely as trustee, or its successor in interest, and any
successor trustee appointed as provided herein.
Trustee's Lien: Has the meaning specified in section 7.16.
U.S. Global Certificate: Has the meaning specified in Section
3.01(c).
U.S. Physical Certificates: Has the meaning specified in Section
3.01(e).
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request (except with respect to matters set forth in Article
II) by the Company, any Owner Trustee or any Loan Trustee to the Trustee to
take any action under any provision of this Agreement, the Company, such
Owner Trustee or such Loan Trustee, as the case may be, shall furnish to the
Trustee (i) an Officer's Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Agreement
relating to the proposed action have been complied with and (ii) an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any
such application or request as to which the furnishing of such documents is
specifically required by any provision of this Agreement relating to such
particular application or request, no additional certificate or opinion need
be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement (other than a
certificate provided pursuant to Section 8.04(d)) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions in this
Agreement relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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Section 1.03. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any Opinion of Counsel stated to be based on the opinion of other
counsel shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
Section 1.04. Directions of Certificateholders.
(a) Any direction, consent, request, demand, authorization, notice,
waiver or other action provided by this Agreement to be given or taken by
Certificateholders (a "Direction") may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such
Certificateholders in person or by an agent or proxy duly appointed in
writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required pursuant to this
Agreement, to the Company or any Loan Trustee. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the Directions of the Certificateholders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent or proxy shall be sufficient for any
purpose of this Agreement and conclusive in favor of the Trustee, the Company
and any Loan Trustee, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public
or other officer of any jurisdiction authorized to take acknowledgments of
deeds or administer oaths that the Person executing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or such other officer and
where such execution is by an officer of a corporation or association or a
member of a partnership, on behalf of such corporation, association or
partnership, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other reasonable manner which the Trustee deems
sufficient.
(c) In determining whether the Certificateholders of the requisite
Fractional Undivided Interests of Certificates Outstanding have given any
Direction under this Agreement, Certificates owned by the Company, the
Guarantor, any Owner Trustee, any Owner Participant or any Affiliate of any
such Person shall be disregarded and deemed not to be Outstanding for
15
purposes of any such determination. In determining whether the Trustee shall
be protected in relying upon any such Direction, only Certificates which the
Trustee knows to be so owned shall be so disregarded. Notwithstanding the
foregoing, (i) if any such Person owns 100% of the Certificates Outstanding,
such Certificates shall not be so disregarded as aforesaid, and (ii) if any
amount of Certificates so owned by any such Person have been pledged in good
faith, such Certificates shall not be disregarded as aforesaid if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Certificates and that the pledgee is not the Company,
the Guarantor, any Owner Trustee, any Owner Participant or any Affiliate of
any such Person.
(d) The Company may, at its option by delivery of an Officer's
Certificate to the Trustee, set a record date to determine the
Certificateholders entitled to give a Direction. Notwithstanding Section
316(c) of the Trust Indenture Act, such record date shall be the record date
specified in such Officer's Certificate which shall be a date not more than
30 days prior to the first solicitation of Certificateholders in connection
therewith. If such a record date is fixed, such Direction may be given before
or after such record date, but only the Certificateholders of record at the
close of business on such record date shall be deemed to be
Certificateholders for the purposes of determining whether Certificateholders
of the requisite proportion of Outstanding Certificates have authorized or
agreed or consented to such Direction, and for that purpose the Outstanding
Certificates shall be computed as of such record date; provided that no such
Direction by the Certificateholders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Agreement not later than one year after the record date.
(e) Any Direction by the Holder of any Certificate shall bind the
Holder of every Certificate issued upon the transfer thereof or in exchange
therefor or in lieu thereof, whether or not notation of such Direction is
made upon such Certificate.
(f) Except as otherwise provided in Section 1.04(c), Certificates
owned by or pledged to any Person shall have an equal and proportionate
benefit under the provisions of this Agreement, without preference, priority,
or distinction as among all of the Certificates.
(g) For all purposes of this Agreement, all Initial Certificates
and all Exchange Certificates shall vote and take all actions of
Certificateholders together as one series of Certificates.
16
ARTICLE II
ACQUISITION OF TRUST PROPERTY
Section 2.01. Acquisition of Trust Property. (a) The Trustee is
hereby irrevocably authorized and directed to execute and deliver the
Assignment and Assumption Agreement on the date specified in Section 11.01 of
the Related Pass Through Trust Agreement, subject only to the satisfaction of
the conditions to such execution set forth in said Section 11.01. This
Agreement (except only for the immediately preceding sentence hereof, which
is effective upon execution and delivery hereof) shall become effective upon
the execution and delivery of the Assignment and Assumption Agreement by the
Trustee and the Related Trustee, automatically and without any further
signature or action on the part of the Company and the Trustee, and shall
thereupon constitute the legal, valid and binding obligation of the parties
hereto enforceable against each of the parties hereto in accordance with its
terms. Upon such execution and delivery of the Assignment and Assumption
Agreement, the Related Trust shall be terminated, the Certificateholders
shall receive beneficial interests in the Trust in exchange for their
interests in the Related Trust equal to their respective beneficial interest
in the Related Trust and the "Outstanding" (as defined in the Related Pass
Through Trust Agreement) pass through certificates representing fractional
undivided interests in the Related Trust shall be deemed for all purposes of
this Agreement and the Related Pass Through Trust Agreement, without further
signature or action of any party or Certificateholder, to the Certificates
representing the same Fractional Undivided Interests in the Trust and the
Trust Property. By acceptance of its Certificate, each Certificateholder
consents to and ratifies such assignment, transfer and delivery of the trust
property of the Related Trust to the Trustee upon execution and delivery of
the Assignment and Assumption Agreement.
Section 2.02. Acceptance by the Trustee. The Trustee, upon the
execution and delivery of the Assignment and Assumption Agreement,
acknowledges its acceptance of all right, title, and interest in and to the
Trust Property and declares that the Trustee holds and will hold such right,
title, and interest for the benefit of all then present and future
Certificateholders, upon the trusts herein set forth. Subject to Section
7.13, the Trustee shall take all actions reasonably necessary to effect the
registration of all such Equipment Notes in the name of the Subordination
Agent. By the acceptance of each Certificate issued to it under the Related
Pass Through Trust Agreement and deemed issued under this Agreement, each
Holder of any such Certificate as grantor of the Trust thereby joins in the
creation and declaration of the Trust.
17
Section 2.03. Limitation of Powers. The Trust is constituted solely
for the purpose of making the investment in the Equipment Notes, and, except
as set forth herein, the Trustee shall not be authorized or empowered to
acquire any other investments or engage in any other activities and, in
particular, the Trustee shall not be authorized or empowered to do anything
that would cause such Trust to fail to qualify as a "grantor trust" for
federal income tax purposes (including as subject to this restriction
acquiring the Aircraft (as defined in the respective related Indentures) by
bidding such Equipment Notes or otherwise, or taking any action with respect
to any such Aircraft once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01. Title, Form, Denomination and Execution of Certificates.
(a) The Initial Certificates shall be known as the "8.039%
Initial Pass Through Certificates, Series 2000-1G-S" and the Exchange
Certificates shall be known as the "8.039% Exchange Pass Through Certificates,
Series 2000-1G-S" in each case of the Trust. Each Certificate will represent a
fractional undivided interest in the Trust and shall be substantially in the
form set forth as Exhibit A to the Related Pass Through Trust Agreement, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by the Related Pass Through Trust Agreement or this
Agreement, as the case may be, or as the Trustee may deem appropriate to
reflect the fact that the Certificates are being issued hereunder as opposed
to the Related Pass Through Trust Agreement, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the Trustee or the
officers executing such Certificates, as evidenced by the Trustee's or the
officer's execution of the Certificates. Any portion of the text of any
Certificate may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Certificate. At the Escrow Agent's
request under the Escrow Agreement, the Trustee shall affix the corresponding
Escrow Receipt to any Certificate issued hereunder. Any transfer or exchange
of any Certificate shall also effect a transfer or exchange of the related
Escrow Receipt. Prior to the Final Withdrawal Date, no transfer or exchange of
any Certificate shall be permitted unless the corresponding Escrow Receipt is
attached thereto and also is so transferred or exchanged. By acceptance of any
Certificate to which an Escrow Receipt is attached, each Holder of such a
Certificate acknowledges and accepts the restrictions on transfer of the
Escrow Receipt set forth herein and in the Escrow Agreement.
(b) The Initial Certificates shall be issued only in fully
registered form without coupons in minimum denominations of $1,000 or
integral multiples of $1,000 in excess thereof, except that one Certificate
may be issued in a denomination of less than $1,000. Each Certificate shall
be dated the date of its authentication. The aggregate Fractional Undivided
Interest of Certificates shall not at any time exceed $201,901,000.
18
(c) The Initial Certificates offered and sold in reliance on Rule
144A shall be issued initially in the form of a single permanent global
Certificate in registered form, substantially in the form set forth as
Exhibit A to the Related Pass Through Trust Agreement with such applicable
legends as are provided for in clauses (a) and (b) of Section 3.02 (the "U.S.
Global Certificate"). The U.S. Global Certificate will be registered in the
name of a nominee for DTC and deposited with the Trustee, as custodian for
DTC. The aggregate principal amount of the U.S. Global Certificate may from
time to time be increased or decreased by adjustments made on the records of
DTC or its nominee, or of the Trustee, as custodian for DTC or its nominee,
as hereinafter provided.
(d) The Initial Certificates offered and sold in offshore
transactions in reliance on Regulation S shall be issued in the form of a
single global Certificate in registered form, substantially in the form set
forth as Exhibit A to the Related Pass Through Trust Agreement with such
applicable legends as are provided for in clause (b) of Section 3.02 (the
"Offshore Global Certificate"). The U.S. Global Certificate and the Offshore
Global Certificates are sometimes referred to as the "Global Certificates".
(e) The Initial Certificates offered and sold to Institutional
Accredited Investors shall be issued in the form of permanent certificated
Certificates in registered form in substantially the form set forth as
Exhibit A to the Related Pass Through Trust Agreement with such applicable
legends as are provided for in clauses (a) and (b) of Section 3.02 hereto
(the "U.S. Physical Certificates"). Initial Certificates issued pursuant to
Section 3.05(b) in exchange for interests in any Offshore Global Certificate
shall be in the form of permanent certificated Certificates in registered
form substantially in the form set forth in Exhibit A (the "Offshore Physical
Certificates"). The Offshore Physical Certificates and U.S. Physical
Certificates are sometimes collectively herein referred to as the "Physical
Certificates".
(f) Certificates offered and sold to any Institutional Accredited
Investor which is not a QIB in a transaction exempt from registration under
the Securities Act (and other than as described in Section 3.01(c)) shall be
issued substantially in the form set forth in Exhibit A to the Related Pass
Through Trust Agreement (the "Restricted Definitive Certificates").
Certificates issued pursuant to Section 3.06(b) in exchange for interests in
a U.S. Global Certificate shall be issued in the form of a Restricted
Definitive Certificate and Certificates issued pursuant to Section 3.06(b) in
exchange for an interest in a Offshore Global Certificate shall be issued in
definitive, fully registered form without interest coupons (the "Regulation S
Definitive Certificates"). The Restricted Definitive Certificates and the
Regulation S Definitive Certificates are sometimes collectively referred to
herein as the "Definitive Certificates".
(g) The Certificates shall be in registered form and shall be
typed, printed, lithographed or engraved or produced by any combination of
these methods or may be produced in any other manner, all as determined by
the officers executing such Certificates, as evidenced by their execution of
such Certificates.
(h) The Exchange Certificates exchanged for Initial Certificates
under the Related Pass Through Trust Agreement shall be in the form of one or
more Global Certificates
19
substantially in the form of Exhibit A thereto (each, a "Global Exchange
Certificate"), except that Exchange Certificates issued under this Trust
shall be in the form of one or more global certificates substantially in the
form of Exhibit A to the Related Pass Through Trust Agreement except that (i)
the Private Placement Legend (hereinafter defined) shall be omitted and (ii)
such Exchange Certificates shall contain such appropriate insertions,
omissions, substitutions and other variations from the form set forth in
Exhibit A to the Related Pass Through Trust Agreement relating to the nature
of the Exchange Certificates or to reflect that the Certificates are being
issued hereunder as opposed to the Related Pass Through Trust Agreement, as
the Responsible Officer of the Trustee executing such Exchange Certificates
on behalf of the Trust may determine, as evidenced by such officer's
execution on behalf of the Trust of such Exchange Certificates. Such Global
Exchange Certificates shall be in registered form and be registered in the
name of DTC and deposited with the Trustee, at its Corporate Trust Office, as
custodian for DTC. The aggregate principal amount of any Global Exchange
Certificate may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for DTC for such Global
Exchange Certificate, which adjustments shall be conclusive as to the
aggregate principal amount of any such Global Exchange Certificate. Subject
to clause (i) and (ii) of the first sentence of this Section 3.01(g), the
terms hereof applicable to U.S. Global Certificates and/or Global
Certificates shall apply to the Global Exchange Certificates mutatis
mutandis.
Section 3.02. Restrictive Legends.
(a) Subject to Section 3.01 and 3.06, each U.S. Global Certificate
and each U.S. Physical Certificate shall bear the following legend (the
"Private Placement Legend") on the face thereof:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS
NOT A U.S. PERSON AND IS ACQUIRING THIS CERTIFICATE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT,
(2) AGREES THAT IT WILL NOT, WITHIN TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE LAST DATE ON WHICH THIS
CERTIFICATE WAS HELD BY AMERICAN TRANS AIR, INC. ("ATA") OR AN AFFILIATE
OF ATA, RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A) TO ATA
OR ANY SUBSIDIARY
20
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER
IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING $100,000
OR MORE AGGREGATE PRINCIPAL AMOUNT OF SUCH CERTIFICATES THAT TAKES
DELIVERY OF THIS CERTIFICATE IN DEFINITIVE FORM, AND PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS CERTIFICATE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND (3) AGREES THAT IT WILL DELIVER
TO EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CASE THIS CERTIFICATE IS
IN DEFINITIVE FORM, IN CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE
WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THE
CERTIFICATE OR THE LAST DATE ON WHICH THIS CERTIFICATE WAS HELD BY ATA
OR AN AFFILIATE OF ATA, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE
PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE
TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF
THE FOREGOING RESTRICTIONS.
(b) Each Global Certificate shall also bear the following legend on
the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO. OR TO SUCH OTHER
21
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE
LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO
A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 3.05 AND 3.06
OF THE PASS THROUGH TRUST AGREEMENT REFERRED TO HEREIN.
Section 3.03. Authentication of Certificates. No Certificate shall
be entitled to any benefit under this Agreement or be valid or obligatory for
any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by the manual signature of one of its authorized signatories, and
such certificate upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly authenticated and
delivered hereunder.
Section 3.04. Transfer and Exchange. (a) The Trustee shall cause to
be kept at the office or agency to be maintained by it in accordance with the
provisions of Section 7.11 of this Agreement a register (the "Register") for
the Certificates in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of the Certificates
and of transfers and exchanges of the Certificates as herein provided. The
Trustee shall initially be the registrar (the "Registrar") for the purpose of
registering the Certificates and transfers and exchanges of the Certificates
as herein provided. A Certificateholder may transfer a Certificate by written
application to the Registrar stating the name of the proposed transferee and
otherwise complying with the terms of this Agreement, including providing a
written certificate or other evidence of compliance with any restrictions on
transfer, in form satisfactory to the Trustee and the Registrar; provided
that no exchange of Initial Certificates for Exchange Certificates shall
occur until an Exchange Offer Registration Statement shall have been declared
effective by the SEC (notice of which shall be provided to the Trustee by the
Company). No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Certificateholder only upon, final acceptance and
registration of the transfer by the Registrar in the Register. Prior to the
registration of any transfer by a Certificateholder as provided herein, the
Trustee shall treat the person in whose name the Certificate is registered as
the owner thereof for all purposes, and the Trustee shall not be affected by
notice to the contrary. Furthermore, DTC shall, by acceptance of a Global
Certificate, agree that transfers of beneficial interests in such Global
Certificate may be effected only through a book-entry system maintained by
DTC (or its agent), and that ownership of a beneficial interest in the
Certificate shall be required to be reflected in a book entry. When
Certificates are presented to the Registrar with a request to register the
transfer thereof or to exchange them for an equal face amount of Certificates
of other authorized denominations, the Registrar shall register the transfer
or make the exchange as
22
requested if its requirements for such transactions are met. To permit
registrations of transfers and exchanges in accordance with the terms,
conditions and restrictions hereof, the Trustee shall execute and
authenticate Certificates at the Registrar's request. No service charge shall
be made to a Certificateholder for any registration of transfer or exchange
of the Certificates, but the Trustee shall require payment of a sum
sufficient to cover any tax or similar governmental charge payable in
connection therewith. All Certificates surrendered for registration of
transfer or exchange shall be canceled and subsequently destroyed by the
Trustee.
Section 3.05. Book-Entry Provisions for U.S. Global Certificate and
Offshore Global Certificates.
(a) Members of, or participants in, DTC ("Agent Members") shall
have no rights under this Agreement with respect to any Global Certificate
held on their behalf by DTC, or the Trustee as its custodian, and DTC may be
treated by the Trustee and any agent of the Trustee as the absolute owner of
such Global Certificate for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Trustee or any agent of the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by DTC or shall impair, as between DTC and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a holder of any Certificate. Upon the issuance of any Global
Certificate, the Registrar or its duly appointed agent shall record a nominee
of DTC as the registered holder of such Global Certificate.
(b) Transfers of any Global Certificate shall be limited to
transfers of such Global Certificate in whole, but not in part, to nominees
of DTC, its successor or such successor's nominees. Beneficial interests in
the U.S. Global Certificate and any Offshore Global Certificate may be
transferred in accordance with the rules and procedures of DTC and the
provisions of Section 3.06. Beneficial interests in the U.S. Global
Certificate or an Offshore Global Certificate shall be (or, under the Related
Pass Through Trust Agreement, may have been) delivered to all beneficial
owners in the form of U.S. Physical Certificates or Offshore Physical
Certificates, as the case may be, if (i) the Company notifies the Trustee in
writing that DTC is unwilling or unable to discharge properly its
responsibilities as depositary for the U.S. Global Certificate or such
Offshore Global Certificate, as the case may be, and the Company is unable to
locate a qualified successor depositary within 90 days of such notice or (ii)
after the occurrence of an Event of Default, beneficial owners of the U.S.
Global Certificate or Offshore Global Certificates evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in the
Trust, by Direction of such Certificateholders delivered to the Company and
the Trustee, advise the Company, the Trustee and DTC through its Clearing
Agency Participants in writing that the continuation of a book-entry system
through DTC is no longer in the best interests of the Certificateholders,
then the Trustee shall notify all owners of beneficial interests in the U.S.
Global Certificate or an Offshore Global Certificate, through DTC, of the
occurrence of any such event and the availability of definitive Certificates.
(c) Any beneficial interest in one of the Global Certificates that
is transferred to a Person who takes delivery in the form of an interest in
the other Global Certificate will, upon such transfer, cease to be an
interest in such Global Certificate and become an interest in another
23
Global Certificate and, accordingly, will thereafter be subject to all
transfer restrictions, if any, and other procedures applicable to beneficial
interests in such other Global Certificate for as long as it remains such an
interest.
(d) In connection with the transfer of the entire U.S. Global
Certificate or an entire Offshore Global Certificate to the beneficial owners
thereof pursuant to paragraph (b) of this Section 3.05, such U.S. Global
Certificate or Offshore Global Certificate, as the case may be, shall be
deemed to be surrendered to the Trustee for cancellation, and the Trustee
shall execute, authenticate and deliver, to each beneficial owner identified
by DTC in exchange for its beneficial interest in such U.S. Global
Certificate or Offshore Global Certificate, as the case may be, an equal
aggregate principal amount of U.S. Physical Certificates or Offshore Physical
Certificates, as the case may be, of authorized denominations.
(e) Any U.S. Physical Certificate delivered in exchange for an
interest in the U.S. Global Certificate pursuant to paragraph (b) of this
Section 3.05 shall, except as otherwise provided by paragraph (f) of Section
3.06, bear the Private Placement Legend.
(f) Any Offshore Physical Certificate delivered in exchange for an
interest in an Offshore Global Certificate pursuant to paragraph (b) of this
Section shall, except as otherwise provided by paragraph (f) of Section 3.06,
bear the applicable legend regarding transfer restrictions set forth in
Section 3.02(a).
(g) The registered holder of the U.S. Global Certificate or any
Offshore Global Certificate may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under
this Agreement or the Certificates.
Section 3.06. Special Transfer Provisions. Unless and until (i) an
Initial Certificate is sold under an effective Shelf Registration Statement,
or (ii) an Initial Certificate is exchanged for an Exchange Certificate
pursuant to an effective Exchange Offer Registration Statement, in each case
pursuant to the terms of the Registration Rights Agreement, the following
provisions shall apply to the Initial Certificates:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of an Initial Certificate to any Institutional Accredited
Investor which is not a QIB (excluding transfers to, or on or after the
Regulation S Restricted Date, by Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Initial
Certificate, whether or not such Initial Certificate bears the Private
Placement Legend, if (x) the requested transfer is at least two years
after the later of the original issue date of the Initial Certificates
and the last date on which such Certificate was held by the Company or
any affiliate thereof or (y) the proposed transferee has delivered to
the Registrar a letter
25
substantially in the form of Exhibit B hereto and the aggregate
principal amount of the Initial Certificates being transferred is at
least $100,000.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Certificate or, at a date prior
to the Regulation S Restricted Date, an Offshore Global Certificate,
upon receipt by the Registrar of (x) the documents, if any, required by
paragraph (i) and (y) instructions given in accordance with DTC's and
the Registrar's procedures, the Registrar shall reflect on its books and
records the date of the transfer and a decrease in the principal amount
of such U.S. Global Certificate in an amount equal to the principal
amount of the beneficial interest in such U.S. Global Certificate to be
transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver to the transferor or at its direction, one or
more U.S. Physical Certificates of like tenor and amount.
(b) Transfers to QIBS. The following provisions shall apply with
respect to the registration of any proposed transfer of an Initial
Certificate to a QIB (excluding Non-U.S. Persons):
(i) If the Initial Certificate to be transferred consists of U.S.
Physical Certificates or an interest in any Offshore Global Certificate
prior to the Regulation S Restricted Date, the Registrar shall register
the transfer if such transfer is being made by a proposed transferor who
has checked the box provided for on the form of U.S. Physical
Certificate or delivered a certificate to the Trustee in the form of
Exhibit E hereto stating, or has otherwise advised the Trustee and the
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who, in the case of a transfer
of a U.S. Physical Certificate, has signed the certification provided
for on the form of Initial Certificate and, in the case of an Offshore
Global Certificate transferred prior to the Regulation S Restricted
Date, who has signed the certification provided for in Exhibit E hereto,
stating, or has otherwise advised the Trustee and the Registrar in
writing, that it is purchasing the Initial Certificate for its own
account or an account with respect to which it exercises sole investment
discretion and that it, or the Person on whose behalf it is acting with
respect to any such account, is a QIB within the meaning of Rule 144A,
and is aware that the sale to it is being made in reliance on Rule 144A
and has been advised of the applicable transfer restrictions relating to
the Initial Certificates and acknowledges that it has received such
information regarding the Trust and/or the Company as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A.
(ii) Upon receipt by the Registrar of the documents referred to in
clause (i) above and instructions given in accordance with DTC's and the
Registrar's procedures therefor, the Registrar shall reflect on its
books and records the date of such transfer and an increase in the
principal amount of the U.S. Global Certificate in an amount equal to
the principal amount of the U.S. Physical Certificates or interests in
the Offshore Global
25
Certificate, as the case may be, being transferred, and the Trustee shall
cancel such U.S. Physical Certificates or decrease the amount of such
Offshore Global Certificate so transferred.
(c) Transfers of Interests in the Offshore Global Certificate on or
after the Regulation S Restricted Date. The Registrar shall register any
transfer of interests in the Offshore Global Certificate on or after the
Regulation S Restricted Date without requiring any additional certification.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any registration of any transfer of an
Initial Certificate to a Non-U.S. Person:
(i) The Registrar shall register any proposed transfer of a U.S.
Global Certificate or U.S. Physical Certificate to any Non-U.S. Person,
upon receipt of a certificate substantially in the form of Exhibit A
hereto from the proposed transferor. The Registrar shall promptly send a
copy of such certificate to the Company.
(ii) (A) Upon receipt by the Registrar of (x) the documents, if
any, required by paragraph (c) and (y) instructions in accordance with
DTC's and the Registrar's procedures, the Registrar shall reflect on its
books and records the date of such transfer and shall cancel the
Physical Certificate, if any, so transferred, or decrease the principal
amount of any such U.S. Global Certificate in an amount equal to the
principal amount of the beneficial interest in such U.S. Global
Certificate to be transferred, and (B) upon receipt by the Registrar of
instructions given in accordance with DTC's and the Registrar's
procedures, the Registrar shall reflect on its books and records the
date and an increase in the principal amount of the Offshore Global
Certificate in an amount equal to the principal amount of the U.S.
Physical Certificate or the U.S. Global Certificate, as the case may be,
to be transferred, and the Trustee shall cancel the Physical
Certificate, if any, so transferred or decrease the amount of such U.S.
Global Certificate.
(e) Private Placement Legend. Upon the transfer, exchange or
replacement of Certificates not bearing the Private Placement Legend, the
Registrar shall deliver Certificates that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Certificates bearing
the Private Placement Legend, the Registrar shall deliver only Certificates
that bear the Private Placement Legend unless either (i) the circumstances
contemplated by paragraph (a)(i)(x) or (e)(ii) of this Section 3.06 exist or
(ii) there is delivered to the Registrar an Opinion of Counsel to the effect
that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the
Securities Act.
(f) General. By its acceptance of any Certificate bearing the
Private Placement Legend, each Holder of such a Certificate acknowledges the
restrictions on transfer of such Certificate set forth in this Agreement and
agrees that it will transfer such Certificate only as provided in this
Agreement. The Registrar shall not register a transfer of any Certificate
26
unless such transfer complies with the restrictions on transfer of such
Certificate set forth in this Agreement. In connection with any transfer of
Certificates, each Certificateholder agrees by its acceptance of the
Certificates to furnish the Registrar or the Trustee such certifications,
legal opinions or other information as either of them may reasonably require
to confirm that such transfer is being made pursuant to an exemption from, or
a transaction not subject to, the registration requirements of the Securities
Act; provided that the Registrar shall not be required to determine the
sufficiency of any such certifications, legal opinions or other information.
Until such time as no Certificates remain Outstanding, the
Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 3.05 or this Section 3.06. The
Trustee, if not the Registrar at such time, shall have the right to inspect
and make copies of all such letters, notices or other written communications
at any reasonable time upon the giving of reasonable written notice to the
Registrar.
Section 3.07. Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Registrar, or the
Registrar receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate, and (b) there is delivered to the Registrar and the
Trustee such security, indemnity or bond, as may be required by them to save
each of them harmless, then, in the absence of notice to the Registrar or the
Trustee that such destroyed, lost or stolen Certificate has been acquired by
a protected purchaser, and provided that the requirements of Section 8-405 of
the Uniform Commercial Code in effect in any applicable jurisdiction are met,
the Trustee shall execute, authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate or Certificates, in authorized denominations and of like
Fractional Undivided Interest.
In connection with the issuance of any new Certificate under this
Section 3.07, the Trustee shall require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee and the Registrar) connected therewith. Any duplicate Certificate
issued pursuant to this Section 3.07 shall constitute conclusive evidence of
the appropriate Fractional Undivided Interest in the related Trust, as if
originally issued, whether or not the lost stolen or destroyed Certificate
shall be found at any time.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Certificates.
27
Section 3.08. Persons Deemed Owners. Prior to due presentment of a
Certificate for registration of transfer, the Trustee, the Registrar, and any
Paying Agent of the Trustee may treat the Person in whose name any
Certificate is registered (as of the day of determination) as the owner of
such Certificate for the purpose of receiving distributions pursuant to
Section 4.02 and for all other purposes whatsoever, and neither the Trustee,
the Registrar, nor any Paying Agent of the Trustee shall be affected by any
notice to the contrary.
Section 3.09. Cancellation. All Certificates surrendered for
payment or transfer or exchange shall, if surrendered to any Person party
hereto other than the Registrar, be delivered to the Registrar for
cancellation. No Certificates shall be authenticated in lieu of or in
exchange for any Certificates cancelled as provided in this Section, except
as expressly permitted by this Agreement. All cancelled Certificates held by
the Registrar shall be destroyed and a certification of their destruction
delivered to the Trustee.
Section 3.10. Limitation of Liability for Payments. All payments or
distributions made to Certificateholders shall be made only from the Trust
Property and only to the extent that the Trustee shall have sufficient income
or proceeds from the Trust Property to make such payments in accordance with
the terms of Article IV of this Agreement. Each Certificateholder, by its
acceptance of a Certificate, agrees that it will look solely to the income
and proceeds from the Trust Property for any payment or distribution due to
such Certificateholder pursuant to the terms of this Agreement and that it
will not have any recourse to the Company, the Trustee, the Loan Trustee, the
Liquidity Provider, the Policy Provider, the Owner Trustees or the Owner
Participants, except as otherwise expressly provided herein or in the
Intercreditor Agreement. The Company is a party to this Agreement solely for
purposes of meeting the requirements of the Trust Indenture Act.
Section 3.11. Temporary Certificates. Until definitive Certificates
are ready for delivery, the Trustee shall authenticate temporary
Certificates. Temporary Certificates shall be substantially in the form of
definitive Certificates but may have insertions, substitutions, omissions and
other variations determined to be appropriate by the officers executing the
temporary Certificates, as evidenced by their execution of such temporary
Certificates. If temporary Certificates are issued, the Trustee will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee designated for such
purpose pursuant to Section 7.11, without charge to the Certificateholder.
Upon surrender for cancellation of any one or more temporary Certificates,
the Trustee shall execute, authenticate and deliver in exchange therefor a
like face amount of definitive Certificates of authorized denominations.
Until so exchanged, the temporary Certificates shall be entitled to the same
benefits under this Agreement as definitive Certificates.
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ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account.
(a) The Trustee shall maintain on behalf of the Certificateholders
a Certificate Account as one or more non-interest-bearing accounts. The
Trustee shall hold the Certificate Account in trust for the benefit of the
Certificateholders, and shall make or permit withdrawals therefrom only as
provided in this Agreement. On each day when a Scheduled Payment is made to
the Trustee under the Intercreditor Agreement, the Trustee, upon receipt
thereof, shall immediately deposit the aggregate amount of such Scheduled
Payment into the Certificate Account.
(b) The Trustee shall maintain on behalf of the Certificateholders
a Special Payments Account as one or more accounts, which shall be
non-interest-bearing except as provided in Section 4.04. The Trustee shall
hold the Special Payments Account in trust for the benefit of the
Certificateholders, and shall make or permit withdrawals therefrom only as
provided in this Agreement. On each day when one or more Special Payments are
made to the Trustee under the Intercreditor Agreement, the Trustee, upon
receipt thereof, shall immediately deposit the aggregate amount of such
Special Payments into the Special Payments Account.
(c) The Trustee shall cause the Subordination Agent to present to
the Loan Trustee to which an Equipment Note relates such Equipment Note on
the date of its stated final maturity or, in the case of any Equipment Note
which is to be redeemed in whole pursuant to the relevant Indenture, on the
applicable redemption date under such Indenture.
Section 4.02. Distributions from Certificate Account and Special
Payments Account.
(a) On each Regular Distribution Date or as soon thereafter as the
Trustee has confirmed receipt of the payment of all or any part of the
Scheduled Payments due on such date, the Trustee shall distribute out of the
Certificate Account the entire amount deposited therein pursuant to Section
4.01 (a). There shall be so distributed to each Certificateholder of record
on the Record Date with respect to such Regular Distribution Date (other than
as provided in Section 11.01 concerning the final distribution), by check
mailed to such Certificateholder at the address appearing in the Register,
such Certificateholder's pro rata share (based on the aggregate Fractional
Undivided Interest in the Trust held by such Certificateholder) of the
aggregate amount in the Certificate Account, except that, with respect to
Certificates registered on the Record Date in the name of the nominee of DTC
(initially, such nominee to be Cede & Co.), such distribution shall be made
by wire transfer in immediately available funds to the account designated by
such nominee.
29
(b) On each Special Distribution Date with respect to any Special
Payment or as soon thereafter as the Trustee has confirmed receipt of any
Special Payments due on the Equipment Notes or realized upon the sale of such
Equipment Notes, the Trustee shall distribute out of the Special Payments
Account the entire amount deposited therein pursuant to Section 4.01(b) of
such Special Payment. There shall be so distributed to each Certificateholder
of record on the Record Date with respect to such Special Distribution Date
(other than as provided in Section 11.01 concerning the final distribution),
by check mailed to such Certificateholder at the address appearing in the
Register, such Certificateholder's pro rata share (based on the aggregate
Fractional Undivided Interest in the Trust held by such Certificateholder) of
the aggregate amount in the Special Payments Account on account of such
Special Payment, except that, with respect to Certificates registered on the
Record Date in the name of the nominee of DTC (initially, such nominee to be
Cede & Co.), such distribution shall be made by wire transfer in immediately
available funds to the account designated by such nominee.
(c) The Trustee shall, at the expense of the Company, cause notice
of each Special Payment to be mailed to each Certificateholder at his address
as it appears in the Register. In the event of redemption or purchase of
Equipment Notes held in the Trust, such notice shall be mailed not less than
20 days prior to the date any such Special Payment is scheduled to be
distributed. In the event the Company is required to pay a Special Redemption
Premium to the Trustee under the Note Purchase Agreement, such notice shall
be mailed, together with the notice by the Escrow Paying Agent under Section
2.06 of the Escrow Agreement, not less than 20 days prior to the Special
Distribution Date for such amount, which Special Distribution Date shall be
the Final Withdrawal Date. In the case of any other Special Payments, such
notice shall be mailed as soon as practicable after the Trustee has confirmed
that it has received funds for such Special Payment, stating the Special
Distribution Date for such Special Payment which shall occur not less than 20
days after the date of such notice and as soon as practicable thereafter.
Notices mailed by the Trustee shall set forth:
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 11.01),
(ii) the amount of the Special Payment for each $1,000 face amount
Certificate and the amount thereof constituting principal, premium, if
any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a Regular
Distribution Date for the Certificates, the total amount to be received
on such date for each $1,000 face amount Certificate.
If the amount of (i) premium, if any, payable upon the redemption
or purchase of an Equipment Note or (ii) the Special Redemption Premium, if
any, has not been calculated at the time that the Trustee mails notice of a
Special Payment, it shall be sufficient if the notice sets
30
forth the other amounts to be distributed and states that any premium
received will also be distributed.
If any redemption of the Equipment Notes held in the Trust is
cancelled, the Trustee, as soon as possible after learning thereof, shall
cause notice thereof to be mailed to each Certificateholder at its address as
it appears on the Register.
Section 4.03. Statements to Certificateholders.
(a) On each Regular Distribution Date and Special Distribution
Date, the Trustee will include with each distribution to Certificateholders a
statement, giving effect to such distribution to be made on such Regular
Distribution Date or Special Distribution Date, as the case may be, setting
forth the following information (in the case of a Special Payment, including
any Special Redemption Premium, reflecting in part the information provided
by the Escrow Paying Agent under the Escrow Agreement) (per a $1,000 face
amount Certificate as to clauses (ii), (iii), (iv) and (v) below):
(i) the aggregate amount of funds distributed on such Distribution
Date hereunder and under the Escrow Agreement, indicating the amount
allocable to each source including any portion thereof paid by the
Liquidity Provider and/or the Policy Provider;
(ii) the amount of such distribution allocable to principal and the
amount allocable to premium (including any Special Redemption Premium),
if any;
(iii) the amount of such distribution hereunder allocable to
interest;
(iv) the amount of such distribution under the Escrow Agreement
allocable to interest on the Deposits;
(v) the amount of such distribution under the Escrow Agreement
allocable to the principal of the unused Deposits; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Certificates registered in the name of a
Clearing Agency or its nominee, on the Record Date prior to each Distribution
Date, the Trustee will request from the Clearing Agency a securities position
listing setting forth the names of all the Clearing Agency Participants
reflected on the Clearing Agency's books as holding interests in the
Certificates on such Record Date. On each Distribution Date, the Trustee will
mail to each such Clearing Agency Participant the statement described above
and will make available additional copies as requested by such Clearing
Agency Participant for forwarding to holders of Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the
Trustee shall furnish to each Person who at any
31
time during such calendar year was a Certificateholder of record a statement
containing the sum of the amounts determined pursuant to clauses (a)(i)
through (a)(v), inclusive, above with respect to the Trust for such calendar
year or, in the event such Person was a Certificateholder of record during a
portion of such calendar year, for the applicable portion of such year, and
such other items as are readily available to the Trustee and which a
Certificateholder shall reasonably request as necessary for the purpose of
such Certificateholder's preparation of its federal income tax returns. With
respect to Certificates registered in the name of a Clearing Agency or its
nominee, such report and such other items shall be prepared on the basis of
information supplied to the Trustee by the Clearing Agency Participants and
shall be delivered by the Trustee to such Clearing Agency Participants to be
available for forwarding by such Clearing Agency Participants.
(c) Promptly following (i) the Transfer Date, if there has been any
change in the information set forth in clauses (x), (y) and (z) below from
that set forth on pages 86 and AIII-1 of the Offering Memorandum, and (ii)
any early redemption or purchase of, or any default in the payment of
principal or interest in respect of, any of the Equipment Notes held in the
Trust, or any Final Withdrawal, the Trustee shall furnish to
Certificateholders of record on such date a statement setting forth (x) the
expected Pool Balances for each subsequent Regular Distribution Date
following the Delivery Period Termination Date, (y) the related Pool Factors
for such Regular Distribution Dates and (z) the expected principal
distribution schedule of the Equipment Notes, in the aggregate, held as Trust
Property at the date of such notice. With respect to the Certificates
registered in the name of a Clearing Agency or its nominee, on the Transfer
Date, the Trustee will request from the Clearing Agency a securities position
listing setting forth the names of all the Clearing Agency Participants
reflected on the Clearing Agency's books as holding interests in the
"Certificates" (as defined in the Related Pass Through Trust Agreement) on
the Delivery Period Termination Date. The Trustee will mail to each such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant
for forwarding to holders of Certificates.
Section 4.04. Investment of Special Payment Moneys. Any money
received by the Trustee pursuant to Section 4.01(b) representing a Special
Payment which is not to be promptly distributed shall, to the extent
practicable, be invested in Permitted Investments by the Trustee (and such
Permitted Investments shall be registered in the name of the Trustee) as
directed in writing by the Company pending distribution of such Special
Payment pursuant to Section 4.02. Any investment made pursuant to this
Section 4.04 shall be in such Permitted Investments having maturities not
later than the date that such moneys are required to be used to make the
payment required under Section 4.02 on the applicable Special Distribution
Date and the Trustee shall hold any such Permitted Investments until
maturity. The Trustee shall have no liability with respect to any investment
made pursuant to this Section 4.04, other than by reason of the willful
misconduct or negligence of the Trustee. All income and earnings from such
investments shall be distributed on such Special Distribution Date as part of
such Special Payment.
32
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence. The Company, at
its own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights
and franchises, except as otherwise specifically permitted in Section 5.02;
provided, however, that the Company shall not be required to preserve any
right or franchise if the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company.
Section 5.02. Consolidation, Merger, Etc. The Company shall not
consolidate with or merge into any other corporation or convey, transfer or
lease substantially all of its assets as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer
or lease substantially all of the assets of the Company as an entirety
shall be organized and validly existing under the laws of the United
States of America or any state thereof or the District of Columbia and a
"citizen of the United States" (as defined in Section 40102(a)(15) of
Title 49 of the United States Code) holding an air carrier operating
certificate issued by the Federal Aviation Administration, or any
successor agency thereto (the "FAA"), pursuant to Xxxxxxx 000 xx Xxxxx
00, Xxxxxx Xxxxxx Code, authorizing the operation in air transportation
of aircraft capable of carrying 10 or more individuals or 6,000 pounds
or more of cargo pursuant to Part 121 of the FAA's regulations (14 CFR
Part 121);
(b) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer
or lease substantially all of the assets of the Company as an entirety
shall execute and deliver to the Trustee a duly authorized, valid,
binding and enforceable agreement in form and substance reasonably
satisfactory to the Trustee containing an assumption by such successor
corporation or Person of the due and punctual performance and observance
of each covenant and condition of the Note Documents, the Note Purchase
Agreement, the Other Pass Through Trust Agreements and this Agreement to
be performed or observed by the Company;
(c) immediately after giving effect to such transaction, no Event
of Default applicable to the Certificates shall have occurred and be
continuing; and
(d) the Company shall have delivered to the Trustee an Officers'
Certificate of the Company and an Opinion of Counsel of the Company
(which may be the Company's General Counsel) reasonably satisfactory to
the Trustee, each stating that such consolidation, merger, conveyance,
transfer or lease and the assumption agreement
33
mentioned in clause (b) above comply with this Section 5.02 and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
Upon any consolidation or merger, or any conveyance, transfer or
lease of substantially all of the assets of the Company as an entirety in
accordance with this Section 5.02, the successor corporation or Person formed
by such consolidation or into which the Company is merged or to which such
conveyance, offer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Agreement
with the same effect as if such successor corporation or Person had been
named as the Company herein. No such conveyance, transfer or lease of
substantially all of the assets of the Company as an entirety shall have the
effect of releasing the Company or any successor corporation or Person which
shall theretofore have become such in the manner prescribed in this Section
5.02 from its liability in respect of this Agreement, the Note Purchase
Agreement or any Note Document to which it is a party.
Section 5.03. Rule 144A(d)(4) Information. So long as any of the
Certificates are "restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act, at any time when the Guarantor is neither subject
to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), the Company and the Guarantor will provide to any
holder of such restricted securities, or to any prospective purchaser of such
restricted securities designated by a holder, upon the request of such holder
or prospective purchaser, any information required to be delivered to holders
and prospective purchasers of the Certificates pursuant to Rule 144A(d)(4)
under the Securities Act.
ARTICLE VI
DEFAULT
Section 6.01. Events of Default.
(a) Exercise of Remedies. Upon the occurrence and during the
continuation of any Indenture Default under any Indenture, the Trustee may,
to the extent it is the Controlling Party at such time (as determined
pursuant to the Intercreditor Agreement), direct the exercise of remedies as
provided in the Intercreditor Agreement.
(b) Purchase Rights of Certificateholders. By acceptance of its
Certificate, each Certificateholder agrees that at any time after the
occurrence and during the continuation of a Triggering Event:
(i) each Class C Certificateholder shall have the right to purchase
all, but not less than all, of the Certificates upon ten days' written
notice to the Trustee and each other Class C Certificateholder, provided
that (A) if prior to the end of such ten-day
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period any other Class C Certificateholder notifies such purchasing
Class C Certificateholder that such other Class C Certificateholder
wants to participate in such purchase, then such other Class C
Certificateholder may join with the purchasing Class C Certificateholder
to purchase all, but not less than all, of the Certificates pro rata
based on the Fractional Undivided Interest in the Class C Trust held by
each such Class C Certificateholder and (B) if prior to the end of such
ten-day period any other Class C Certificateholder fails to notify the
purchasing Class C Certificateholder of such other Class C
Certificateholder's desire to participate in such a purchase, then such
other Class C Certificateholder shall lose its right to purchase the
Certificates pursuant to this Section 6.01(b);
(ii) each Class D Certificateholder shall have the right (which
shall not expire upon any purchase of the Certificates pursuant to
clause (i) above) to purchase all, but not less than all, of the
Certificates and the Class C Certificates upon ten days' written notice
to the Trustee, the Class C Trustee and each other Class D
Certificateholder, provided that (A) if prior to the end of such ten-day
period any other Class D Certificateholder notifies such purchasing
Class D Certificateholder that such other Class D Certificateholder
wants to participate in such purchase, then such other Class D
Certificateholder may join with the purchasing Class D Certificateholder
to purchase all, but not less than all, of the Certificates and the
Class C Certificates pro rata based on the Fractional Undivided Interest
in the Class D Trust, taken as a whole, held by each such Class D
Certificateholder and (B) if prior to the end of such ten-day period any
other Class D Certificateholder fails to notify the purchasing Class D
Certificateholder of such other Class D Certificateholder's desire to
participate in such a purchase, then such other Class D
Certificateholder shall lose its right to purchase the Certificates
pursuant to this Section 6.01(b); and
(iii) whether or not any Class C Certificateholder or Class D
Certificateholder exercises their right to purchase pursuant to clause
(i) or (ii) above, Ambac, if it is then the Controlling Party and 180
days have since elapsed since the occurrence of a Triggering Event that
is continuing, shall have the right (except in the event of a Policy
Provider Default) to purchase all, but not less than all, of the
Certificates upon ten days' written notice to the Trustee and the
Certificateholders.
The purchase price with respect to the Certificates shall be equal
to the Pool Balance of the Certificates, together with accrued and unpaid
interest thereon to the date of such purchase, without premium, but including
any other amounts then due and payable to the Certificateholders under this
Agreement, the Intercreditor Agreement, the Escrow Agreement, the Policy, the
Note Purchase Agreement or any Note Document or on or in respect of the
Certificates; provided, however, that (i) if such purchase occurs after the
Record Date with respect to the Final Withdrawal Date, such purchase price
shall be reduced by the aggregate amount of unused Deposits and interest to
be distributed under the Escrow Agreement (which deducted amounts shall
remain distributable to, and may be retained by, the Certificateholder as
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of such Record Date) and (ii) if such purchase occurs after a Record Date but
prior to the Distribution Date relating to such Record Date, such purchase
price shall be reduced by the amount to be distributed hereunder on such
related Distribution Date (which deducted amounts shall remain distributable
to, and may be retained by, the Certificateholder as of such Record Date);
provided, further, that no such purchase of Certificates shall be effective
unless the purchaser shall certify to the Trustee that contemporaneously with
such purchase, such purchaser is purchasing, pursuant to the terms of this
Agreement and the Other Pass Through Trust Agreement, the Certificates, and
the Class C Certificates and the Class D Certificates which are senior to the
securities held by such purchaser. Each payment of the purchase price of the
Certificates referred to in the first sentence hereof shall be made to an
account or accounts designated by the Trustee and each such purchase shall be
subject to the terms of this Section. Each Certificateholder agrees by its
acceptance of its Certificate that it will, subject to Section 3.04 hereof,
upon payment from such Class C Certificateholder(s) or Class D
Certificateholder(s), as the case may be, of the purchase price set forth in
the first sentence of this paragraph, forthwith sell, assign, transfer and
convey to the purchaser thereof (without recourse, representation or warranty
of any kind except for its own acts), all of the right, title, interest and
obligation of such Certificateholder in, this Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity
Facility, the Policy, the Note Documents, the Note Purchase Agreement and all
Certificates and Escrow Receipts held by such Certificateholder (excluding
all right, title and interest under any of the foregoing to the extent such
right, title or interest is with respect to an obligation not then due and
payable as respects any action or inaction or state of affairs occurring
prior to such sale) and the purchaser shall assume all of such
Certificateholder's obligations under this Agreement, the Escrow Agreement,
the Deposit Agreement, the Intercreditor Agreement, the Liquidity Facility,
the Policy, the Note Documents and the Note Purchase Agreement and all such
Certificates and Escrow Receipts. The Certificates will be deemed to be
purchased on the date payment of the purchase price is made notwithstanding
the failure of the Certificateholders to deliver any Certificates (whether in
the form of Physical Certificates or beneficial interests in Global
Certificates) and, upon such a purchase, (i) the only rights of the
Certificateholders will be to deliver the Certificates to the purchaser and
receive the purchase price for such Certificates and (ii) if the purchaser
shall so request such Certificateholder will comply with all of the
provisions of Section 3.04 hereof to enable new Certificates to be issued to
the purchaser in such denominations as it shall request. All charges and
expenses in connection with the issuance of any such new Certificates shall
be borne by the purchaser thereof.
As used in this Section 6.01(b), the terms "Class C Certificate",
"Class C Certificateholder", "Class C Trust", "Class C Trustee", "Class D
Certificate", "Class D Trust" and "Class D Trustee", shall have the
respective meanings assigned to such terms in the Intercreditor Agreement.
Section 6.02. Incidents of Sale of Equipment Notes. Upon any sale
of all or any part of the Equipment Notes made either under the power of sale
given under this Agreement or otherwise for the enforcement of this
Agreement, the following shall be applicable:
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(1) Certificateholders and Trustee May Purchase Equipment Notes.
Any Certificateholder, the Trustee in its individual or any other
capacity or any other Person may bid for and purchase any of the
Equipment Notes, and upon compliance with the terms of sale, may hold,
retain, possess and dispose of such Equipment Notes in their own
absolute right without further accountability.
(2) Receipt of Trustee Shall Discharge Purchaser. The receipt of
the Trustee or of the officer making such sale shall be a sufficient
discharge to any purchaser for his purchase money, and, after paying
such purchase money and receiving such receipt, such purchaser or its
personal representative or assigns shall not be obliged to see to the
application of such purchase money, or be in any way answerable for any
loss, misapplication or non-application thereof.
(3) Application of Moneys Received upon Sale. Any moneys collected
by the Trustee upon any sale made either under the power of sale given
by this Agreement or otherwise for the enforcement of this Agreement
shall be applied as provided in Section 4.02.
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee
May Bring Suit. If there shall be a failure to make payment of the principal
of, premium, if any, or interest on any Equipment Note, or if there shall be
any failure to pay Rent (as defined in the relevant Lease) under any Lease
when due and payable, then the Trustee, in its own name, and as trustee of an
express trust, as holder of such Equipment Notes, to the extent permitted by
and in accordance with the terms of the Intercreditor Agreement and the
rights of the Controlling Party thereunder, the Note Purchase Agreement and
the Note Documents (subject to the rights of the applicable Owner Trustee or
Owner Participant to cure any such failure to pay principal of, or premium,
if any, or interest on any Equipment Note or to pay Rent under any Lease in
accordance with the applicable Indenture), shall be entitled and empowered to
institute any suits, actions or proceedings at law, in equity or otherwise,
for the collection of the sums so due and unpaid on such Equipment Notes or
under such Lease and may prosecute any such claim or proceeding to judgment
or final decree with respect to the whole amount of any such sums so due and
unpaid.
Section 6.04. Control by Certificateholders. Subject to Section
6.03 and the Intercreditor Agreement and the rights of the Controlling Party
thereunder, the Certificateholders holding Certificates evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in the
Trust shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee with respect to the
Trust or pursuant to the terms of the Intercreditor Agreement, or exercising
any trust or power conferred on the Trustee under this Agreement or the
Intercreditor Agreement, including any right of the Trustee as Controlling
Party under the Intercreditor Agreement or as holder of the Equipment Notes,
provided that:
(1) such Direction shall not be in conflict with any rule of law or
with this Agreement and would not involve the Trustee in personal
liability or expense,
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(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Certificateholders not taking part
in such Direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such Direction.
Section 6.05. Waiver of Past Defaults. Subject to the Intercreditor
Agreement and the rights of the Controlling Party thereunder, the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust (i)
may on behalf of all of the Certificateholders waive any past Event of
Default hereunder and its consequences or (ii) if the Trustee is the
Controlling Party, may direct the Trustee to instruct the applicable Loan
Trustee to waive any past Indenture Default under any Indenture and its
consequences, and thereby annul any Direction given by such
Certificateholders or the Trustee to such Loan Trustee with respect thereto,
except a default:
(1) in the deposit of any Scheduled Payment or Special Payment
under Section 4.01 or in the distribution of any payment under Section
4.02 on the Certificates, or
(2) in the payment of the principal of (premium, if any) or
interest on the Equipment Notes, or
(3) in respect of a covenant or provision hereof which under
Article IX hereof cannot be modified or amended without the consent of
each Certificateholder holding an Outstanding Certificate affected
thereby.
Upon any such waiver, such default shall cease to exist with
respect to the Certificates and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose and any direction given by the
Trustee on behalf of the Certificateholders to the relevant Loan Trustee
shall be annulled with respect thereto; but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any right
consequent thereon. Upon any such waiver, the Trustee shall vote the
Equipment Notes issued under the relevant Indenture to waive the
corresponding Indenture Default.
Section 6.06. Right of Certificateholders to Receive Payments Not
to Be Impaired. Anything in this Agreement to the contrary notwithstanding,
including, without limitation, Section 6.07 hereof, but subject to the
Intercreditor Agreement, the right of any Certificateholder to receive
distributions of payments required pursuant to Section 4.02 hereof on the
Certificates when due, or to institute suit for the enforcement of any such
payment on or after the applicable Regular Distribution Date or Special
Distribution Date, shall not be impaired or affected without the consent of
such Certificateholder.
Section 6.07. Certificateholders May Not Bring Suit Except Under
Certain Conditions. A Certificateholder shall not have the right to institute
any suit, action or proceeding
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at law or in equity or otherwise with respect to this Agreement, for the
appointment of a receiver or for the enforcement of any other remedy under
this Agreement, unless:
(1) such Certificateholder previously shall have given written
notice to the Trustee of a continuing Event of Default;
(2) Certificateholders holding Certificates evidencing Fractional
Undivided Interests aggregating not less than 25% of the Trust shall
have requested the Trustee in writing to institute such action, suit or
proceeding and shall have offered to the Trustee indemnity as provided
in Section 7.02(e);
(3) the Trustee shall have refused or neglected to institute such
an action, suit or proceeding for 60 days after receipt of such notice,
request and offer of indemnity; and
(4) no Direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust.
It is understood and intended that no one or more of the
Certificateholders shall have any right in any manner whatsoever hereunder or
under the Certificates to (i) surrender, impair, waive, affect, disturb or
prejudice any property in the Trust Property or the lien of any Indenture on
any property subject thereto, or the rights of the Certificateholders or the
holders of the related Equipment Notes, (ii) obtain or seek to obtain
priority over or preference with respect to any other such Certificateholder
or (iii) enforce any right under this Agreement, except in the manner herein
provided and for the equal, ratable and common benefit of all the
Certificateholders subject to the provisions of this Agreement.
Section 6.08. Remedies Cumulative. Every remedy given hereunder to
the Trustee or to any of the Certificateholders shall not be exclusive of any
other remedy or remedies, and every such remedy shall be cumulative and in
addition to every other remedy given hereunder or now or hereafter given by
statute, law, equity or otherwise.
Section 6.09. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Agreement, or in any suit
against the Trustee for any action taken, suffered or omitted by it as
Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any
such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to
make such an assessment in any suit instituted by the Company or the
Guarantor.
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ARTICLE VII
THE TRUSTEE
Section 7.01. Notice of Defaults. As promptly as practicable after,
and in any event within 90 days after the occurrence of any default (as such
term is defined below) hereunder actually known to the Trustee, the Trustee
shall transmit by mail to the Company, the related Owner Trustees, the
related Loan Trustees and the Certificateholders in accordance with Section
313(c) of the Trust Indenture Act, notice of such default hereunder actually
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of
the principal of (premium, if any) or interest on any Equipment Note, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Certificateholders. For
the purpose of this Section, the term "default" means any event that is, or
after notice or lapse of time or both would become, an Event of Default.
Section 7.02. Certain Rights of Trustee. Subject to the provisions
of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Request;
(c) whenever in the administration of this Agreement or the
Intercreditor Agreement the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate of the Company, any Owner Trustee or
any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement or the Intercreditor
Agreement at the request or direction of any of the Certificateholders
pursuant to this Agreement or the Intercreditor Agreement unless such
Certificateholders shall have offered to the Trustee reasonable
40
security or indemnity against the cost, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, or report, notice, request, direction, consent,
order, bond, debenture or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this
Agreement or the Intercreditor Agreement or perform any duties under
this Agreement or the Intercreditor Agreement either directly or by or
through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it under this Agreement or the Intercreditor
Agreement;
(h) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in
interest in the Trust relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement or the Intercreditor Agreement;
(i) the Trustee shall not be required to expend or risk its own
funds in the performance of any of its duties under this Agreement, or
in the exercise of any of its rights or powers, if it shall have reason
to believe that repayment of such funds or adequate indemnity against
such risk is not reasonably assured to it; and
(j) except during the continuance of an Event of Default, the
Trustee undertakes and shall be responsible to perform only such duties
as are specifically set forth herein and no implied covenants or
obligations shall be read into this Agreement or be enforceable against
Trustee.
Section 7.03. Not Responsible for Recitals or Issuance of
Certificates. The recitals contained herein and in the Certificates, except
the certificates of authentication, shall not be taken as the statements of
the Trustee, and the Trustee assumes no responsibility for their correctness.
Subject to Section 7.14, the Trustee makes no representations as to the
validity or sufficiency of this Agreement, the Note Purchase Agreement, any
Note Documents, any Participation Agreement or any Intercreditor Agreement,
the Deposit Agreement, the Escrow Agreement and Equipment Notes or the
Certificates, except that the Trustee hereby represents and warrants that
this Agreement has been, and each Certificate, the Intercreditor Agreement,
the Registration Rights Agreement, the Note Purchase Agreement, the Escrow
Agreement and each Certificate will be, executed, authenticated and delivered
by one of its officers who is duly authorized to execute, authenticate and
deliver such document on its behalf.
41
Section 7.04. May Hold Certificates. The Trustee, any Paying Agent,
Registrar or any of their Affiliates or any other agent, in their respective
individual or any other capacity, may become the owner or pledgee of
Certificates and subject to Sections 310(b) and 311 of the Trust Indenture
Act, if applicable, may otherwise deal with the Company, the Guarantor, the
Owner Trustees or the Loan Trustees with the same rights it would have if it
were not Trustee, Paying Agent, Registrar or such other agent.
Section 7.05. Money Held in Trust. Money held by the Trustee or the
Paying Agent in trust hereunder need not be segregated from other funds
except to the extent required herein or by law and neither the Trustee nor
the Paying Agent shall have any liability for interest upon any such moneys
except as provided for herein.
Section 7.06. Compensation and Reimbursement. The Company agrees
with respect to the trustee in its individual capacity:
(1) to pay, or cause to be paid, to the Trustee compensation (as
set out in a separate fee agreement between the Trustee and the Company)
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein to reimburse, or
cause to be reimbursed, the Trustee upon its request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Agreement or the
Intercreditor Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence, willful misconduct or bad faith or as may be incurred due to
the Trustee's breach of its representations and warranties set forth in
Section 7.14;
(3) to indemnify, or cause to be indemnified, the Trustee for, and
to hold it harmless against, any loss, liability or expense (other than
for or with respect to any tax) incurred without negligence, willful
misconduct or bad faith, on its part, arising out of or in connection
with the acceptance or administration of this Trust, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder, except for any such loss, liability or expense
incurred by reason of the Trustee's breach of its representations and
warranties set forth in Section 7.14. The Trustee shall notify the
Company and the Guarantor promptly of any claim for which it may seek
indemnity. The Company and the Guarantor shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate
counsel with the consent of the Company and the Guarantor and the
Company and the Guarantor will pay the reasonable fees and expenses of
such counsel. Neither the Company nor the Guarantor need pay for any
settlement made without its consent; and
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(4) to indemnify, or cause to be indemnified, the Trustee, solely
in its individual capacity, for, and to hold it harmless against, any
tax (except to the extent the Trustee actually receives reimbursement
therefor pursuant to the next paragraph, provided that no
indemnification shall be available with respect to any tax attributable
to the Trustee's compensation for serving as such) incurred without
negligence, willful misconduct or bad faith, on its part, arising out of
or in connection with the acceptance or administration of this Trust,
including any costs and expenses incurred in contesting the imposition
of any such tax. The Trustee, in its individual capacity, shall notify
the Company and the Guarantor promptly of any claim for any tax for
which it may seek indemnity. The Trustee shall permit the Company and
the Guarantor to contest the imposition of such tax and the Trustee, in
its individual capacity, shall cooperate in the defense. The Trustee, in
its individual capacity, may have separate counsel with the consent of
the Company and the Guarantor and the Company and the Guarantor will pay
the reasonable fees and expenses of such counsel. Neither the Company
nor the Guarantor need pay for any taxes paid, in settlement or
otherwise, without its consent.
The Trustee shall be entitled to reimbursement from, and shall have
a lien prior to the Certificates upon, the Trust Property for any tax
incurred without negligence, bad faith or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of such
Trust (other than any tax attributable to the Trustee's compensation for
serving as such), including any costs and expenses incurred in contesting the
imposition of any such tax. The Trustee shall notify the Company of any claim
for any tax for which it may seek reimbursement. The Trustee shall cooperate
in the contest by the Company of any such claim. If the Trustee reimburses
itself from the Trust Property for any such tax it will within 30 days mail a
brief report setting forth the amount of such tax and the circumstances
thereof to all Certificateholders as their names and addresses appear in the
Register.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Certificates
upon the Trust Property.
Section 7.07. Corporate Trustee Required, Eligibility. There shall
at all times be a Trustee hereunder which shall be eligible to act as a
trustee under Section 310(a) of the Trust Indenture Act and shall have a
combined capital and surplus of at least $75,000,000 (or a combined capital
and surplus in excess of $5,000,000 and the obligations of which, whether now
in existence or hereafter incurred, are fully and unconditionally guaranteed
by a corporation organized and doing business under the laws of the United
States, any State or Territory thereof or of the District of Columbia that
has a combined capital and surplus of at least $75,000,000). If such
corporation publishes reports of conditions at least annually, pursuant to
law or to the requirements of federal, state, territorial or District of
Columbia supervising or examining authority, then for the purposes of this
Section 7.07, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of conditions so published.
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In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.07 to act as Trustee, the
Trustee shall resign immediately as Trustee in the manner and with the effect
specified in Section 7.08.
Section 7.08. Resignation and Removal: Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 7.09.
(b) The Trustee may resign at any time as trustee by giving written
notice thereof to the Company, the Authorized Agents, the Owner Trustees and
the Loan Trustees. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Company, the Authorized Agents, the
Owner Trustees, the Loan Trustees and the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust
delivered to the Trustee, the Company, the Owner Trustees and the Loan
Trustees.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310 of the Trust
Indenture Act after written request therefor by the Company or by any
Certificateholder who has been a bona fide Certificateholder for at
least six months; or
(2) the Trustee shall cease to be eligible under Section 7.07 and
shall fail to resign after written request therefor by the Company or by
any such Certificateholder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any case, (i) the Company may remove the Trustee or (ii) any
Certificateholder who has been a bona fide Certificateholder for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(e) If a Responsible Officer of the Trustee shall obtain actual
knowledge of an Avoidable Tax (as hereinafter defined) which has been or is
likely to be asserted, the Trustee shall promptly notify the Company and
shall, within 30 days of such notification, resign as
44
Trustee hereunder unless within such 30-day period the Trustee shall have
received notice that the Company has agreed to pay such tax. The Company
shall promptly appoint a successor Trustee in a jurisdiction where there are
no Avoidable Taxes. As used herein, an "Avoidable Tax" means a state or local
tax: (i) upon (w) the Trust, (x) the Trust Property, (y) Certificateholders
or (z) the Trustee for which the Trustee is entitled to seek reimbursement
from the Trust Property, and (ii) which would be avoided if the Trustee were
located in another state, or jurisdiction within a state, within the United
States. A tax shall not be an Avoidable Tax if the Company or any Owner
Trustee shall agree to pay, and shall pay, such tax.
(f) If the Trustee shall resign, be removed or become incapable of
acting as trustee or if a vacancy shall occur in the office of the Trustee
for any cause, the Company shall promptly appoint a successor Trustee. If,
within 90 days after such resignation, removal or incapability, or other
occurrence of such vacancy, a successor Trustee shall be appointed by
Direction of the Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in
interest in the Trust delivered to the Company, the Owner Trustees, the Loan
Trustee and the retiring Trustee, the successor Trustees so appointed shall,
with the approval of the Company, which approval shall not be unreasonably
withheld, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed as provided
above. If no successor Trustee shall have been so appointed as provided above
and accepted appointment in the manner hereinafter provided, the resigning
Trustee or any Certificateholder who has been a bona fide Certificateholder
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(g) The successor Trustee of a Trust shall give notice of the
resignation and removal of the Trustee and appointment of the successor
Trustee by mailing written notice of such event by first-class mail, postage
prepaid, to the Certificateholders as their names and addresses appear in the
Register. Each notice shall include the name of such successor Trustee and
the address of its Corporate Trust Office.
45
Section 7.09. Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall execute and deliver an
instrument transferring to such successor Trustee all such rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee,
subject nevertheless to its lien, if any, provided for in Section 7.06. Upon
request of any such successor Trustee, the Company, the retiring Trustee and
such successor Trustee shall execute and deliver any and all instruments
containing such provisions as shall be necessary or desirable to transfer and
confirm to, and for more fully and certainly vesting in, such successor
Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 7.10. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Certificates shall have
been executed or authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such execution or authentication and deliver
the Certificates so executed or authenticated with the same effect as if such
successor Trustee had itself executed or authenticated such Certificates.
Section 7.11. Maintenance of Agencies.
(a) There shall at all times be maintained an office or agency
where Certificates may be presented or surrendered for registration of
transfer or for exchange, and for payment thereof and where notices and
demands to or upon the Trustee in respect of such Certificates may be served.
Presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder with respect to the Certificates. Each such Authorized Agent shall
be a bank or trust company, shall be a corporation organized and doing
business under the laws of the United States or any state, with a combined
capital and surplus of at least $75,000,000, or a corporation having a
combined capital and surplus in excess of $5,000,000 the obligations of which
are guaranteed by a corporation organized and doing business under the laws of
the United States or any state, with a
46
combined capital and surplus of at least $75,000,000, and shall be authorized
under such laws to exercise corporate trust powers, subject to supervision by
federal or state authorities. The Trustee shall initially be the Paying Agent
and, as provided in Section 3.04, Registrar hereunder with respect to the
Certificates. Each Registrar shall furnish to the Trustee, at stated intervals
of not more than six months, and at such other times as the Trustee may
request in writing, a copy of the Register maintained by such Registrar.
(c) Any corporation into which any Authorized Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authorized Agent, shall be a party, or any corporation succeeding to the
corporate trust business of any Authorized Agent, shall be the successor of
such Authorized Agent hereunder, if such successor corporation is otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the parties hereto or such Authorized Agent or
such successor corporation.
(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Trustee, the Company, the Owner Trustees and the
Loan Trustees. The Company may, and at the request of the Trustee shall, at
any time terminate the agency of any Authorized Agent by giving written
notice of termination to such Authorized Agent and to the Trustee. Upon the
resignation or termination of an Authorized Agent or in case at any time any
such Authorized Agent shall cease to be eligible under this Section (when in
either case, no other Authorized Agent performing the functions of such
Authorized Agent shall have been appointed), the Company shall promptly
appoint one or more qualified successor Authorized Agents, reasonably
satisfactory to the Trustee, to perform the functions of the Authorized Agent
which has resigned or whose agency has been terminated or who shall have
ceased to be eligible under this Section. The Company shall give written
notice of any such appointment made by it to the Trustee, the Owner Trustees
and the Loan Trustees; and in each case the Trustee shall mail notice of such
appointment to all Certificateholders as their names and addresses appear on
the Register.
(e) The Company agrees to pay, or cause to be paid, from time to
time to each Authorized Agent reasonable compensation for its services and to
reimburse it for its reasonable expenses.
Section 7.12. Money for Certificate Payments to Be Held in Trust.
All moneys deposited with any Paying Agent for the purpose of any payment on
Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of
this Section. Moneys so deposited and held in trust shall constitute a
separate trust fund for the benefit of the Certificateholders with respect to
which such money was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon
47
the same trusts as those upon which such sums were held by such Paying Agent
and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such money.
Section 7.13. Registration of Equipment Notes in Name of
Subordination Agent. The Trustee agrees that all Equipment Notes to be
purchased by the Trust shall be issued in the name of the Subordination Agent
or its nominee and held by the Subordination Agent in trust for the benefit
of the Certificateholders, or, if not so held, the Subordination Agent or its
nominee shall be reflected as the owner of such Equipment Notes in the
register of the issuer of such Equipment Notes.
Section 7.14. Representations and Warranties of Trustee. The
Trustee hereby represents and warrants on the Transfer Date that:
(a) the Trustee is a Delaware banking corporation organized and
validly existing, and in good standing under the laws of the State of
Delaware;
(b) the Trustee has full corporate power, authority and legal right
to receive the Trust Property assigned by the Related Trustee, assume
the obligations under, and perform, the Assignment and Assumption
Agreement, this Agreement, the Intercreditor Agreement, the Registration
Rights Agreement, the Escrow Agreement, the Note Purchase Agreement and
the Note Documents to which it is a party and has taken all necessary
corporate action to authorize such receipt, assumption and performance
by it of the Assignment and Assumption Agreement, this Agreement, the
Intercreditor Agreement, the Registration Rights Agreement, the Escrow
Agreement, the Note Purchase Agreement and the Note Documents to which
it is a party;
(c) the receipt of the Trust Property under the Assignment and
Assumption Agreement and the performance by the Trustee of the
Assignment and Assumption Agreement, this Agreement, the Intercreditor
Agreement, the Registration Rights Agreement, the Escrow Agreement, the
Note Purchase Agreement and the Note Documents to which it is a party
(i) will not violate any provision of the law of the State of Delaware
or governing the banking and trust powers of the Trustee or any order,
writ, judgment, or decree of any court, arbitrator, or governmental
authority applicable to the Trustee or any of its assets, (ii) will not
violate any provision of the articles of association or by-laws of the
Trustee, or (iii) will not violate any provision of, or constitute, with
or without notice or lapse of time, a default under, or result in the
creation or imposition of any lien on any properties included in the
Trust Property pursuant to the provisions of, any mortgage, indenture,
contract, agreement or other undertaking to which it is a party, which
violation, default or lien could reasonably be expected to have an
adverse effect on the Trustee's performance or ability to perform its
duties hereunder or thereunder or on the transactions contemplated
herein or therein;
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(d) the receipt of the Trust Property under the Assignment and
Assumption Agreement and the performance by the Trustee of the
Assignment and Assumption Agreement, this Agreement, the Intercreditor
Agreement, the Registration Rights Agreement, the Escrow Agreement, the
Note Purchase Agreement and the Note Documents to which it is a party
will not require the authorization, consent, or approval of, the giving
of notice to, the filing or registration with, or the taking of any
other action in respect of, any governmental authority or agency of the
State of Delaware or the United States regulating the banking and
corporate trust activities of the Trustee; and
(e) the Assignment and Assumption Agreement has been duly executed
and delivered by the Trustee and this Agreement, the Assignment and
Assumption Agreement, this Agreement, this Agreement, the Intercreditor
Agreement, the Registration Rights Agreement, the Escrow Agreement, the
Note Purchase Agreement and the Note Documents to which it is a party
have been duly executed and delivered by the Trustee and constitute the
legal, valid, and binding agreements of the Trustee, enforceable against
it in accordance with their respective terms, provided that
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and (ii) general principles of equity, regardless of
whether applied in a proceeding at equity or at law.
Section 7.15. Withholding Taxes, Information Reporting. (a) The
Trustee, as trustee of the grantor trust created by this Agreement, shall
exclude and withhold from each distribution of principal, premium, if any,
and interest and other amounts due under this Agreement or under the
Certificates any and all federal United States withholding taxes applicable
thereto as required by law. The Trustee agrees to act as such withholding
agent and, in connection therewith, whenever any taxes or similar charges are
required to be withheld with respect to any amounts paid by or on behalf of
the Trustee in respect of the Certificates, to withhold such amounts and
timely pay the same to the authority in the name of and on behalf of the
Certificateholders, that it will file any necessary withholding tax returns
or statements when due, and that, as promptly as possible after the payment
thereof, it will deliver to each such Certificateholder necessary
documentation showing the payment thereof, together with such additional
documentary evidence as such Certificateholders may reasonably request from
time to time. The Trustee agrees to file any other information reports as it
may be required to file under United States law. In the event that any
withholding tax is imposed on a payment to a Certificateholder, such tax
shall reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section.
(b) Any Certificateholder which is organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date such
Certificateholder becomes a Certificateholder, (a) so notify the Trustee,
(b)(i) provide the Trustee with Internal Revenue Service form W-8BEN, W-8ECI,
W-8IMY or W-8EXP, or any substitute or successor form, or (ii) notify the
Trustee that it is not entitled to an exemption from United States
withholding tax
49
or a reduction in the rate thereof on payments of interest. Any such
Certificateholder agrees by its acceptance of a Trust Security, on an ongoing
basis, to provide like certification should any previously provided form
become invalid and to notify the Trustee should subsequent circumstances
arise affecting the information provided the Trustee in clauses (a) and (b)
above. The Trustee shall be fully protected in relying upon, and each
Certificateholder by its acceptance of a Security agrees to indemnify and
hold the Trustee harmless against all claims or liability of any kind arising
in connection with or related to the Trustee's reliance upon any documents,
forms or information provided by any Certificateholder to the Trustee. In
addition, if the Trustee has not withheld taxes on any payment made to any
Certificateholder, and the Trustee is subsequently required to remit to any
taxing authority any such amount not withheld, such Certificateholder shall
return such amount to the Trustee upon written demand by the Trustee. The
Trustee shall be liable only for direct (but not consequential) damages to
any Certificateholder due to the Trustee's violation of the Code and only to
the extent such liability is caused by the Trustee's gross negligence or
willful misconduct.
(c) The Trustee may satisfy certain of its obligations with respect
to this Agreement by retaining, at the expense of the Company, a firm of
independent public accountants (the "Accountants") which shall (i) be
responsible for all tax filing requirements and (ii) perform the obligations
of the Trustee in respect of tax filing requirements. The Trustee shall be
deemed to have discharged its tax filing obligations under this Agreement
upon its retention of the Accountants, and, if the Trustee shall have
selected the Accountants in good faith and without gross negligence or with
the prior approval of or notice to the Company, the Trustee shall not have
any liability with respect to the default or misconduct of the Accountants.
(d) The Trustee, at the request and instruction of the Company,
will make such United States federal income tax elections as may be necessary
to prevent the Trust from being classified for federal income tax purposes as
an association taxable as a corporation.
Section 7.16. Trustee's Liens. The Trustee in its individual
capacity agrees that it will at its own cost and expense promptly take any
action as may be necessary to duly discharge and satisfy in full any
mortgage, pledge, lien, charge, encumbrance, security interest or claim
("Trustee's Liens") on or with respect to the Trust Property which is
attributable to the Trustee either (i) in its individual capacity and which
is unrelated to the transactions contemplated by this Agreement, the
Registration Rights Agreement, the Intercreditor Agreement, the Participation
Agreements, the Note Purchase Agreement or the Note Documents, or (ii) in its
individual capacity and which arises out of acts or omissions of the Trustee
in its individual capacity which are not contemplated by this Agreement.
Section 7.17. Preferential Collection of Claims. The Trustee shall
comply with Section 311(a) of the Trust Indenture Act, excluding any creditor
relationship listed in Section 311(b) of the Trust Indenture Act. If the
Trustee shall resign or be removed as Trustee, it shall be subject to Section
311(a) of the Trust Indenture Act to the extent provided therein.
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ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and
Addresses of Certificateholders. The Company will furnish or cause to be
furnished to the Trustee within 15 days after each Record Date with respect
to a Scheduled Payment, and at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such request, a
list, in such form as the Trustee may reasonably require, of all information
in the possession or control of the Company as to the names and addresses of
the Certificateholders, in each case as of a date not more than 15 days prior
to the time such list is furnished; provided, however, that so long as the
Trustee is the sole Registrar, no such list need be furnished; and provided
further, however, that no such list need be furnished for so long as a copy
of the Register is being furnished to the Trustee pursuant to Section 7.11.
Section 8.02. Preservation of Information; Communications to
Certificateholders. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders
contained in the most recent list furnished to the Trustee as provided in
Section 7.11 or Section 8.01, as the case may be, and the names and addresses
of Certificateholders received by the Trustee in its capacity as Registrar,
if so acting. The Trustee may destroy any list furnished to it as provided in
Section 7.11 or Section 8.01, as the case may be, upon receipt of a new list
so furnished.
Section 8.03. Reports by Trustee. Within 60 days after May 15 of
each year commencing with the first full year following the date hereof, the
Trustee shall transmit to the Certificateholders, as provided in Section
313(c) of the Trust Indenture Act, a brief report dated as of such May 15, if
required by Section 313(a) of the Trust Indenture Act.
Section 8.04. Reports by the Guarantor and Company. The Guarantor
and the Company each shall:
(a) file with the Trustee, within 30 days after the Guarantor or
the Company is required to file the same with the SEC, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may from time
to time by rules and regulations prescribe) which the Guarantor or the
Company is required to file with the SEC pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934, as amended; or, if
the Guarantor or the Company is not required to file information,
documents or reports pursuant to either of such sections, then to file
with the Trustee and the SEC, in accordance with rules and regulations
prescribed by the SEC, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
section 13 of the Securities Exchange Act of 1934, as amended, in
respect of a security listed and registered on a national securities
exchange as may be prescribed in such rules and regulations;
51
(b) file with the Trustee and the SEC, in accordance with the rules
and regulations prescribed by the SEC, such additional information,
documents and reports with respect to compliance by the Guarantor and
the Company with the conditions and covenants of the Guarantor and the
Company provided for in this Agreement, as may be required by such rules
and regulations, including, in the case of annual reports, if required
by such rules and regulations, certificates or opinions of independent
public accountants, conforming to the requirements of Section 1.02;
(c) transmit to all Certificateholders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports required to be filed
by the Guarantor and the Company pursuant to subsections (a) and (b) of
this Section 8.04 as may be required by rules and regulations prescribed
by the SEC; and
(d) furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of
the Guarantor's and the Company's compliance with all conditions and
covenants under this Agreement (it being understood that for purposes of
this paragraph (d), such compliance shall be determined without regard
to any period of grace or requirement of notice provided under this
Agreement).
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders. Without the consent of the Certificateholders, the
Guarantor and the Company may, and the Trustee (subject to Section 9.03)
shall, at any time and from time to time, enter into one or more agreements
supplemental hereto or, if applicable, to the Indenture, the Lease, the
Participation Agreement, Intercreditor Agreement, the Escrow Agreement, the
Note Purchase Agreement, the Deposit Agreement, the Registration Rights
Agreement, the Policy, the Policy Provider Agreement or the Liquidity
Facility in form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another corporation to the
Company or the Guarantor and the assumption by any such successor of the
covenants of the Company or the Guarantor contained herein or in each of
the other related documents to which the Company or the Guarantor is a
party or of the Company's or the Guarantor's obligations under the Note
Purchase Agreement, the Registration Rights Agreement, the Policy
Provider Agreement or the Liquidity Facility; or
52
(2) to add to the covenants of the Guarantor or the Company for the
benefit of the Certificateholders, or to surrender any right or power in
this Agreement, the Note Purchase Agreement, the Registration Rights
Agreement, the Policy, the Policy Provider Agreement or the Liquidity
Facility conferred upon the Guarantor or the Company; or
(3) to correct or supplement any provision in this Agreement, the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase
Agreement, the Deposit Agreement, Registration Rights Agreement, the
Policy, the Policy Provider Agreement or the Liquidity Facility which
may be defective or inconsistent with any other provision herein or
therein or to cure any ambiguity or correct any mistake or to modify any
other provision with respect to matters or questions arising under this
Agreement, the Intercreditor Agreement, the Escrow Agreement, the Note
Purchase Agreement, the Deposit Agreement, Registration Rights
Agreement, the Policy, the Policy Provider Agreement or the Liquidity
Facility, provided that any such action shall not materially adversely
affect the interests of the Certificateholders; or to cure any ambiguity
or correct any mistake in such documents, or as provided in the
Intercreditor Agreement, to give effect to or provide for a Replacement
Liquidity Facility (as defined in the Intercreditor Agreement); or
(4) to comply with any requirement of the SEC, any applicable law,
rules or regulations of any exchange or quotation system on which the
Certificates are listed, or any regulatory body or the Registration
Rights Agreement to effectuate the Exchange Offer; or
(5) to modify, eliminate or add to the provisions of this Agreement
to such extent as shall be necessary to continue the qualification of
this Agreement (including any supplemental agreement) under the Trust
Indenture Act, or under any similar Federal statute hereafter enacted,
and to add to this Agreement such other provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in effect
at the date as of which this instrument was executed or any
corresponding provision in any similar Federal statute hereafter
enacted; or
(6) to evidence and provide for the acceptance of appointment under
this Agreement by the Trustee of a successor Trustee and to add to or
change any of the provisions of this Agreement as shall be necessary to
provide for or facilitate the administration of the Trust, pursuant to
the requirements of Section 7.09;
(7) if with respect to any Owned Aircraft the Company issues "class
D" pass through certificates, to modify, eliminate or add to the
provisions of this Agreement to the extent necessary to provide for the
subordination of such "class D" pass through certificates to the
Certificates; or
53
(8) to modify or eliminate provisions relating to the transfer or
exchange of Exchange Certificates or the Initial Certificates upon
consummation of the Exchange Offer (as defined in the Registration
Rights Agreement) or effectiveness of the Shelf Registration Statement
or the Exchange Offer Registration Statement;
provided that no such action described in this Section 9.01 shall materially
adversely affect the interests of the Certificateholders.
Section 9.02. Supplemental Agreements with Consent of
Certificateholders. With the consent of the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less
than a majority in interest in the Trust, by Direction of said
Certificateholders delivered to the Guarantor, the Company and the Trustee,
the Guarantor and the Company may (with the consent of the Owner Trustees, if
any, which consent shall not be unreasonably withheld), and the Trustee
(subject to Section 9.03) shall, enter into an agreement or agreements
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement, the
Intercreditor Agreement, the Registration Rights Agreement, the Policy, the
Policy Provider Agreement, the Escrow Agreement, the Note Purchase Agreement,
the Deposit Agreement or the Liquidity Facility to the extent applicable to
such Certificateholders or of modifying in any manner the rights and
obligations of such Certificateholders under this Agreement, the
Intercreditor Agreement, the Liquidity Facility, the Registration Rights
Agreement, the Policy, the Policy Provider Agreement, the Escrow Agreement,
the Deposit Agreement or the Note Purchase Agreement; provided, however, that
no such supplemental agreement shall, without the consent of the
Certificateholder of each Outstanding Certificate affected thereby:
(1) reduce in any manner the amount of, or delay the timing of, any
receipt by the Trustee (or, with respect to the Deposits, the
Certificateholders) of payments on the Equipment Notes or other Trust
Property held in the Trust or on the Deposits or distributions that are
required to be made herein on any Certificate, or change any date of
payment on any Certificate, or change the place of payment where, or the
coin or currency in which, any Certificate is payable, or impair the
right to institute suit for the enforcement of any such payment or
distribution on or after the Regular Distribution Date or Special
Distribution Date applicable thereto; or
(2) permit the disposition of any Equipment Note included in the
Trust Property except as permitted by this Agreement, or otherwise
deprive such Certificateholder of the benefit of the ownership of the
Equipment Notes in the Trust; or
(3) alter the priority of distributions specified in the
Intercreditor Agreement; or
(4) modify any of the provisions of this Section or Section 6.05,
except to increase any such percentage or to provide that certain other
provisions of this Agreement
54
cannot be modified or waived without the consent of the
Certificateholder of each Certificate affected thereby; or
(5) adversely affect the status of any Trust as a grantor trust
under Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle A of
the Internal Revenue Code of 1986, as amended, for U.S. federal income
tax purposes.
It shall not be necessary for any Direction of Certificateholders
under this Section to approve the particular form of any proposed
supplemental agreement but it shall be sufficient if such Direction shall
approve the substance thereof.
Section 9.03. Documents Affecting Immunity or Indemnity. If in the
opinion of the Trustee any document required to be executed by it pursuant to
the terms of Section 9.01 or 9.02 affects any interest, right, duty, immunity
or indemnity in favor of the Trustee under this Agreement, the Trustee may in
its discretion decline to execute such document.
Section 9.04. Execution of Supplemental Agreements. In executing,
or accepting the additional trusts created by, any supplemental agreement
permitted by this Article or the modifications thereby of the trust created
by this Agreement, the Trustee shall be entitled to receive, and shall be
fully protected in relying upon, written advice of counsel or an Opinion of
Counsel stating that the execution of such supplemental agreement is
authorized or permitted by this Agreement.
Section 9.05. Effect of Supplemental Agreements. Upon the execution
of any supplemental agreement under this Article, this Agreement shall be
modified in accordance therewith, and such supplemental agreement shall form
a part of this Agreement for all purposes; and every Certificateholder
theretofore or thereafter authenticated and delivered hereunder shall be
bound thereby.
Section 9.06. Conformity with Trust Indenture Act. Every
supplemental agreement executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.07. Reference in Certificates to Supplemental Agreements.
Certificates authenticated and delivered after the execution of any
supplemental agreement pursuant to this Article may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
agreement; and, in such case, suitable notation may be made upon Outstanding
Certificates after proper presentation and demand.
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ARTICLE X
AMENDMENTS TO INDENTURES AND NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indentures and Other
Note Documents. In the event that the Trustee, as holder (or beneficial owner
through the Subordination Agent) of any Equipment Note in trust for the
benefit of the Certificateholders or as Controlling Party under the
Intercreditor Agreement, receives (directly or indirectly through the
Subordination Agent) a request for a consent to any amendment, modification,
waiver or supplement under any Indenture, any other Note Document, any
Equipment Note, the Note Purchase Agreement or any other related document,
the Trustee shall forthwith send a notice of such proposed amendment,
modification, waiver or supplement to each Certificateholder registered on
the Register as of the date of such notice. The Trustee shall request from
the Certificateholders a Direction as to (a) whether or not to take or
refrain from taking (or direct the Subordination Agent to take or refrain
from taking) any action which a holder of such Equipment Note has the option
to direct, (b) whether or not to give or execute (or direct the Subordination
Agent to give or execute) any waivers, consents, amendments, modifications or
supplements as a holder of such Equipment Note or a Controlling Party and (c)
how to vote (or direct the Subordination Agent to vote) any Equipment Note if
a vote has been called for with respect thereto. Provided such a request for
Certificateholder Direction shall have been made, in directing any action or
casting any vote or giving any consent as the holder of any Equipment Note
(or in directing the Subordination Agent in any of the foregoing), (i) other
than as Controlling Party, the Trustee shall vote for or give consent to any
such action with respect to such Equipment Note in the same proportion as
that of (A) the aggregate face amounts of all Certificates actually voted in
favor of or for giving consent to such action by such Direction of
Certificateholders to (B) the aggregate face amount of all Outstanding
Certificates and (ii) as Controlling Party, the Trustee shall vote as
directed in such Certificateholder Direction by the Certificateholders
evidencing a Fractional Undivided Interest aggregating not less than a
majority in interest in the Trust. For purposes of the immediately preceding
sentence, a Certificate shall have been "actually voted" if the Holder of
such Certificate has delivered to the Trustee an instrument evidencing such
Holder's consent to such Direction prior to two Business Days before the
Trustee directs such action or casts such vote or gives such consent.
Notwithstanding the foregoing, but subject to Section 6.04 and the
Intercreditor Agreement, the Trustee may, in its own discretion and at its
own direction, consent and notify the relevant Loan Trustee of such consent
(or direct the Subordination Agent to consent and notify the Loan Trustee of
such consent) to any amendment, modification, waiver or supplement under the
relevant Indenture, any other Note Document, any Equipment Note, the Note
Purchase Agreement or any other related document, if an Event of Default
hereunder shall have occurred and be continuing, or if such amendment,
modification, waiver or supplement will not materially adversely affect the
interests of the Certificateholders.
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ARTICLE XI
TERMINATION OF TRUST
Section 11.01. Termination of the Trust. The respective obligations
and responsibilities of the Company, the Guarantor and the Trustee with
respect to the Trust shall terminate upon the distribution to all Holders of
the Certificates and the Trustee of all amounts required to be distributed to
them pursuant to this Agreement and the disposition of all property held as
part of the Trust Property; provided, however, that in no event shall the
Trust continue beyond one hundred ten (110) years following the date of the
earliest execution of this Agreement.
Notice of any such termination, specifying the Regular Distribution
Date (or Special Distribution Date, as the case may be) upon which the
Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and cancellation, shall be mailed promptly,
upon notice to the Trustee, by the Trustee to Certificateholders not earlier
than the 60th day and not later than the 20th day next preceding such final
distribution specifying (A) the Regular Distribution Date (or Special
Distribution Date, as the case may be) upon which the proposed final payment
of the Certificates will be made upon presentation and surrender of
Certificates at the office or agency of the Trustee therein specified, (B)
the amount of any such proposed final payment, and (C) that the Record Date
otherwise applicable to such Regular Distribution Date (or Special
Distribution Date, as the case may be) is not applicable, payments being made
only upon presentation and surrender of the Certificates at the office or
agency of the Trustee therein specified. The Trustee shall give such notice
to the Registrar at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates in accordance with such
notice, the Trustee shall cause to be distributed to Certificateholders
amounts distributable on such final payments.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. No additional interest shall accrue on the Certificates after the
Regular Distribution Date (or Special Distribution Date, as the case may be).
In the event that any money held by the Trustee for the payment of
distributions on the Certificates shall remain unclaimed for two years (or
such lesser time as the Trustee shall be satisfied, after sixty days' notice
from the Company, is one month prior to the escheat period provided under
applicable law) after the final distribution date with respect thereto, the
Trustee shall pay to each Loan Trustee the appropriate amount of money
relating to such Loan Trustee and shall give written notice thereof to the
related Owner Trustees, Owner Participants and the Company.
57
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders. The
death or incapacity of any Certificateholder shall not operate to terminate
this Agreement, or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations, and liabilities of the
parties hereto or any of them.
Section 12.02. Liabilities of Certificateholders. Neither the
existence of the Trust nor any provision in this Agreement is intended to or
shall limit the liability the Certificateholders would otherwise incur if the
Certificateholders owned Trust Property as co- owners, or incurred any
obligations of the Trust, directly rather than through the Trust.
Section 12.03. Certificates Nonassessable and Fully Paid. Subject
to Section 12.02, Certificateholders shall not be personally liable for
obligations of the Trust, the Fractional Undivided Interests represented by
the Certificates shall be nonassessable for any losses or expenses of the
Trust or for any reason whatsoever, and Certificates upon authentication
thereof by the Trustee pursuant to Section 3.03 are and shall be deemed fully
paid. No Certificateholder shall have any right (except as expressly provided
herein) to vote or in any manner otherwise control the operation and
management of the Trust Property, the Trust, or the obligations of the
parties hereto, nor shall anything set forth herein, or contained in the
terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an
association.
Section 12.04. Notices.
(a) Unless otherwise specifically provided herein, all notices
required 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, telecopy (confirmed by telephone or in writing in the case
of notice by telecopy) or any other customary means of communication, and any
such notice shall be effective upon receipt, if to the Company or the
Guarantor, to:
American Trans Air, Inc.
0000 Xxxx Xxxxxxxxxx Xxxxxx
Indianapolis International Airport
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Executive Vice President and Chief Financial Officer
Facsimile: (000) 000-0000
58
if to the Trustee, to:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
(b) The Company, the Guarantor or the Trustee, by notice to the
other, may designate additional or different addresses for subsequent notices
or communications.
(c) Any notice or communication to Certificateholders shall be
mailed by first- class mail to the addresses for Certificateholders shown on
the Register kept by the Registrar and to addresses filed with the Trustee.
Failure so to mail a notice or communication or any defect in such notice or
communication shall not affect its sufficiency with respect to other
Certificateholders.
(d) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is conclusively presumed to have been
duly given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to the
Certificateholders, it shall mail a copy to the Trustee and to each Paying
Agent at the same time.
(f) Notwithstanding the foregoing, all communications or notices to
the Trustee shall be deemed to be given only when received by a Responsible
Officer of the Trustee.
(g) The Trustee shall promptly furnish the Company with a copy of
any demand, notice or written communication received by the Trustee hereunder
from any Certificateholder, Owner Trustee or Loan Trustee.
Section 12.05. Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN
THE STATE OF NEW YORK AND THIS AGREEMENT AND THE CERTIFICATES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.06. Severability of Provisions. If any one or more of
the covenants, agreements, provisions, or terms of this Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions, or terms shall be deemed severable from the remaining covenants,
agreements, provisions, or terms of this Agreement and shall in no way
59
affect the validity or enforceability of the other provisions of this
Agreement or the Trust or of the Certificates or the rights of the
Certificateholders thereof.
Section 12.07. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 12.08. Successors and Assigns. All covenants, agreements,
representations and warranties in this Agreement by the Trustee, the
Guarantor and the Company shall bind and, to the extent permitted hereby,
shall inure to the benefit of and be enforceable by their respective
successors and assigns, whether so expressed or not.
Section 12.09. Benefits of Agreement. Nothing in this Agreement or
in the Certificates, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, and the
Certificateholders, any benefit or any legal or equitable right, remedy or
claim under this Agreement.
Section 12.10. Legal Holidays. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate
shall not be a Business Day, then (notwithstanding any other provision of
this Agreement) payment need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on
such Regular Distribution Date or Special Distribution Date, and no interest
shall accrue during the intervening period.
Section 12.11. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 12.12. Communication by Certificateholders with Other
Certificateholders. Certificateholders may communicate with other
Certificateholders with respect to their rights under this Agreement or the
Certificates pursuant to Section 3.12(b) of the Trust Indenture Act. The
Company, the Guarantor, the Trustee and any and all other persons benefited
by this Agreement shall have the protection afforded by Section 312(c) of the
Trust Indenture Act.
Section 12.13. Intention of Parties. The parties hereto intend that
the Trust be classified for U.S. federal income tax purposes as a grantor
trust under Subpart E, Part I of Subchapter J of the Internal Revenue Code of
1986, as amended, and not as a trust or association taxable as a corporation
or as a partnership. Each Certificateholder, by its acceptance of its
Certificate or a beneficial interest therein, agrees to treat the Trust as a
grantor trust for all U.S. federal, state and local income tax purposes. The
powers granted and obligations undertaken pursuant to this Agreement shall be
so construed so as to further such intent.
60
IN WITNESS WHEREOF, the Guarantor, the Company and the Trustee have
caused this Agreement to be duly executed by their respective officers, all
as of the day and year first written above.
AMTRAN, INC.
By:
--------------------------------
Executive Vice President and
Chief Financial Officer
AMERICAN TRANS AIR, INC.
By:
--------------------------------
Chief Financial Officer
WILMINGTON TRUST COMPANY,
as Trustee
By:
--------------------------------
Title:
61
EXHIBIT A
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
[date]
Wilmington Trust Company,
not in its individual
capacity but solely as Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
AMERICAN TRANS AIR
PASS-THROUGH TRUST, SERIES 2000-1G-S (the "Trust")
Pass Through Certificates, Series 2000-1G-S
(the "Certificates")
Sirs:
In connection with our proposed sale of $[ ] Fractional Undivided
Interest of the Certificates, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended, and, accordingly, we represent that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we
nor any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
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(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may
be.
You and American Trans Air, Inc. are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. Terms used in
this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
--------------------------------
Authorized Signature
A-2
EXHIBIT B
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
[date]
Wilmington Trust Company,
not in its individual capacity
but solely as Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
American Trans Air, Inc.
0000 Xxxx Xxxxxxxxxx Xxxxxx
Indianapolis International Airport
Xxxxxxxxxxxx, Xxxxxxx 00000
AMERICAN TRANS AIR
PASS-THROUGH TRUST, SERIES 2000-1G-S (the "Trust")
Pass Through Certificates, Series 2000-1G-S
(the "Certificates")
Ladies and Gentlemen:
In connection with our proposed purchase of US$[ ] Fractional
Undivided Interest of Certificates, we confirm that:
1. We understand that any subsequent transfer of the Certificates
is subject to certain restrictions and conditions set forth in the Pass
Through Trust Agreement dated as of February 15, 2000 relating to the
Certificates (the "Pass Through Trust Agreement") and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer
the Certificates except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities
Act").
2. We are purchasing Certificates having an aggregate principal
amount of not less than $1,000 and each account (if any) for which we
are purchasing Certificates is purchasing Certificates having an
aggregate principal amount of not less than $1,000.
3. We understand that the Certificates have not been registered
under the Securities Act, that the Certificates are being sold to us in
a transaction that is exempt from the registration requirements of the
Securities Act and that the Certificates may not
B-1
be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that if we should sell any Certificate
within two years after the later of the original issuance of such
certificate and the last date on which such Certificate is owned by the
Company, the Trustee or any affiliate of any such persons, we will do so
only (A) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (B) to an
institutional "accredited investor" (as defined below) that, prior to
such transfer, furnishes to you and American Trans Air, Inc., a signed
letter substantially in the form of this letter, (C) outside the United
States in accordance with Rule 904 of Regulation S under the Securities
Act, (D) pursuant to the exemption from registration provided by Rule
144 under the Securities Act, or (E) pursuant to an effective
registration statement under the Securities Act, and we further agree to
provide to any person purchasing any of the Certificates from us a
notice advising such purchaser that resales of the Certificates are
restricted as stated herein. We further understand that the Certificates
purchased by us will bear a legend to the foregoing effect.
4. We understand that, on any proposed resale of any Certificates,
we will be required to furnish to you and American Trans Air, Inc. such
certifications, legal opinions and other information as you and American
Trans Air, Inc. may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the
Certificates purchased by us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Certificates and we and any accounts for which we are
acting are each able to bear the economic risk of our or their
investments.
6. We are acquiring the Certificates purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion and not with a view to any distribution of the Certificates,
subject, nevertheless to the understanding that the disposition of our
property shall at all times be and remain within our control.
You and American Trans Air, Inc. are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Very truly yours,
By:
--------------------------------
[Name of Transferee]
Authorized Signature
B-2
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS TO QIBs
[date]
Wilmington Trust Company,
not in its individual
capacity but solely as Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
ttention: Corporate Trust Administration
AMERICAN TRANS AIR
PASS-THROUGH TRUST, SERIES 2000-1G-S (the "Trust")
Pass Through Certificates, Series 2000-1G-S
(the "Certificates")
Ladies and Gentlemen:
In connection with our proposed sale of $[ ] Fractional Undivided
Interest of the Certificates, we confirm that without utilizing any general
solicitation or general advertising that such Certificates are being
transferred in compliance with the exemption from registration under the
Securities Act of 1933, as amended, provided by Rule 144A thereunder.
Date: [Name of Transferor
NOTE: The signature must correspond with
the name as written upon the face of the
within-mentioned Certificate in every
particular, without alteration or any
change whatsoever.
Signature Guarantee:
TO BE COMPLETED BY PURCHASER:
C-1
The undersigned represents and warrants that it is purchasing the
within-mentioned Certificate for its own account or an account with respect
to which it exercises sole investment discretion and that it and any such
account is a "qualified institutional buyer" within the meaning of Rule 144A
under the Securities Act of 1933, as amended, and is aware that the sale to
it is being made in reliance on Rule 144A and has been advised of the
applicable transfer restrictions relating to the Certificates and
acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
NOTE: To be executed by an executive officer.
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