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EXHIBIT 4.3
PASS THROUGH TRUST AGREEMENT
Dated as of December 23, 1997
between
UNITED AIR LINES, INC.
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Trustee
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS....................................................... 2
Section 1.01 Definitions.......................................................................... 2
Section 1.02 Compliance Certificates and Opinions................................................. 13
Section 1.03 Form of Documents Delivered to Trustee............................................... 14
Section 1.04 Directions of Certificateholders..................................................... 14
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF EQUIPMENT NOTES............................................. 15
Section 2.01 Amount Unlimited; Issuable in Series................................................. 15
Section 2.02 Issuance of Certificates; Acquisition of Equipment Notes............................. 17
Section 2.03 Acceptance by Trustee................................................................ 19
Section 2.04 Limitation of Powers................................................................. 20
ARTICLE III
THE CERTIFICATES.................................................... 20
Section 3.01 Form, Denomination and Execution of Certificates..................................... 20
Section 3.02 Restrictive Legends.................................................................. 21
Section 3.03 Authentication of Certificates....................................................... 23
Section 3.04 Transfer and Exchange................................................................ 24
Section 3.05 Book-Entry Provisions for U.S. Global Certificate and Offshore Global
Certificates......................................................................... 24
Section 3.06 Special Transfer Provisions.......................................................... 26
Section 3.07 Mutilated, Destroyed, Lost or Stolen Certificates.................................... 29
Section 3.08 Persons Deemed Owners................................................................ 29
Section 3.09 Cancellation......................................................................... 29
Section 3.10 Temporary Certificates............................................................... 29
Section 3.11 Limitation of Liability for Payments................................................. 30
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS.................................... 30
Section 4.01 Certificate Account and Special Payments Account..................................... 30
Section 4.02 Distributions from Certificate Account and Special Payments Account.................. 31
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Section 4.03 Statements to Certificateholders..................................................... 32
Section 4.04 Investment of Special Payment Moneys................................................. 33
ARTICLE V
THE COMPANY....................................................... 33
Section 5.01 Maintenance of Corporate Existence................................................... 33
Section 5.02 Consolidation, Merger, etc........................................................... 33
ARTICLE VI
DEFAULT........................................................ 35
Section 6.01 Events of Default.................................................................... 35
Section 6.02 Judicial Proceedings Instituted by Trustee; Trustee May Bring Suit................... 37
Section 6.03 Control by Certificateholders........................................................ 37
Section 6.04 Waiver of Past Defaults.............................................................. 38
Section 6.05 Right of Certificateholders to Receive Payments Not to Be Impaired................... 38
Section 6.06 Certificateholders May Not Bring Suit Except Under Certain Conditions................ 38
Section 6.07 Remedies Cumulative.................................................................. 39
ARTICLE VII
THE TRUSTEE....................................................... 39
Section 7.01 Certain Duties and Responsibilities.................................................. 39
Section 7.02 Notice of Defaults................................................................... 40
Section 7.03 Certain Rights of Trustee............................................................ 40
Section 7.04 Not Responsible for Recitals or Issuance of Certificates............................. 41
Section 7.05 May Hold Certificates................................................................ 42
Section 7.06 Money Held in Trust.................................................................. 42
Section 7.07 Compensation and Reimbursement....................................................... 42
Section 7.08 Corporate Trustee Required; Eligibility.............................................. 43
Section 7.09 Resignation and Removal; Appointment of Successor.................................... 43
Section 7.10 Acceptance of Appointment by Successor............................................... 45
Section 7.11 Merger, Conversion, Consolidation or Succession to Business.......................... 45
Section 7.12 Maintenance of Agencies.............................................................. 46
Section 7.13 Money for Certificate Payments to Be Held in Trust................................... 47
Section 7.14 Registration of Equipment Notes in Name of Subordination Agent....................... 47
Section 7.15 Representations and Warranties of Trustee............................................ 47
Section 7.16 Withholding Taxes; Information Reporting............................................. 49
Section 7.17 Trustee's Liens...................................................................... 49
Section 7.18 Preferential Collection of Claims.................................................... 49
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ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE.................................. 49
Section 8.01 The Company to Furnish Trustee with Names and
Addresses of Certificateholders...................................................... 49
Section 8.02 Preservation of Information; Communications to Certificateholders.................... 50
Section 8.03 Reports by Trustee................................................................... 50
Section 8.04 Reports by the Company............................................................... 50
ARTICLE IX
SUPPLEMENTAL AGREEMENTS................................................. 51
Section 9.01 Supplemental Agreements Without Consent of Certificateholders........................ 51
Section 9.02 Supplemental Agreements with Consent of Certificateholders........................... 52
Section 9.03 Documents Affecting Immunity or Indemnity............................................ 53
Section 9.04 Execution of Supplemental Agreements................................................. 53
Section 9.05 Effect of Supplemental Agreements.................................................... 53
Section 9.06 Conformity with Trust Indenture Act.................................................. 53
Section 9.07 Reference in Certificates to Supplemental Agreements................................. 53
ARTICLE X
AMENDMENTS TO INDENTURES AND NOTE DOCUMENTS................................. 54
Section 10.01 Amendments and Supplements to Indentures and Other Note Documents................... 54
ARTICLE XI
TERMINATION OF TRUSTS................................................. 55
Section 11.01 Termination of the Trusts........................................................... 55
ARTICLE XII
MISCELLANEOUS PROVISIONS............................................... 56
Section 12.01 Limitation on Rights of Certificateholders.......................................... 56
Section 12.02 Certificates Nonassessable and Fully Paid........................................... 56
Section 12.03 Notices............................................................................. 56
Section 12.04 Governing Law....................................................................... 57
Section 12.05 Severability of Provisions.......................................................... 57
Section 12.06 Trust Indenture Act Controls........................................................ 58
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Section 12.07 Effect of Headings and Table of Contents............................................ 58
Section 12.08 Successors and Assigns.............................................................. 58
Section 12.09 Benefits of Agreement............................................................... 58
Section 12.10 Legal Holidays...................................................................... 58
Section 12.11 Counterparts........................................................................ 58
Section 12.12 Intention of Parties................................................................ 58
Section 12.13 Registration of Equipment Notes in Name of Subordination Agent...................... 58
Section 12.14 Communication by Certificateholders with other Certificateholders................... 58
Schedule 1 - Indentures
Schedule 2 - Note Purchase Agreement
Exhibit A - Form of Certificate
Exhibit B - Form of Certificate for Unlegended Certificates
Exhibit C - Form of Certificate To Be Delivered in Connection with Transfers
Pursuant to Regulation S
Exhibit D - Form of Certificate To Be Delivered in Connection with Transfers to Non-
QIB Accredited Investors
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Reconciliation and tie between United Air Lines Pass Through Trust Agreement,
dated as of December 23, 1997, and the Trust Indenture Act of 1939. This
reconciliation does not constitute part of the Pass Through Trust Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
------------------- ------------------
310(a)(1) 7.08
(a)(2) 7.08
(b) 7.09
311(a) 7.18
(b) 7.18
312(a) 8.01; 8.02
(b) 12.14
(c) 12.14
313(a) 8.03
(c) 8.04
314(a)(1) 8.04(a)
(a)(2) 8.04(b)
(a)(3) 8.04(c)
(a)(4) 8.04(d)
(c)(1) 1.02
(c)(2) 1.02
(e) 1.02
315(a)(1) 7.01
(a)(2) 7.03
(b) 7.02
(c) 7.01(b)
(d) 7.01
316(a)(last sentence) 1.04(c)
(a)(1)(A) 6.02
(a)(1)(B) 6.04
(b) 6.05
(c) 1.04(d)
317(a)(1) 6.02
(b) 7.13
318(a) 12.06
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PASS THROUGH TRUST AGREEMENT
This PASS THROUGH TRUST AGREEMENT, dated as of December 23,
1997, between UNITED AIR LINES, INC., a Delaware corporation, and FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, as
Trustee, is made with respect to the formation from time to time of separate
United Air Lines Pass Through Trusts and the issuance from time to time of
separate classes of Certificates representing fractional undivided interests in
the respective Trusts.
WHEREAS, from time to time the Company (this and certain
other defined terms used herein are defined in Section 1.01) may enter into a
Trust Supplement with the Trustee named therein pursuant to which such Trustee
shall declare the creation of a separate Trust for the benefit of the Holders
of the class of Certificates to be issued in respect of such Trust, and the
initial Holders of the Certificates of such class, as the grantors of such
Trust, by their respective acceptances of the Certificates of such class, shall
join in the creation of such Trust with the Trustee;
WHEREAS, all Certificates to be issued in respect of each
separate Trust shall be issued and designated as Class A, Class B, Class C or
Class D pursuant to this Agreement, shall evidence fractional undivided
interests in the Trusts of the same class and shall have no rights, benefits or
interests in respect of any separate Trust of any other class or the property
held therein, subject, however, to the provisions of the Intercreditor
Agreement.
WHEREAS, from time to time, pursuant to the terms and
conditions of this Agreement with respect to each separate Trust formed
hereunder, the Trustee on behalf of such Trust shall purchase one or more
issues of Equipment Notes having the same interest rate as the class of
Certificates issued in respect of such Trust and, subject to the terms of the
Intercreditor Agreement, shall hold such Equipment Notes in trust for the
benefit of the Certificateholders of such Trust;
WHEREAS, to facilitate the sale of Equipment Notes to, and
the purchase of Equipment Notes by, the Trustee on behalf of each Trust created
from time to time pursuant to this Agreement, the Company has duly authorized
the execution and delivery of this Basic Agreement and each Trust Supplement as
the "issuer," as such term is defined in and solely for purposes of the
Securities Act of 1933, as amended, of the Certificates to be issued in respect
of each Trust and as the "obligor," as such term is defined in and solely for
purposes of the Trust Indenture Act of 1939, as amended, with respect to all
such Certificates and is undertaking to perform certain administrative and
ministerial duties hereunder and is also undertaking to pay the fees and
expenses of the Trustee; and
WHEREAS, this Basic Agreement, as amended or supplemented
from time to time, shall, upon effectiveness of the Exchange Offer Registration
Statement and/or the Shelf Registration Statement described in the Registration
Rights Agreement, be subject to the provisions of the Trust Indenture Act of
1939, as amended, and shall, to the extent applicable, be governed by such
provisions;
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NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. For all purposes of this Basic
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms used herein that are defined in this Article I
have the meanings assigned to them in this Article I, and include the
plural as well as the singular;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, or by
the rules promulgated under the Trust Indenture Act, have the meanings
assigned to them therein;
(c) all references in this Basic Agreement to designated
"Articles," "Sections," "Subsections" and other subdivisions are to
the designated Articles, Sections, Subsections and other subdivisions
of this Basic Agreement;
(d) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Basic Agreement as whole and not
to any particular Article, Section, Subsection or other subdivision;
and
(e) 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".
Additional Payments: Means a payment of Make-Whole Amount
and/or Break Amount, if any.
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).
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Agreement: Means, unless the context otherwise requires, this
Basic Agreement as supplemented by the Trust Supplement creating a
particular Trust and establishing the class of Certificates issued or
to be issued in respect thereof, with reference to such Trust and each
class of Certificates, as this Basic Agreement as so supplemented may
be further supplemented with respect to such Trust and such class of
Certificates.
Aircraft: Means an aircraft, including engines therefor, owned
by or leased to the Company and securing one or more Equipment Notes.
Authorized Agent: With respect to the Certificates of any
class, means any Paying Agent or Registrar for the Certificates of such
class.
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.
Basic Agreement: Means this Pass Through Trust Agreement, as
the same may from time to time be supplemented, amended or modified,
but does not include any Trust Supplement.
Break Amount: Has the meaning specified therefor in the
Indentures.
Business Day: With respect to the Certificates of any class,
means any day (x) other than a Saturday or Sunday or a day on which
commercial banks are required or authorized to close in Chicago,
Illinois, New York, New York, Frankfurt, Germany, or, so long as any
such Certificate is outstanding, a city and state in which the Trustee
or any related Indenture Trustee maintains its Corporate Trust Office
or receives and disburses funds and (y) on which dealings are carried
on in the London interbank market.
Cedel: Means Cedel Bank, societe anonyme.
Certificate: Means any one of the Initial Certificates or
Exchange Certificates and any such Certificates issued in exchange
therefor or replacement thereof pursuant to this Agreement.
Certificate Account: With respect to the Certificates of any
class, means the account or accounts created and maintained for such
class pursuant to Section 4.01(a).
Certificateholder or Holder: With respect to the Certificates
of any class, means the Person in whose name a Certificate of such
class is registered in the Register for Certificates of such class.
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Class A Certificates: Means Certificates designated as "Class
A Certificates" in the Trust Supplement pursuant to which such
Certificates are issued.
Class B Certificates: Means Certificates designated as "Class
B Certificates" in the Trust Supplement pursuant to which such
Certificates are issued.
Class C Certificates: Means Certificates designated as "Class
C Certificates" in the Trust Supplement pursuant to which such
Certificates are issued.
Class D Certificate: Means Certificates designated as "Class
D Certificates" in the Trust Supplement pursuant to which such
Certificates are issued.
Company: Means United Air Lines, Inc., a Delaware
corporation, or its successor in interest pursuant to Section 5.02, or
(only in the context of provisions hereof, if any, when such reference
is required for purposes of compliance with the Trust Indenture Act)
any other obligor (within the meaning of the Trust Indenture Act) with
respect to the Certificates.
Controlling Party: Means the Person entitled to act as such
pursuant to the terms of the Intercreditor Agreement.
Corporate Trust Office: With respect to the Trustee or any
Indenture Trustee, means the office of such trustee in the city at
which at any particular time its corporate trust business shall be
principally administered.
Cut-off Date: With respect to the Certificates of a Trust of
any class, means the date designated as such in the related Trust
Supplement.
Depositary: Means The Depository Trust Company, its nominees
and their respective successors.
Direction: Has the meaning specified in Section 1.04(a).
Distribution Date: With respect to the Certificates of any
class, means any Regular Distribution Date or Special Distribution
Date.
Eligible Account: Means an account established by and with an
Eligible Institution at the request of the Trustee, which institution
agrees, for all purposes of the applicable Uniform Commercial Code
("UCC"), including Article 8 thereof, that (a) such account shall be a
"securities account" (as defined in Section 8-501 of the UCC), (b) all
property credited to such account shall be treated as a "financial
asset" (as defined in Section 8-102(9) of the UCC), (c) the Trustee
shall be the "entitlement holder" (as defined in Section 8-102(7) of
the UCC) in respect of such account, (d) such Eligible Institution
shall comply with all entitlement orders issued by the Trustee to the
exclusion of any other Person and (e) the
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"securities intermediary jurisdiction" (under Section 8-110(e) of the
UCC) shall be the State of Illinois.
Eligible Institution: Means the corporate trust department of
(a) First Security Bank, National Association, acting solely in its
capacity as a "securities intermediary" (as defined in Section
8-102(14) of the applicable Uniform Commercial Code, or (b) a
depository institution organized under the laws of the United States
of America or any one of the states thereof or the District of
Columbia (or any U.S. branch of a foreign bank), which has a long-term
unsecured debt rating from Xxxxx'x Investors Service, Inc. and
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., of at least "A-3" or its equivalent.
Equipment Note: With respect to the Certificates of any class,
has the meaning given to "Equipment Note" in the related Indenture.
ERISA: Means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor federal statute.
Escrow Account: With respect to the Certificates of any class,
has the meaning specified in Section 2.02(b).
Escrowed Funds: With respect to the Trusts of any class, has
the meaning specified in Section 2.02(b).
Euroclear: Means the Euroclear System.
Event of Default: Means, in respect of any Trusts of a class,
an Indenture Default under any Indenture pursuant to which Equipment
Notes held by such Trusts were issued.
Exchange Certificate: Means any of the certificates,
substantially in the form of Exhibit A, issued in exchange for an
Initial Certificate pursuant to the Registration Rights Agreement and
authenticated under this Agreement.
Exchange Offer Registration Statement: Means the Exchange
Offer Registration Statement defined in the Registration Rights
Agreement.
Financing Documents: With respect to any Equipment Note,
means (i) the related Participation Agreement and Indenture and (ii)
in the case of any Equipment Note related to a Leased Aircraft, the
Lease relating to such Leased Aircraft.
Fractional Cumulative Interest: Means, with respect to any
outstanding Certificate of a class, the principal amount of such
Certificate divided by the aggregate principal amount of all
Certificates of such class issued pursuant to all Trust Supplements
creating Trusts of such class.
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Fractional Undivided Interest: Means the fractional undivided
interest in a Trust that is evidenced by a Certificate relating to such
Trust.
Global Certificates: Has the meaning assigned to such term in
Section 3.01(d).
Indenture: With respect to any Trust, means each of the one
or more separate trust indenture and security agreements or trust
indentures and mortgages or similar agreements described on Schedule 1
attached to this Agreement which relates to an issue of Equipment
Notes to be held in such Trust; as each such indenture may be amended
or supplemented in accordance with its respective terms; and
Indentures means all of such agreements.
Indenture Default: With respect to any Indenture, means any
Indenture Event of Default (as such term is defined in such Indenture).
Indenture Trustee: With respect to any Equipment Note or the
Indenture applicable thereto, means the bank or trust company
designated as indenture trustee under such Indenture, together with
any successor to such Indenture Trustee appointed pursuant thereto.
Initial Certificate: Means any of the certificates issued and
authenticated, under this Agreement, substantially in the form of
Exhibit A, other than an Exchange Certificate.
Initial Purchasers: Means, collectively, Xxxxxx Xxxxxxx & Co.
Incorporated, BT Alex. Xxxxx Incorporated, Citicorp Securities, Inc.,
Credit Suisse First Boston Corporation and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated.
Initial Regular Distribution Date: With respect to the
Certificates of any class, 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.
Intercreditor Agreement: Means the Intercreditor Agreement,
dated as of the date hereof, by and among First Security Bank, National
Association, as Trustee, Kreditanstalt fur Wiederaufbau, as Class A
Primary Liquidity Provider and Class B Primary Liquidity Provider,
Credit Suisse Financial Products, as Class A Above-Cap Liquidity
Provider and Class B Above-Cap Liquidity Provider, and First Security
Bank, National Association, as Subordination Agent thereunder, as
amended, supplemented or otherwise modified from time to time in
accordance with its terms.
Issuance Date: With respect to the Certificates of a Trust of
any class, means the date of the issuance of the Initial Certificates
of such Trust.
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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 such lease may be
amended, supplemented or otherwise modified in accordance with its
terms.
Leased Aircraft: Has the meaning specified in the
Intercreditor Agreement.
Liquidity Facility: Has the meaning specified in the
Intercreditor Agreement.
Liquidity Provider: Has the meaning specified in the
Intercreditor Agreement.
Make-Whole Amount: Has the meaning specified therefor in 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 the Certificates of any class,
the Equipment Notes with respect to such Certificates and, with respect
to such Equipment Notes, the related Financing Documents.
Note Purchase Agreement: Means the Note Purchase Agreement,
dated as of December 23, 1997, among the Company, the Owner Trustees,
the Trustee, the Subordination Agent and the Indenture Trustees, as
amended, supplemented or otherwise modified from time to time in
accordance with its terms.
Officer's Certificate: Means a certificate signed, (a) in the
case of the Company, by the Chairman of the Board of Directors, the
President, any Vice President, the Secretary or the Treasurer, or (b)
in the case of an Owner Trustee or an Indenture Trustee, a Responsible
Officer of such Owner Trustee or such Indenture Trustee, as the case
may be.
Offshore Certificates Exchange Date: With respect to the
Certificates of any class, has the meaning specified in Section
3.01(d).
Offshore Global Certificates: Has the meaning specified in
Section 3.01(d).
Offshore Physical Certificates: Has the meaning specified in
Section 3.01(e).
Opinion of Counsel: Means a written opinion of legal counsel
who (a) in the case of counsel for the Company may be (i) an attorney
of the Company, (ii) Vedder, Price, Xxxxxxx & Kammholz, (iii) Xxxxx,
Xxxxx & Xxxxx or (iv) such other counsel designated by the Company and
reasonably acceptable to the Trustee and (b) in the case of counsel for
any Owner Trustee or any Indenture 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.
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Outstanding: With respect to Certificates of any class,
means, as of the date of determination, all Certificates of such class
theretofore authenticated and delivered under this Agreement, except:
(i) Certificates of such class theretofore canceled
by the Registrar or delivered to the Trustee or the Registrar
for cancellation;
(ii) All of the Certificates of such class if money
in the full amount required to make the final distribution
with respect to such class pursuant to Section 11.01 has been
theretofore deposited with the Trustee in trust for the
Holders of the Certificates of such class as provided in
Section 4.01 pending distribution of such money to such
Certificateholders pursuant to such final distribution
payment; and
(iii) Certificates of such class in exchange for or
in lieu of which other Certificates of such class have been
authenticated and delivered pursuant to this Basic Agreement.
Owned Aircraft: Has the meaning specified in the Intercreditor
Agreement.
Owner Participant: With respect to any Equipment Note relating
to a Leased Aircraft, 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: With respect to any Aircraft, means
the Participation Agreement referred to in the related Indenture.
Paying Agent: With respect to the Certificates of any class,
means the paying agent maintained and appointed for the Certificates of
such class pursuant to Section 7.12.
Permanent Offshore Global Certificates: Has the meaning
specified in Section 3.01(d).
Permitted Investments: Means obligations of the United States
of America or agencies or instrumentalities thereof the payment of
which is backed by the full faith and credit of the United States of
America and which mature in not more than 60 days after the date of
acquisition thereof or such lesser time as is required for the
distribution of any
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Special Payments on a Special Distribution Date. All Permitted
Investments held by the Trustee pursuant to Section 4.04 shall either
be (a) registered in the name of, payable to the order of, or
specially endorsed to the Trustee, or (b) held in an Eligible Account.
Person: Means any person, including any individual,
corporation, partnership, limited liability company, 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).
Pool Balance: With respect to the Certificates issued
pursuant to the Trusts of the same class, means, as of any date, (i)
the original aggregate face amount of the Certificates of such class
less (ii) the aggregate amount of all payments made in respect of such
Certificates of such class other than payments made in respect of
interest or Additional Payments thereon or reimbursement of any costs
or expenses incurred in connection therewith. The Pool Balance as of
any Distribution Date, with respect to the Certificates of such
Trusts, shall be computed after giving effect to the payment of
principal, if any, on the Equipment Notes or other Trust Property held
in such Trusts and the distribution thereof to be made on such
Distribution Date.
Pool Factor: With respect to the Certificates issued pursuant
to the Trusts of the same class, means, as of any date, the quotient
(rounded to the seventh decimal place) computed by dividing (i) the
Pool Balance of such class as at such date by (ii) the original
aggregate face amount of the Certificates of such Trusts. The Pool
Factor as of any Distribution Date, with respect to such Trusts, shall
be computed after giving effect to the payment of principal, if any,
on the Equipment Notes or other Trust Property held in such Trusts and
the distribution thereof to be made on such Distribution Date.
Postponed Notes: Means the Equipment Notes to be held in the
Trust as to which a Postponement Notice shall have been delivered
pursuant to Section 2.02(b).
Postponement Notice: Means, with respect to any Trust or the
related class of Certificates, an Officer's Certificate of the Company
(1) requesting that the Trustee temporarily postpone the purchase of
the related Equipment Notes to a date which is later than the Issuance
Date of such class of Certificates, (2) identifying the amount of the
purchase price of each such Equipment Note and the aggregate purchase
price for all such Equipment Notes, (3) setting forth the reasons for
such postponement and (4) with respect to each such Equipment Note,
either (a) setting or resetting a new Transfer Date (which shall be on
or prior to the applicable Cut-off Date) for payment by the Trustee of
such purchase price and issuance of the related Equipment Note, or (b)
indicating that such new Transfer Date (which shall be on or prior to
the applicable Cut-off Date) shall be set by subsequent written notice
not less than one Business Day prior to such new Transfer Date.
Private Placement Legend: Has the meaning specified in Section
3.02(a).
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QIB: Means a "qualified institutional buyer" as defined in
Rule 144A.
Record Date: With respect to any Trust or the related class
of Certificates, means (i) for Scheduled Payments to be distributed on
any Regular Distribution Date, other than the final distribution, with
respect to such class of Certificates, the 15th day (whether or not a
Business Day) preceding such Regular Distribution Date, and (ii) for
Special Payments to be distributed on any Special Distribution Date,
other than the final distribution, with respect to such class of
Certificates, the 15th day (whether or not a Business Day) preceding
such Special Distribution Date.
Register and Registrar: With respect to the Certificates of
any class, means the register maintained and the registrar appointed
for such class pursuant to Sections 3.04 and 7.12.
Registration Rights Agreement: Means the Registration Rights
Agreement, dated as of the date hereof, between the Initial
Purchasers, the Trustee and the Company, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Registration Statement: Means the Registration Statement
defined in the Registration Rights Agreement.
Regular Distribution Date: With respect to distributions of
Scheduled Payments in respect of any class of Certificates, means each
date designated as a Regular Distribution Date 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 Business Day
together with additional interest accrued to such next Business Day at
the rate applicable to such class of Certificates.
Regulation S: Means Regulation S under the Securities Act or
any successor regulation thereto.
Responsible Officer: With respect to any Trustee, any
Indenture Trustee and any Owner Trustee, means any officer in the
Corporate Trust Department of the Trustee, Indenture Trustee or Owner
Trustee or any other officer customarily performing functions similar
to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with a particular
subject.
Rule 144A: Means Rule 144A under the Securities Act and any
successor rule thereto.
Scheduled Payment: With respect to any Equipment Note, means
(i) any payment of principal or interest on such Equipment Note (other
than any such payment that is not in fact received by the
Subordination Agent within five days of the date on which such payment
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is scheduled to be made) due from the obligor thereon or (ii) any
payment of interest on the Class A Certificates or Class B
Certificates with funds drawn under the Liquidity Facility for such
class, which payment represents the installment of principal on such
Equipment Note at the stated maturity of such installment of
principal, the payment of regularly scheduled interest accrued on the
unpaid principal amount of such Equipment Note, or both; provided,
however, that any payment of principal, Additional Payment or interest
resulting from the redemption or purchase of any Equipment Note shall
not constitute a Scheduled Payment.
SEC: Means the Securities and Exchange Commission, as from
time to time constituted or created under the Securities Exchange Act
of 1934, 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.
Special Distribution Date: With respect to the Certificates
of any class, 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 Business Day together with additional
interest accrued to such next Business Day at the rate applicable to
such class of Certificates.
Special Payment: With respect to the Certificates of any
class, means (i) any payment (other than a Scheduled Payment) in
respect of, or any proceeds of, any Equipment Note or Trust Indenture
Estate (as defined in each Indenture), (ii) the amounts required to be
distributed pursuant to the last paragraph of Section 2.02(b) or (iii)
the amounts required to be distributed pursuant to the penultimate
paragraph of Section 2.02(b).
Special Payments Account: With respect to the Certificates of
any class, means the account or accounts created and maintained for
such class pursuant to Section 4.01(b).
Specified Investments: With respect to any Trust, means,
unless otherwise specified in the related Trust Supplement, each of
(i) obligations of, or guaranteed by, the United States Government or
agencies thereof, (ii) open market commercial paper of any corporation
incorporated under the laws of the United States of America or any
State thereof rated at least P-1 or its equivalent by Xxxxx'x
Investors Service, Inc. or at least A-1 or its equivalent by Standard
& Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., (iii) certificates of deposit issued by commercial banks
organized under the laws of the United States or of any political
subdivision thereof having a combined capital and surplus in excess of
$500,000,000 which banks or their holding companies have a rating of A
or its equivalent by Xxxxx'x Investors Service, Inc. or Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc.;
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provided, however, that the aggregate amount at any one time so
invested in certificates of deposit issued by any one bank shall not
exceed 5% of such bank's capital and surplus, (iv) U.S. dollar
denominated offshore certificates of deposit issued by, or offshore
time deposits with, any commercial bank described in clause (iii) or
any subsidiary thereof and (v) repurchase agreements with any
financial institution having combined capital and surplus of at least
$500,000,000 with any of the obligations described in clauses (i)
through (iv) as collateral; and, provided further, that if all of the
above investments are unavailable, the entire amount to be invested
may be used to purchase federal funds from an entity described in
clause (iii) above. All Specified Investments held by the Trustee
pursuant to Section 2.02(b) shall either be (a) registered in the name
of, payable to the order of, or specially endorsed to the Trustee, or
(b) held in an Eligible Account.
Subordination Agent: Has the meaning specified therefor in the
Intercreditor Agreement.
Temporary Offshore Global Certificates: Has the meaning
specified in Section 3.01(d).
Transfer Date: Has the meaning assigned to the term Closing
Date in the Note Purchase Agreement.
Triggering Event: Has the meaning specified therefor in the
Intercreditor Agreement.
Trust: With respect to the Certificates of any class, means
any trust of such class under this Agreement.
Trustee: Means First Security Bank, National Association, or
its successor-in-interest, and any successor or other trustee
appointed as provided in the Trust Agreements; provided, however, that
if the same institution is not acting as Trustee in respect of all
classes of Certificates, the phrase "the Trustee" shall, unless the
context otherwise requires, mean, as to any Class of Certificates, the
institution acting as the Trustee in respect of such class.
Trust Indenture Act: Except as otherwise provided in Section
9.06, means the United States Trust Indenture Act of 1939 as in force
at the date as of which this Basic Agreement was executed.
Trust Property: With respect to any Trust, means (i) the
Equipment Notes held as the property of such Trust and all monies at
any time paid thereon and all monies due and to become due thereunder,
(ii) funds from time to time deposited in the related Escrow Account,
the related Certificate Account and the related Special Payments
Account, (iii) all rights of such Trust and the Trustee, on behalf of
such Trust, under the Intercreditor Agreement, the Registration Rights
Agreement and the Note Purchase Agreement, including
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all rights to receive certain payments thereunder and all monies paid
to such Trustee on behalf of such Trust pursuant to the Intercreditor
Agreement, the Registration Rights Agreement or the Note Purchase
Agreement and (iv) for the Trusts relating to the Class A Certificates
and the Class B Certificates, all monies receivable by the
Subordination Agent under the Liquidity Facilities for such Trusts.
Trust Supplement: Means an agreement supplemental hereto
pursuant to which (i) a separate Trust is created for the benefit of
the Holders of the Certificates of a class, (ii) the issuance of the
Certificates of such class representing fractional undivided interests
in such Trust is authorized and (iii) the terms of the Certificates of
such class are established.
Trustee's Lien: Has the meaning specified in Section 7.17.
U.S. Global Certificate: Has the meaning specified in Section
3.01(e).
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 Indenture Trustee to the Trustee to
take any action under any provision of this Basic Agreement or, in respect of
the Certificates of any class, this Agreement, the Trustee may request that the
Company, such Owner Trustee or such Indenture Trustee, as the case may be,
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
Basic Agreement or 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
Basic Agreement or this Agreement relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Basic Agreement or, in respect of
the Certificates of any class, this Agreement (other than a certificate
provided pursuant to Section 8.04(d)) or any Trust Supplement shall include:
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions in this Basic Agreement or this Agreement
relating thereto;
(ii) 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;
(iii) 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
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informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether, in the opinion of
each such individual, such condition or covenant has been
complied with.
Section 1.03 Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters and any such Person may certify or give an
opinion as to such matters in one or several documents.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Basic Agreement or, in respect of the Certificates
of any class, 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 in respect of the Certificates of any class
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 otherwise expressly provided herein, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required pursuant to this Agreement,
to the Company or any Indenture Trustee. 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 Indenture Trustee, if made in the manner provided
in this Section 1.04.
(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 Cumulative Interests of Certificates of any class
Outstanding have given any Direction under this Agreement, Certificates owned
by the Company or any Affiliate thereof shall be disregarded and
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deemed not to be Outstanding for purposes of any such determination. In
determining whether the Trustee shall be protected in relying upon any such
Direction, only Certificates which the Trustee knows to be so owned shall be so
disregarded. Notwithstanding the foregoing, (i) if any such Person owns 100% of
the Certificates of any class Outstanding, such Certificates shall not be so
disregarded, and (ii) if any amount of Certificates of such class so owned by
any such Person have been pledged in good faith, such Certificates shall not be
disregarded 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 or any Affiliate thereof.
(d) The Company may at its option, by delivery of an
Officer's Certificate to the Trustee, set a record date to determine the
Certificateholders in respect of the Certificates of any class entitled to give
any 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 of the applicable class 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 of the applicable class at the
close of business on such record date shall be deemed to be Certificateholders
for the purposes of determining whether Certificateholders of the requisite
proportion of outstanding Certificates of such class have authorized or agreed
or consented to such Direction, and for that purpose the Outstanding
Certificates of such class shall be computed as of such record date. 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
Basic Agreement not later than one year after such 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 of any class owned by or pledged to any Person shall have an equal
and proportionate benefit under the provisions of this Agreement, without
preference, priority or distinction as among all of the Certificates of such
class.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF EQUIPMENT NOTES
Section 2.01 Amount Unlimited; Issuable in Classes. (a) The
aggregate principal amount of Certificates which may be authenticated and
delivered under this Basic Agreement is unlimited. The Certificates may be
issued from time to time in one or more class and shall be designated generally
as the "Pass Through Certificates," with such further designations added or
incorporated in such title for the Certificates of each class as specified in
the related Trust Supplement. Each Certificate shall bear upon its face the
designation so selected for the class to
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which it belongs. All Certificates of the same class shall be substantially
identical except that the Certificates of a class may differ as to denomination
and as may otherwise be provided in the Trust Supplement establishing the
Certificates of such class. Each class of Certificates issued pursuant to this
Agreement shall evidence fractional undivided interests in the related Trust
and Fractional Cumulative Interests in all Trusts of such class and shall have
no rights, benefits or interests in respect of any Trust of any other class or
the Trust Property held therein. All Certificates of the same class shall be in
all respects equally and ratably entitled to the benefits of this Agreement
without preference, priority or distinction on account of the actual time or
times of authentication and delivery, all in accordance with the terms and
provisions of this Agreement.
(b) The following matters shall be established with respect
to the Certificates of each class issued hereunder by a Trust Supplement
executed and delivered by and between the Company and the Trustee:
(i) the formation of the Trust as to which the
Certificates of such class represent fractional undivided
interests and its class designation (which designation shall
distinguish such Trust from each other Trust of any other
class created under this Basic Agreement and a Trust
Supplement);
(ii) the specific title of the Certificates of such
class (which title shall distinguish the Certificates of such
class from each other class of Certificates created under
this Basic Agreement and a Trust Supplement);
(iii) any limit upon the aggregate principal amount
of the Certificates of such class which may be authenticated
and delivered (which limit shall not pertain to Certificates
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Certificates of the
class pursuant to Sections 3.04, 3.07 and 3.10);
(iv) the Cut-off Date with respect to the
Certificates of such class;
(v) the Regular Distribution Dates applicable to the
Certificates of such class;
(vi) the Special Distribution Dates applicable to the
Certificates of such class and the related Trust;
(vii) if other than as provided in Section 7.12(b),
the Registrar or the Paying Agent for the Certificates of
such class, including any Co-Registrar or additional Paying
Agent;
(viii) if other than as provided in Section 3.01,
the denominations in which the Certificates of such class
shall be issuable;
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(ix) the specific form of the Certificates of such
class (including the interest rate applicable thereto) and
whether or not Certificates of such class are to be issued as
Initial Certificates or Exchange Certificates;
(x) a description of the Equipment Notes to be
acquired and held in the related Trust and of the related
Aircraft and the other Note Documents;
(xi) provisions with respect to the terms for which
the definitions set forth in Article I permit or require
further specification in the related Trust Supplement;
(xii) any restrictions (including legends) in respect
of ERISA;
(xiii) whether such class will have the benefit of
Liquidity Facilities and, if so, any terms appropriate
thereto; and
(xiv) any other terms of the Certificates of such
class (which terms shall not be inconsistent with the
provisions of the Trust Indenture Act), including any terms
which may be required or advisable under United States laws
or regulations or advisable in connection with the marketing
of Certificates of the class.
(c) At any time and from time to time after the execution and
delivery of this Basic Agreement and a Trust Supplement forming a Trust and
establishing the terms of Certificates of a class, Certificates of such class
shall be executed, authenticated and delivered by the Trustee to the Person or
Persons specified by the Company upon request of the Company and upon
satisfaction of any conditions precedent set forth in such Trust Supplement or
in any other document to which the Trustee is a party relating to the issuance
of the Certificates of such class.
Section 2.02 Issuance of Certificates; Acquisition of
Equipment Notes. (a) Unless otherwise specified in the related Trust
Supplement, the Trustee is hereby directed to execute and deliver the
Intercreditor Agreement, the Registration Rights Agreement and the Note
Purchase Agreement on or prior to the Issuance Date of the Certificates of a
class, each in the form delivered to the Trustee by the Company, and is hereby
directed to and shall, subject to the respective terms thereof, perform its
obligations thereunder. Upon request of the Company and the satisfaction of the
closing conditions specified in the Note Purchase Agreement, the Trustee shall
execute, deliver and authenticate such Certificates equaling in the aggregate
the aggregate principal amount of the Equipment Notes to be purchased by the
Trustee pursuant to the Note Purchase Agreement on the Transfer Date, and
evidencing the entire ownership interest in the related Trust. The Trustee
shall issue and sell such Certificates, in authorized denominations and in such
Fractional Undivided Interests, so as to result in the receipt by the Trustee
of consideration in an amount equal to the aggregate principal amount of such
Equipment Notes and, concurrently therewith, the Trustee shall purchase,
pursuant to the terms and conditions of the Note Purchase Agreement, the
Equipment Notes at a purchase price equal to the amount of such consideration
so received. Except as provided in Sections 3.04 and 3.07, the Trustee shall
not execute, authenticate or deliver Certificates of any
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class in excess of the aggregate amount specified in this Section 2.02(a). The
provisions of this Section 2.02(a) are subject to the provisions of Section
2.02(b) below.
(b) On or prior to the Issuance Date with respect to a class
of Certificates, the Company may deliver to the Trustee a Postponement Notice
relating to one or more Postponed Notes, which Postponement Notice may be given
by the Company only if one or more conditions to the purchase of such Postponed
Notes by the Trustee shall not have been satisfied or waived pursuant to the
Note Purchase Agreement. The Trustee shall postpone the purchase of the
Postponed Notes from the consideration received from the sale of such
Certificates and shall promptly deposit funds in an amount equal to the
purchase price of such Postponed Notes (the "Escrowed Funds") into an escrow
account (the "Escrow Account") with the Trustee to be maintained as a part of
the related Trust. The Escrowed Funds so deposited shall be invested by the
Trustee at the direction and risk of, and for the benefit of, the Company in
Specified Investments (i) maturing no later than any scheduled Transfer Date
relating to the Postponed Notes or (ii) if no such Transfer Date has been
scheduled, maturing on the next Business Day, or (iii) if the Company has given
notice to the Trustee that any Postponed Notes shall not be issued or be
available for purchase, with respect to the portion of the Escrowed Funds
relating to such Postponed Notes, maturing on the next applicable Special
Distribution Date, if such investments are reasonably available for purchase.
The Trustee shall make withdrawals from the Escrow Account only as provided in
this Agreement. Upon request of the Company on one or more occasions and the
satisfaction or waiver of the closing conditions specified in the Note Purchase
Agreement on or prior to the Cut-off Date, the Trustee shall purchase the
applicable Postponed Notes with the Escrowed Funds withdrawn from the Escrow
Account. The purchase price shall equal the principal amount of such Postponed
Notes.
The Trustee shall hold all Specified Investments until the
maturity thereof and shall not sell or otherwise transfer Specified
Investments. If Specified Investments held in an Escrow Account mature prior to
any applicable Transfer Date, any proceeds received on the maturity of such
Specified Investments (other than any earnings thereon) shall be reinvested by
the Trustee at the direction and risk of, and for the benefit of, the Company
in Specified Investments maturing as provided in the preceding paragraph.
On the Initial Regular Distribution Date in respect of the
Certificates of any class, the Company shall pay (in immediately available
funds) to the Trustee an amount equal to (i) the sum of (A) the interest that
would have accrued on any Postponed Notes purchased on or prior to the Initial
Regular Distribution Date if such Postponed Notes had been purchased on the
Issuance Date, from and including the Issuance Date to but excluding the date
of such purchase and (B) the interest that would have accrued on any Postponed
Notes not purchased on or prior to the Initial Regular Distribution Date (other
than any Postponed Notes for which a Special Distribution Date specified in the
next paragraph has occurred on or prior to the Initial Regular Distribution
Date) if such Postponed Notes had been purchased on the Issuance Date, from and
including the Issuance Date to but excluding the Initial Regular Distribution
Date, minus (ii) the earnings on Specified Investments received by the Trustee
from and including the later of the Issuance Date or the date preceding the
Initial Regular Distribution Date on which an amount has been paid pursuant to
the next paragraph to but excluding the Initial Regular Distribution Date. On
the second Regular
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Distribution Date, the Company shall pay (in immediately available funds) to
the Trustee an amount equal to (i) the interest that would have accrued on any
Postponed Notes purchased after the Initial Regular Distribution Date and on or
prior to the Cut-off Date if such Postponed Notes had been purchased on the
Initial Regular Distribution Date, from and including the Initial Regular
Distribution Date to but excluding the date of such purchase, minus (ii) the
earnings on Specified Investments received by the Trustee from and including
the later of the Initial Regular Distribution Date or the date preceding the
second Regular Distribution Date on which an amount has been paid pursuant to
either of the next two paragraphs to but excluding the second Regular
Distribution Date. The Company shall pay to the Trustee for deposit to the
relevant Escrow Account an amount equal to any losses on such Specified
Investments as incurred.
If, in respect of the Certificates of any class, the Company
notifies the Trustee prior to the Cut-off Date that any Postponed Notes shall
not be issued or be available for purchase on or prior to the Cut-off Date for
any reason, on the next Special Distribution Date for such Certificates
occurring more than 20 days following the date of such notice (i) the Company
shall pay to the Trustee for deposit in the related Special Payments Account,
in immediately available funds, an amount equal to the interest that would have
accrued on the Postponed Notes designated in such notice at a rate equal to the
interest rate applicable to such Certificates from and including the Issuance
Date (if such Special Distribution Date shall occur on or prior to the Initial
Regular Distribution Date) or the Initial Regular Distribution Date (if such
Special Distribution Date occurs after the Initial Regular Distribution Date)
to but excluding such Special Distribution Date and (ii) the Trustee shall
transfer an amount equal to that amount of Escrowed Funds that would have been
used to purchase the Postponed Notes designated in such notice plus the amount
paid by the Company pursuant to the preceding clause (i) to the related Special
Payments Account for distribution as a Special Payment in accordance with the
provisions hereof.
If, on the Cut-off Date, an amount equal to less than all of
the Escrowed Funds (other than Escrowed Funds referred to in the preceding
paragraph) has been used to purchase Postponed Notes, on the next Special
Distribution Date occurring more than 20 days following the Cut-off Date (i)
the Company shall pay to the Trustee for deposit in the Special Payments
Account, in immediately available funds, an amount equal to the interest that
would have accrued on the Postponed Notes originally contemplated to be
purchased with such unused Escrowed Funds (other than Escrowed Funds referred
to in the preceding paragraph) but not so purchased at a rate equal to the
interest rate applicable to the Certificates from and including the Initial
Regular Distribution Date to but excluding such Special Distribution Date and
(ii) the Trustee shall transfer such unused Escrowed Funds and the amount paid
by the Company pursuant to the preceding clause (i) to such Special Payments
Account for distribution as a Special Payment in accordance with the provisions
hereof.
Section 2.03 Acceptance by Trustee. The Trustee, upon the
execution and delivery of a Trust Supplement creating a Trust and issuing a
class of Certificates, acknowledges its acceptance of all right, title and
interest in and to the Equipment Notes acquired pursuant to Section 2.02 and
the Note Purchase Agreement and declares that the Trustee holds and shall hold
such right, title and interest, together with all other property constituting
the Trust Property of such Trust, for
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the benefit of all then present and future Certificateholders of such class,
upon the trusts herein and in such Trust Supplement set forth. Subject to
Section 7.14, 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 its payment for and acceptance of each Certificate of such class
issued to it under this Agreement, each initial Certificateholder of such class
as grantor of such Trust thereby joins in the creation and declaration of such
Trust and grants to the Trustee the powers conferred by this Agreement.
Section 2.04 Limitation of Powers. Each Trust is constituted
solely for the purpose of making the investment in the Equipment Notes provided
for in the related Trust Supplement, and, except as set forth herein or in this
Agreement, the Trustee shall not be authorized or empowered to acquire any
other investments or engage in any other activities and, in particular, the
Trustee shall not be authorized or empowered to do anything that would cause
such Trust to fail to qualify as a "grantor trust" for federal income tax
purposes (including as subject to this restriction, acquiring any Aircraft (as
defined in the respective related Indentures) by bidding such Equipment Notes
or otherwise, or taking any action with respect to any such Aircraft once
acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01 Form, Denomination and Execution of
Certificates. (a) Each Certificate shall represent a fractional undivided
interest in a Trust and shall be substantially in the form set forth as Exhibit
A, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this 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
officers executing such Certificates, as evidenced by their 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.
(b) Except as otherwise provided in the related Trust
Supplement, the Initial Certificates of each class shall be issued only in
fully registered form without coupons and only in denominations of $100,000 or
integral multiples of $1,000 in excess thereof. Except as otherwise provided in
the related Trust Supplement, the Exchange Certificates of each class shall be
issued in denominations of $100,000 or integral multiples of $1,000 in excess
thereof. Each Certificate shall be dated the date of its authentication.
(c) Initial Certificates of any class offered and sold in
reliance on Rule 144A shall be issued initially in the form of a single
permanent global Certificate of such class in registered form, substantially in
the form set forth as Exhibit A (the "U.S. Global Certificate"), duly executed
and authenticated by the Trustee as hereinafter provided. The U.S. Global
Certificate for each class shall be registered in the name of Cede & Co., as
nominee for the Depositary, and
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deposited with the Trustee, as custodian for the Depositary. The aggregate
principal amount of the U.S. Global Certificate for any class may from time to
time be increased or decreased by adjustments made on the records of the
Depositary or its nominee, or of the Trustee, as custodian for the Depositary
or its nominee, as hereinafter provided.
(d) Initial Certificates of any class offered and sold in
offshore transactions in reliance on Regulation S shall be issued initially in
the form of a single, temporary global Certificate of such class in registered
form, substantially in the form set forth as Exhibit A (the "Temporary Offshore
Global Certificate") duly executed and authenticated by the Trustee as
hereinafter provided. The Temporary Offshore Global Certificate for each class
shall be registered in the name of a nominee of the Depositary for credit to
the account of the Agent Members acting as depositaries for Euroclear and Cedel
and deposited with the Trustee as custodian for the Depositary. At any time
following February 1, 1998 (the "Offshore Certificates Exchange Date"), upon
receipt by the Trustee of a certificate substantially in the form of Exhibit B,
a single permanent global Certificate of the related class in registered form,
substantially in the form set forth in Exhibit A (the "Permanent Offshore
Global Certificate," and together with the Temporary Offshore Global
Certificate of such class, the "Offshore Global Certificates"), duly executed
and authenticated by the Trustee as hereinafter provided, shall be registered
in the name of a nominee for the Depositary and deposited with the Trustee, as
custodian for the Depositary, and the Registrar shall reflect on its books and
records the date of such transfer and a decrease in the principal amount of the
Temporary Offshore Global Certificate of such class in an amount equal to the
principal amount of the beneficial interest in such Temporary Offshore Global
Certificate transferred. The U.S. Global Certificate and the Offshore Global
Certificates are sometimes referred to as the "Global Certificates."
(e) Initial Certificates of any class offered and sold to
Institutional Accredited Investors shall be issued in the form of permanent
certificated Certificates of the same class in registered form, in
substantially the form set forth as Exhibit A (the "U.S. Physical
Certificates"). Certificates issued pursuant to Section 3.05(b) in exchange for
interests in any Offshore Global Certificate of any class shall be in the form
of permanent certificated Certificates of the same class 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) The definitive 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.
Section 3.02 Restrictive Legends. (a) In respect of the
Certificates of any class, subject to Section 3.06(e), unless and until (i) an
Initial Certificate of such class is sold under an effective Registration
Statement or (ii) an Initial Certificate of such class is exchanged for an
Exchange Certificate of such class pursuant to an effective Exchange Offer
Registration Statement, in each case as provided for in the Registration Rights
Agreement, each Global Certificate of such
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class (other than the Permanent Offshore Global Certificate of such class) and
each U.S. Physical Certificate of such class 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, ANY 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 UNITED AIR LINES, INC., THE TRUSTEE OR ANY AFFILIATE OF ANY
SUCH PERSON RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A)
TO UNITED AIR LINES, INC., (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING
$100,000 OR MORE AGGREGATE PRINCIPAL AMOUNT OF SUCH CERTIFICATE THAT,
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
CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE WITHIN TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE
LAST DATE ON WHICH THIS CERTIFICATE WAS HELD BY UNITED AIR LINES,
INC., THE TRUSTEE OR ANY AFFILIATE OF ANY SUCH PERSONS, 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
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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 of each class 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 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.
(b) Each Certificate of each class shall also bear the
following legend on the face thereof:
EITHER: (A) THE HOLDER IS NOT ACQUIRING THIS CERTIFICATE WITH PLAN
ASSETS OF ANY PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"); OR (B) THE
HOLDER'S PURCHASE AND HOLDING OF THIS CERTIFICATE IS EXEMPT FROM THE
PROHIBITED TRANSACTION RESTRICTIONS OF SECTION 406(A) OF ERISA AND
SECTION 4975 OF THE CODE BY AN ADMINISTRATIVE CLASS PROHIBITED
TRANSACTION EXEMPTION GRANTED BY THE DEPARTMENT OF LABOR.
Section 3.03 Authentication of Certificates. (a) The Trustee
shall duly execute, authenticate and deliver Certificates of each class in
authorized denominations equaling in the aggregate the aggregate principal
amount of the Equipment Notes to be purchased by the Trustee
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pursuant to the Note Purchase Agreement and evidencing the entire ownership of
the related Trust. Thereafter, the Trustee shall duly execute, authenticate and
deliver the Certificates of a class as herein provided.
(b) 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 of authentication 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. The Trustee shall cause
to be kept at the office or agency to be maintained by it in accordance with
the provisions of Section 7.12 a register (the "Register") for each class of
Certificates in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of Certificates of
such class and of transfers and exchanges of such Certificates as herein
provided. The Trustee shall initially be the registrar (the "Registrar") for
the purpose of registering Certificates of each class and transfers and
exchanges of such 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. 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,
the Depositary 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 the Depositary (or its agent),
and that ownership of a beneficial interest in such Certificate shall be
required to be reflected in a book entry. When Certificates of a class are
presented to the Registrar with a request to register the transfer or to
exchange them for an equal aggregate Fractional Undivided Interest of
Certificates of like class of other authorized denominations, the Registrar
shall register the transfer or make the exchange as 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 for any registration
of transfer or exchange of the Certificates, but the Trustee may require
payment by the transferor of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any
such transfer taxes or other similar governmental charges payable upon
exchanges pursuant to Section 3.10 or 9.07).
Section 3.05 Book-Entry Provisions for U.S. Global
Certificate and Offshore Global Certificates. (a) Members of, or participants
in, the Depositary ("Agent Members") shall have no rights under this Agreement
with respect to any Global Certificate of any class held on their behalf by the
Depositary, or the Trustee as its custodian, and the Depositary may be treated
by the
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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 the
Depositary or shall impair, as between the Depositary 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 of any
class, the Registrar or its duly appointed agent shall record a nominee of the
Depositary as the registered holder of such Global Certificate.
(b) Transfers of any Global Certificate shall be limited to
transfers of such Global Certificate or Offshore Global Certificate in whole,
but not in part, to nominees of the Depositary, its successor or such
successor's nominees. Beneficial interests in the U.S. Global Certificate of
any class and any Offshore Global Certificate of any class may be transferred
in accordance with the rules and procedures of the Depositary and the
provisions of Section 3.06. Beneficial interests in the U.S. Global Certificate
of any class or an Offshore Global Certificate of any class shall be delivered
to all beneficial owners in the form of U.S. Physical Certificates of such
class or Offshore Physical Certificates of such class, as the case may be, if
(i) the Depositary notifies the Trustee that it is unwilling or unable to
continue as Depositary for such U.S. Global Certificate or such Offshore Global
Certificate, as the case may be, and a successor depositary is not appointed by
the Trustee within 90 days of such notice or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a request from the
Depositary to issue Physical Certificates.
(c) Any beneficial interest in one of the Global Certificates
of any class that is transferred to a Person who takes delivery in the form of
an interest in the other Global Certificate of such class shall, upon such
transfer, cease to be an interest in such Global Certificate and become an
interest in the other Global Certificate and, accordingly, shall 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 of any class or an entire Offshore Global Certificate of any class
to the beneficial owners thereof pursuant to Section 3.05(b), 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 the
Depositary in exchange for its beneficial interest in such U.S. Global
Certificate or Offshore Global Certificate, as the case may be, an equal
aggregate Fractional Undivided Interest of U.S. Physical Certificates or
Offshore Physical Certificates, as the case may be, of like class and of
authorized denominations.
(e) Any U.S. Physical Certificate delivered in exchange for
an interest in the U.S. Global Certificate pursuant to Section 3.05(b) shall,
except as otherwise provided by Section 3.06(e), bear the Private Placement
Legend.
(f) Any Offshore Physical Certificate delivered in exchange
for an interest in an Offshore Global Certificate pursuant to Section 3.05(b)
shall, except as otherwise provided by Section 3.06(e), bear the applicable
legend regarding transfer restrictions set forth in Section 3.02(a).
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(g) The registered holder of the U.S. Global Certificate of
any class or any Offshore Global Certificate of any class 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. With respect to the
Certificates of any class, unless and until (i) an Initial Certificate of such
class is sold under an effective Registration Statement, or (ii) an Initial
Certificate is exchanged for an Exchange Certificate of such class pursuant to
an effective Exchange Offer Registration Statement, in each case pursuant to
the Registration Rights Agreement, the following provisions shall apply to such
Initial Certificates of such class (and the Registrar shall refuse to register
any exchange except in accordance with the following provisions):
(a) Transfers to Non-QIB Institutional Accredited Investors.
The following provisions shall apply with respect to the registration of any
proposed transfer of a Certificate of any class to any Institutional Accredited
Investor which is not a QIB (excluding transfers to or by Non-U.S. Persons):
(i) The Registrar shall register the transfer of any
Certificate of such class, whether or not such 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 Certificates and the last date on
which such Certificate was held by the Company, the Trustee
or any affiliate of any such persons or (y) the proposed
transferee has delivered to the Registrar a letter
substantially in the form of Exhibit D and the aggregate
principal amount of the 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
of such class, upon receipt by the Registrar of (x) the
documents, if any, required by paragraph (i) and (y)
instructions given in accordance with the Depositary'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 Fractional Cumulative Interest
represented by 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 class, 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 of any class to a QIB (excluding Non-U.S. Persons):
(i) If the Certificate to be transferred consists of
U.S. Physical Certificates of such class or an interest in
any Temporary Offshore Global Certificate of such class, the
Registrar shall register the transfer if such transfer is
being made
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by a proposed transferor who has checked the box provided for
on the form of Initial Certificate of such class 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 has signed the
certification provided for on the form of Initial Certificate
of such class stating, or has otherwise advised the Trustee
and the Registrar in writing, that it is purchasing the
Initial Certificate of such class 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 acknowledges that it
has received such information regarding the related 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 the Depositary'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
Fractional Cumulative Interest of the U.S. Global Certificate
of such class in an amount equal to the Fractional Cumulative
Interest of the U.S. Physical Certificates or interests in
the Temporary Offshore Global Certificate of such class, as
the case may be, being transferred, and the Trustee shall
cancel such Physical Certificates of such class or decrease
the Fractional Cumulative Interest of such Temporary Offshore
Global Certificate of such class so transferred.
(c) Transfers of Interests in the Permanent Offshore Global
Certificate or Offshore Physical Certificates. The Registrar shall register any
transfer of interests in the Permanent Offshore Global Certificate of any class
or Offshore Physical Certificates of any class 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 of any class to a Non-U.S. Person:
(i) With respect to the Certificates of any class,
prior to the Offshore Certificates Exchange Date, the
Registrar shall register any proposed transfer of an Initial
Certificate of such class to a Non-U.S. Person upon receipt
of a certificate substantially in the form set forth as
Exhibit C from the proposed transferor.
(ii) On and after the Offshore Certificates Exchange
Date, the Registrar shall register any proposed transfer to
any Non-U.S. Person if the Certificate of such class to be
transferred is a U.S. Physical Certificate of such class or
an interest in the U.S. Global Certificate of such class,
upon receipt of a certificate substantially in the
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form of Exhibit C from the proposed transferor. The Registrar
shall promptly send a copy of such certificate to the
Company.
(iii) Upon receipt by the Registrar of (x) the
documents, if any, required by paragraph (ii) and (y)
instructions in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its
books and records the date of such transfer and a decrease in
the Fractional Cumulative Interest of such U.S. Global
Certificate of such class in an amount equal to the
Fractional Cumulative Interest represented by the beneficial
interest in such U.S. Global Certificate of such class to be
transferred, and (B) upon receipt by the Registrar of
instructions given in accordance with the Depositary's and
the Registrar's procedures, the Registrar shall reflect on
its books and records the date and an increase in the
Fractional Cumulative Interest of the Offshore Global
Certificate of such class in an amount equal to the
Fractional Cumulative Interest of the U.S. Physical
Certificate of such class or the U.S. Global Certificate of
such class, as the case may be, to be transferred, and the
Trustee shall cancel the Physical Certificate of such class
if any, so transferred or decrease the Fractional Cumulative
Interest of such U.S. Global Certificate of such class.
(e) Private Placement Legend. Upon the transfer, exchange or
replacement of Certificates not bearing the Private Placement Legend, the
Registrar shall deliver Certificates of like class 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 of like class that bear the Private Placement Legend unless either
(i) the circumstances contemplated by paragraph (a)(i)(x) or (d)(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 shall transfer such Certificate only as provided in this
Agreement. The Registrar shall not register a transfer of any Certificate
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.
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.
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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
bona fide 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 of like class, in authorized denominations and of like Fractional
Undivided Interest and bearing a number not contemporaneously outstanding. In
connection with the issuance of any new Certificate under this Section 3.07,
the Trustee may 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 3.07 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.
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 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 Article IV and for all
other purposes whatsoever, and none of the Trustee, the Registrar or any Paying
Agent 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 the Trustee or any
agent of the Trustee other than the Registrar, be delivered to the Registrar
for cancellation and shall promptly be canceled by it. No Certificates shall be
authenticated in lieu of or in exchange for any Certificates canceled as
provided in this Section 3.09, except as expressly permitted by this Agreement.
All canceled Certificates held by the Registrar shall be destroyed and a
certification of their destruction delivered to the Trustee.
Section 3.10 Temporary Certificates. Until definitive
Certificates of any class are ready for delivery, the Trustee shall execute,
authenticate and deliver temporary Certificates of such class. Temporary
Certificates of each class shall be substantially in the form of definitive
Certificates of such class but may have insertions, substitutions, omissions
and other variations determined to be appropriate by the officers executing the
temporary Certificates of such class, as evidenced by their execution of such
temporary Certificates. If temporary Certificates of any class are issued, the
Trustee shall cause definitive Certificates of like class to be prepared
without unreasonable delay. After the preparation of definitive Certificates of
such class, the temporary
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Certificates shall be exchangeable for definitive Certificates upon surrender
of such temporary Certificates at the Corporate Trust Office of the Trustee
designated for such purpose pursuant to Section 7.12, 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 like class, in
authorized denominations and of a like Fractional Undivided Interest. Until so
exchanged, the temporary Certificates shall be entitled to the same benefits
under this Agreement as definitive Certificates.
Section 3.11 Limitation of Liability for Payments. All
payments and distributions made to Certificateholders of any class in respect
of the Certificates of such class shall be made only from the Trust Property of
the Trusts of the same class and only to the extent that the Trustee shall have
sufficient income or proceeds from such Trust Property to make such payments in
accordance with the terms of Article IV. Each Certificateholder, by its
acceptance of a Certificate, agrees that it shall look solely to the income and
proceeds from the Trust Property of the Trusts of the same class for any
payment or distribution due to such Certificateholder pursuant to the terms of
this Agreement and that it shall not have any recourse to the Company, the
Trustee, the Indenture Trustees, the Liquidity Providers, 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, and therefore shall not
have any right, obligation or liability hereunder (except as otherwise
expressly provided herein).
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01 Certificate Account and Special Payments
Account. (a) The Trustee shall establish and maintain on behalf of the
Certificateholders of each class a Certificate Account as one or more
non-interest-bearing accounts. The Trustee shall hold such Certificate Account
in trust for the benefit of the Certificateholders of such class, 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 with respect to the Certificates of such class, the
Trustee, upon receipt thereof, shall immediately deposit the aggregate amount
of such Scheduled Payment in the applicable Certificate Account.
(b) The Trustee shall establish and maintain on behalf of the
Certificateholders of each class 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 such Special Payments Account in trust for the
benefit of the Certificateholders of such class 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 with respect to the Certificates of such
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class, the Trustee, upon receipt thereof, shall immediately deposit the
aggregate amount of such Special Payments in such Special Payments Account.
(c) The Trustee shall present (or, if applicable, cause the
Subordination Agent to present) to the related Indenture Trustee to which an
Equipment Note relates such Equipment Note on the date of its stated final
maturity or, in the case of any Equipment Note which is to be redeemed in whole
pursuant to the related 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 with respect to
a class of Certificates or as soon thereafter as the Trustee has confirmed
receipt of the payment of all or any part of the Scheduled Payments due on the
Equipment Notes held in the related Trusts on such date, the Trustee shall
distribute out of the applicable Certificate Account the entire amount
deposited therein pursuant to Section 4.01(a). There shall be so distributed to
each Certificateholder of record of such class 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 Fractional Cumulative Interest in the Trusts of such class
held by such Certificateholder) of the total amount in the applicable
Certificate Account, except that, with respect to Certificates registered on
the Record Date in the name of the nominee of the Depositary (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.
(b) On each Special Distribution Date with respect to any
Special Payment with respect to a class of Certificates or as soon thereafter
as the Trustee has confirmed receipt of the Special Payments due on the
Equipment Notes held in the related Trusts or realized upon the sale of such
Equipment Notes, the Trustee shall distribute out of the applicable Special
Payments Account the entire amount of such Special Payment deposited therein
pursuant to Section 4.01(b) of such Special Payment. There shall be so
distributed to each Certificateholder of record of such class 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 Fractional Cumulative Interest
in the Trusts of such class held by such Certificateholder) of the total amount
in the applicable 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 the Depositary (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 with respect to a class of Certificates to be
mailed to each Certificateholder of such class at his address as it appears in
the Register. In the event of redemption or purchase of Equipment Notes held in
the related Trust, such notice shall be mailed not less than 20 days prior to
the Special Distribution Date for the Special Payment resulting from such
redemption or purchase, which Special Distribution Date shall be the date of
such redemption or purchase. In the case of any
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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 (taking into account any
payment to be made by the Company pursuant to Section
2.02(b)) and the amount thereof constituting principal,
Additional Payments, and interest;
(iii) the reason for the Special Payment; and
(iv) if the Special Distribution Date is the same
date as a Regular Distribution Date for the Certificates of
such class, the total amount to be received on such date for
each $1,000 face amount Certificate.
If the Additional Payments, if any, payable upon the redemption or purchase of
an Equipment Note has not been calculated at the time that the Trustee mails
notice of a Special Payment, it shall be sufficient if the notice sets forth
the other amounts to be distributed and states that any Additional Payments
received shall also be distributed.
If any redemption of the Equipment Notes held in any Trust is
canceled, the Trustee, as soon as possible after learning thereof, shall cause
notice thereof to be mailed to each Certificateholder of the related class at
its address as it appears on the Register.
Section 4.03 Statements to Certificateholders. (a) On each
Distribution Date with respect to a class Certificates, the Trustee shall
include with each distribution to Certificateholders of the related class a
Scheduled Payment or Special Payment, as the case may be, a statement setting
forth the following information (per $1,000 face amount Certificate as to (i)
and (ii) below):
(i) the amount of such distribution allocable to
principal and the amount allocable to Additional Payments;
(ii) the amount of such distribution allocable to
interest; and
(iii) the Pool Balance and the Pool Factor of the
Trusts of such class.
With respect to the Certificates registered in the name of
Cede & Co., as nominee for the Depositary, on the Record Date prior to each
Distribution Date, the Trustee shall request from the Depositary a securities
position listing setting forth the names of all Agent Members reflected on the
Depositary's books as holding interests in the Certificates on such Record
Date. On each
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Distribution Date, the Trustee shall mail to each such Agent Member the
statement described above and shall make available additional copies as
requested by such Agent Member for forwarding to holders of interests in the
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 time during such calendar year was a
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i) and (a)(ii) above with respect to the
related Trusts for such calendar year or, if such Person was a
Certificateholder of record during a portion of such calendar year, for such
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 United States
federal income tax returns. Such statement and such other items shall be
prepared on the basis of information supplied to the Trustee by the Agent
Members and shall be delivered by the Trustee to such Agent Members to be
available for forwarding by such Agent Members to the holders of interests in
the Certificates in the manner described in Section 4.03(a).
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 pending
distribution of such Special Payment pursuant to Section 4.02(b). 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(b) on the
applicable Special Distribution Date and the Trustee shall hold any such
Permitted Investments until maturity. The Trustee shall have no liability with
respect to any investment made pursuant to this Section 4.04, other than by
reason of the willful misconduct or negligence of the Trustee. All income and
earnings from such investments shall be distributed on such Special
Distribution Date as part of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01 Maintenance of Corporate Existence. The Company,
at its own cost and expense, shall 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 necessary or 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:
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(a) the corporation formed by such consolidation or into
which the Company is merged or the Person that acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety shall (i) be a "citizen of the United States" as defined in
49 U.S.C. 40102(a)(15), as amended, and (ii) hold an air carrier
operating certificate issued by the Secretary of Transportation
pursuant to Chapter 447 of Title 49 of the United States Code, as
amended, for aircraft capable of carrying 10 or more individuals or
6,000 pounds or more of cargo; if and so long as such status is a
condition of entitlement to the benefits of Section 1110 of the
Bankruptcy Reform Act of 1978, as amended (11 U.S.C.
Section 1110);
(b) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance, transfer or lease substantially all of the assets of the
Company as an entirety shall execute and deliver to the Trustee
applicable to the Certificates of each class 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 this Agreement, the
Registration Rights Agreement and the Note Purchase Agreement
applicable to the Certificates of each class to be performed or
observed by the Company; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate of the Company and an Opinion of Counsel of the
Company reasonably satisfactory to the Trustee, each stating that such
consolidation, merger, conveyance, transfer or lease and the
assumption agreement mentioned in Section 5.02(b) comply with this
Section 5.02 and that all conditions precedent provided for in this
Section 5.02 relating to such transaction have been complied with.
Upon any consolidation or merger, or any conveyance, transfer
or lease of substantially all of the assets of the Company as an entirety in
accordance with this Section 5.02, the successor corporation or Person formed
by such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Agreement
applicable to the Certificates of each class 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 any successor corporation or
Person which shall have become such in the manner prescribed in this Section
5.02 from its liability in respect of this Agreement, the Note Purchase
Agreement and any Financing Document applicable to the Certificates of such
class to which it is a party.
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ARTICLE VI
DEFAULT
Section 6.01 Events of Default. (a) Exercise of Remedies. In
respect of the Trusts of any class, upon the occurrence and during the
continuation of any Indenture Default under any related 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 B Certificateholder shall have the
right to purchase all, but not less than all, of the Class A
Certificates upon ten days' written notice to the Trustee and
each other Class B Certificateholder, provided that (A) if
prior to the end of such ten-day period any other Class B
Certificateholder notifies such purchasing Class B
Certificateholder that such other Class B Certificateholder
wants to participate in such purchase, then such other Class
B Certificateholder may join with the purchasing Class B
Certificateholder to purchase all, but not less than all, of
the Class A Certificates pro rata based on the Fractional
Cumulative Interest held by each such Class B
Certificateholder and (B) if prior to the end of such ten-day
period any other Class B Certificateholder fails to notify
the purchasing Class B Certificateholder of such other Class
B Certificateholder's desire to participate in such a
purchase, then such other Class B Certificateholder shall
lose its right to purchase such Class A Certificates pursuant
to this Section 6.01(b);
(ii) each Class C Certificateholder shall have the
right (which shall not expire upon any purchase of the Class
A Certificates by the Class B Certificateholders pursuant to
clause (i) above) to purchase all, but not less than all, of
the Class A Certificates and the Class B 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 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 Class A Certificates and
the Class B Certificates pro rata based on the Fractional
Cumulative Interest 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
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Certificateholder shall lose its right to purchase such Class
A Certificates and Class B Certificates pursuant to this
Section 6.01(b); and
(iii) each Class D Certificateholder shall have the
right (which shall not expire upon any purchase of the Class
A Certificates by the Class B Certificateholders pursuant to
clause (i) above or the purchase of the Class A Certificates
and the Class B Certificates by the Class C
Certificateholders pursuant to clause (ii) above) to purchase
all, but not less than all, of the Class A Certificates, the
Class B Certificates and the Class C Certificates upon ten
days' written notice to the 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 Certificateholder to purchase all, but
not less than all, of the Class A Certificates, the Class B
Certificates and the Class C Certificates pro rata based on
the Fractional Cumulative Interest 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, the Class B
Certificates and the Class C Certificates pursuant to this
Section 6.01(b).
The purchase price with respect to the Certificates of any
class shall be equal to the Pool Balance of the Certificates of such class,
together with accrued and unpaid interest thereon to the date of such purchase,
without Additional Payments, but including any other amounts then due and
payable to the Certificateholders of such class under this Agreement, the
Intercreditor Agreement or any other Note Document or on or in respect of the
Certificates of such class; provided, however, 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, the Certificates of such
class that 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 6.01(b). Each
Certificateholder agrees by its acceptance of its Certificate that it shall,
subject to Section 3.04, upon payment from such Class B Certificateholder(s),
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 Intercreditor Agreement, the Liquidity Facilities, in the case
of Class A Certificates and Class B Certificates, the Note Purchase Agreement,
the Note Documents and all Certificates of the class or classes being purchased
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
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obligations under this Agreement, the Intercreditor Agreement, the Liquidity
Facilities, the Note Purchase Agreement and the Note Documents. The
Certificates of the class or classes being purchased shall be deemed to be
purchased on the date payment of the purchase price is made notwithstanding the
failure of the applicable Certificateholders to deliver such Certificates
(whether in the form of Physical Certificates or beneficial interests in Global
Certificates) and, upon such a purchase, (i) the only rights of such
Certificateholders shall be to deliver such Certificates to the purchaser and
receive the purchase price for such Certificates and (ii) if the purchaser
shall so request, such Certificateholder shall comply with all the provisions
of Section 3.04 to enable new Certificates of like class 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
"Certificateholder," "Class," "Class A Certificateholder," "Class B
Certificate," "Class B Certificateholder," "Class B Trust," "Class C
Certificate," "Class C Certificateholder," "Class D Certificate," and "Class D
Certificateholder, shall have the respective meanings assigned to such terms in
the Intercreditor Agreement.
Section 6.02 Judicial Proceedings Instituted by Trustee;
Trustee May Bring Suit. If there shall be a failure to make payment of the
principal of, Additional Payments, 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 Financing Documents (subject, in the case of Equipment Notes related to
the Leased Aircraft to the rights of the applicable Owner Trustee or Owner
Participant to cure any such failure in accordance with Section 8.03(e) of 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 6.03 Control by Certificateholders. Subject to
Section 6.02 and the Intercreditor Agreement, the Certificateholders holding
Certificates of a class evidencing Fractional Cumulative Interests aggregating
not less than a majority in interest in the Trusts of the related class shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee with respect to such Trusts
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 in
the related Trusts, provided that:
(1) such Direction shall not in the opinion of the Trustee be
in conflict with any rule of law or with this Agreement and would not
involve the Trustee in personal liability or expense;
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(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Certificateholders of
such class 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 6.04 Waiver of Past Defaults. Subject to the
Intercreditor Agreement, the Certificateholders holding Certificates of a class
evidencing Fractional Cumulative Interests aggregating not less than a majority
in interest in the Trusts of such class (i) may on behalf of all of the
Certificateholders of such class waive any past Event of Default hereunder or
under the related Trust Supplements with respect to such class and its
consequences or (ii) if the Trustee is the Controlling Party, may direct the
Trustee to instruct the applicable Indenture Trustee to waive any past
Indenture Default under the related Indenture with respect to such class and
its consequences, and thereby annul any Direction given by such
Certificateholders or the Trustee to such Indenture Trustee with respect
thereto, except a default:
(1) in the deposit of any Scheduled Payment or Special
Payment under Section 4.01 or in the distribution of any payment under
Section 4.02 on the Certificates of such class;
(2) in the payment of the principal of, Additional Payments,
if any, or interest on the Equipment Notes held in the Trusts of such
class; or
(3) in respect of a covenant or provision hereof which under
Article X cannot be modified or amended without the consent of each
Certificateholder holding an Outstanding Certificate of such class
affected thereby.
Upon any such waiver, such default shall cease to exist with
respect to the Certificates of such class and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose in respect of
such class and any direction given by the Trustee on behalf of the
Certificateholders of such class to the relevant Indenture Trustee shall be
annulled with respect thereto; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Upon any such waiver, the Trustee of such class shall vote the
Equipment Notes issued under the relevant Indenture to waive the corresponding
Indenture Default.
Section 6.05 Right of Certificateholders to Receive Payments
Not to Be Impaired. Anything in this Agreement to the contrary notwithstanding,
including Section 6.06, but subject to the Intercreditor Agreement, the right
of any Certificateholder to receive distributions of payments required pursuant
to Section 4.02 on the applicable Certificates when due, or to institute suit
for the enforcement of any such payment on or after the applicable Regular
Distribution Date or Special Distribution Date, shall not be impaired or
affected without the consent of such Certificateholder.
Section 6.06 Certificateholders May Not Bring Suit Except
Under Certain Conditions. A Certificateholder of any class shall not have the
right to institute any suit, action or
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proceeding at law or in equity or otherwise with respect to this Agreement, for
the appointment of a receiver or for the enforcement of any other remedy under
this Agreement, unless:
(1) such Certificateholder previously shall have given
written notice to the Trustee of a continuing Event of Default;
(2) the Certificateholders holding Certificates of such class
evidencing Fractional Cumulative Interests aggregating not less than
25% 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 7.03(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 of such class evidencing
Fractional Cumulative Interests aggregating not less than a majority
in interest in the related Trusts.
It is understood and intended that no one or more of the
Certificateholders of any class shall have any right in any manner whatsoever
hereunder or under each related Trust Supplement or under the Certificates of
such class to (i) surrender, impair, waive, affect, disturb or prejudice any
property in the Trust Property of the related Trusts or the lien of any related
Indenture on any property subject thereto, or the rights of the
Certificateholders of such class 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 of such class or (iii) enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all the Certificateholders of such class subject to the
provisions of this Agreement.
Section 6.07 Remedies Cumulative. Every remedy given
hereunder to the Trustee or to any of the Certificateholders of any class 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.
ARTICLE VII
THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities. (a) Except
during the continuance of an Event of Default in respect of the Trusts of a
class, the Trustee undertakes to perform such duties in respect of such Trusts
as are specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Trustee.
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(b) If an Event of Default in respect of the Trusts of a
class has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Agreement in respect of such Trusts, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of its own
affairs.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(i) this Subsection shall not be construed to limit
the effect of Section 7.01(a); and
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of
the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts.
(d) Whether or not herein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 7.01.
Section 7.02 Notice of Defaults. As promptly as practicable
after, and in any event within 90 days after, the occurrence of any default (as
such term is defined below) hereunder known to the Trustee, the Trustee shall
transmit by mail to the Company, any related Owner Trustees, the related Owner
Participants, the related Indenture Trustees and the Certificateholders holding
Certificates of the related class in accordance with Section 313(c) of the
Trust Indenture Act, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default on the payment of the principal, Additional
Payments, if any, or interest on any Equipment Note, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Certificateholders of the related class. For
the purpose of this Section 7.02 in respect of the Trusts of any class, the
term "default" means any event that is, or after notice or lapse of time or
both would become, an Event of Default in respect of such Trusts.
Section 7.03 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;
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(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a written description of the
subject matter thereof accompanied by an Officer's Certificate and an
Opinion of Counsel as provided in Section 1.02;
(c) whenever in the administration of this 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 related Owner Trustee or any related
Indenture Trustee;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement at the
Direction of any of the Certificateholders pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the cost, expenses and
liabilities which might be incurred by it in compliance with such
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, 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 perform any duties under this 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;
(h) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the Direction of the Certificateholders holding Certificates of
any class evidencing Fractional Cumulative Interests aggregating not
less than a majority in interest in the related Trusts 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; and
(i) the Trustee shall not be required to expend or risk its
own funds in the performance of any of its duties under this
Agreement, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk is not reasonably
assured to it.
Section 7.04 Not Responsible for Recitals or Issuance of
Certificates. The recitals contained herein and in the Certificates of each
class, except the certificates of authentication, shall not be taken as the
statements of the Trustee, and the Trustee assumes no responsibility for their
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correctness. Subject to Section 7.15, the Trustee makes no representations as
to the validity or sufficiency of this Basic Agreement or any Trust Supplement,
the Intercreditor Agreement, the Note Purchase Agreement, the Registration
Rights Agreement, any Equipment Notes, the Certificates of any class or any
other Financing Document, except that the Trustee hereby represents and
warrants that this Basic Agreement has been, and each Trust Supplement, the
Intercreditor Agreement, the Registration Rights Agreement, the Note Purchase
Agreement and each Certificate of each class to which such Trustee is a party
shall be, executed, authenticated and delivered by one of its officers who is
duly authorized to execute, authenticate and deliver such document on its
behalf.
Section 7.05 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, any Owner Trustees or
the Indenture Trustees with the same rights it would have if it were not
Trustee, Paying Agent, Registrar or such other agent.
Section 7.06 Money Held in Trust. Money held by the Trustee
or the Paying Agent in trust hereunder or under any Trust Supplement need not
be segregated from other funds except to the extent required herein or by law
and neither the Trustee nor the Paying Agent shall have any liability for
interest upon any such moneys except as provided for herein.
Section 7.07 Compensation and Reimbursement. The Company
agrees:
(1) to pay, or cause to be paid, to the Trustee from time to
time reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein or in any
Trust Supplement, to reimburse, or cause to be reimbursed, the Trustee
upon its request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Basic Agreement or any Trust
Supplement (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 7.15; and
(3) to indemnify, or cause to be indemnified, the Trustee
pursuant to Section 7 of the Participation Agreements relating to the
Leased Aircraft and Section 5(b) of the Participation Agreements
relating to the Owned Aircraft.
The Trustee shall be entitled to reimbursement from, and
shall have a lien prior to the Certificates of each class upon, the Trust
Property, with respect to such class or the related Trusts for any tax incurred
without negligence, bad faith or willful misconduct, on its part, arising out
of
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or in connection with the acceptance or administration of such Trusts (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. If the Trustee reimburses itself from the
Trust Property of such Trusts for any such tax, it shall mail a brief report
within 30 days setting forth the circumstances thereof to all
Certificateholders of such class as their names and addresses appear in the
Register.
Section 7.08 Corporate Trustee Required; Eligibility. Each
Trust shall at all times have a Trustee which shall be a financial institution
unaffiliated with and independent of the Company, 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 and having 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 7.08, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
conditions so published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.08 to act as Trustee of any
Trust, the Trustee shall resign immediately as Trustee of such Trust in the
manner and with the effect specified in Section 7.09.
Section 7.09 Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of a
successor Trustee of any Trust pursuant to this Article VII shall become
effective until the acceptance of appointment by the successor Trustee under
Section 7.10.
(b) The Trustee may resign at any time as trustee of any or
all Trusts by giving prior written notice thereof to the Company, the
Authorized Agents, the related Owner Trustees and the related Indenture
Trustees. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Company, the Authorized Agents, the related Owner
Trustees, the related Indenture Trustees and the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time as trustee of the
Trusts of any class by Direction of the Certificateholders of the related class
holding Certificates of such class evidencing Fractional Cumulative Interests
aggregating not less than a majority in interest in such Trusts delivered to
the Trustee and to the Company, the related Owner Trustees and the related
Indenture Trustees.
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(d) If at any time in respect of the Trusts of any class:
(i) the Trustee shall fail to comply with Section
310 of the Trust Indenture Act, if applicable, after written
request therefor by the Company or by any Certificateholder
of the related class who has been a bona fide
Certificateholder for at least six months;
(ii) the Trustee shall cease to be eligible under
Section 7.08 and shall fail to resign after written request
therefor by the Company or by any such Certificateholder; or
(iii) 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 of the related class who has been a bona fide
Certificateholder for at least six months may, on behalf of itself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee of such
Trusts.
(e) If a Responsible Officer of the Trustee shall obtain
actual knowledge of an Avoidable Tax in respect of the Trusts of any class
which has been or is likely to be asserted, the Trustee shall promptly notify
the Company and shall, within 30 days of such notification, resign as Trustee
of such Trust hereunder unless within such 30-day period the Trustee shall have
received notice that the Company has agreed to pay such tax. The Company shall
promptly appoint a successor Trustee of such Trusts in a jurisdiction where
there are no Avoidable Taxes.
(f) If the Trustee shall resign, be removed or become
incapable of acting as trustee of the Trusts of any class or if a vacancy shall
occur in the office of the Trustee of the Trusts for any cause, the Company
shall promptly appoint a successor Trustee of such Trusts. If, within one year
after such resignation, removal or incapability, or other occurrence of such
vacancy, a successor Trustee of such Trusts shall be appointed by Direction of
the Certificateholders of the related class holding Certificates of such class
evidencing Fractional Cumulative Interests aggregating not less than a majority
in interest in such Trusts delivered to the Company, the related Owner
Trustees, the related Indenture Trustees and the retiring Trustee, and the
Company approves such appointment, which approval shall not be unreasonably
withheld, then the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee of such Trusts and
supersede the successor Trustee of such Trusts appointed as provided above. If
no successor Trustee shall have been so appointed as provided above and
accepted appointment in the manner hereinafter provided, any Certificateholder
who has been a bona fide Certificateholder of the related class 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 of such Trusts.
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(g) The successor Trustee of the Trusts of a class shall give
notice of the resignation and removal of the Trustee and appointment of the
successor Trustee by mailing written notice of such event by first-class mail,
postage prepaid, to the Certificateholders of the related class as their names
and addresses appear in the Register. Each notice shall include the name of
such successor Trustee and the address of its Corporate Trust Office.
Section 7.10 Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute and deliver to the Company,
the Authorized Agents, the Owner Trustees and the Indenture Trustees and to the
retiring Trustee with respect to any or all Trusts an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
with respect to such Trusts shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall execute and
deliver an instrument transferring to such successor Trustee all such rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all Trust Property held by such retiring
Trustee in respect of such Trusts hereunder, subject nevertheless to its lien,
if any, provided for in Section 7.07. Upon request of any such successor
Trustee, the Company, the retiring Trustee and such successor Trustee shall
execute and deliver any and all instruments containing such provisions as shall
be necessary or desirable to transfer and confirm to, and for more fully and
certainly vesting in, such successor Trustee all such rights, powers and
trusts.
If a successor Trustee is appointed with respect to one or
more (but not all) Trusts, the Company, the predecessor Trustee and each
successor Trustee with respect to any Trust shall execute and deliver a
supplemental agreement hereto which shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the predecessor Trustee with respect to the Trusts as to which
the predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Basic Agreement and the applicable Trust Supplements as shall be necessary to
provide for or facilitate the administration of the Trusts hereunder by more
than one Trustee.
It is understood that nothing herein or in any supplemental
agreement or Trust Supplement shall constitute any Trustee a co-Trustee of the
same Trust and that each Trustee shall be the Trustee of one or more separate
Trusts.
No institution shall accept its appointment as a Trustee
hereunder unless at the time of such acceptance such institution shall be
qualified and eligible under this Article VII.
Section 7.11 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 VII, without the execution
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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 7.12 Maintenance of Agencies. (a) With respect to
each class of Certificates, there shall at all times be maintained an office or
agency in the location set forth in Section 12.03 where Certificates of such
class may be presented or surrendered for registration of transfer or for
exchange, and for payment thereof and where notices and demands to or upon the
Trustee in respect of such Certificates or this Agreement may be served;
provided, however, that, if it shall be necessary that the Trustee maintain an
office or agency in another location with respect to the Certificates of any
class (e.g., the Certificates shall be represented by Physical Certificates and
shall be listed on a national securities exchange), the Trustee shall make all
reasonable efforts to establish such an office or agency. Written notice of the
location of each such other office or agency and of any change of location
thereof shall be given by the Trustee to the Company, any Owner Trustees, the
Indenture Trustees (in the case of any Owner Trustee or Indenture Trustee, at
its address specified in the Note Purchase Agreement or such other address as
may be notified to the Trustee) and the Certificateholders of such class. In
the event that no such office or agency shall be maintained or no such notice
of location or of change of location shall be given, presentations and demands
may be made and notices may be served at the Corporate Trust Office of the
Trustee.
(b) There shall at all times be a Registrar and a Paying
Agent hereunder with respect to the Certificates of each class. 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 combined capital and surplus of
at least $75,000,000, and shall be authorized under such laws to exercise
corporate trust powers, subject to supervision by Federal or state authorities.
The Trustee shall initially be the Paying Agent and, as provided in Section
3.04, Registrar hereunder with respect to the Certificates of each class. 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 7.12, 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.
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(d) Any Authorized Agent may at any time resign by giving
written notice of resignation to the Trustee, the Company, any related Owner
Trustees and the related Indenture Trustees. The Company may, and at the
request of the Trustee shall, at any time terminate the agency of any
Authorized Agent by giving written notice of termination to such Authorized
Agent and to the Trustee. Upon the resignation or termination of an Authorized
Agent or in case at any time any such Authorized Agent shall cease to be
eligible under this Section 7.12 (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 7.12. The
Company shall give written notice of any such appointment made by it to the
Trustee, any related Owner Trustees and the related Indenture Trustees; and in
each case the Trustee shall mail notice of such appointment to all
Certificateholders of the related class as their names and addresses appear on
the Register for such class.
(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 7.13 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 7.13. Moneys so deposited and held in trust shall constitute a
separate trust fund for the benefit of the Certificateholders with respect to
which such money was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.14 Registration of Equipment Notes in Name of
Subordination Agent. The Trustee agrees that all Equipment Notes to be
purchased by the Trusts of any class 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 of such class, 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 7.15 Representations and Warranties of Trustee. The
Trustee hereby represents and warrants that:
(a) the Trustee is a national banking association organized
and validly existing in good standing under the Federal laws of the
United States;
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(b) the Trustee has full power, authority and legal right to
execute, deliver, and perform this Basic Agreement, each Trust
Supplement executed and delivered on the date hereof, each Certificate
executed, authenticated and delivered on the date hereof, the
Intercreditor Agreement, the Registration Rights Agreement, the Note
Purchase Agreement and the Participation Agreements and has taken all
necessary action to authorize the execution, delivery and performance
by it of this Basic Agreement, such Trust Supplement, such
Certificate, the Intercreditor Agreement, the Registration Rights
Agreement, the Note Purchase Agreement and the Participation
Agreements;
(c) the execution, delivery and performance by the Trustee of
this Basic Agreement, each Trust Supplement executed and delivered on
the date hereof, each Certificate executed, authenticated and
delivered on the date hereof, the Intercreditor Agreement, the
Registration Rights Agreement, the Note Purchase Agreement and the
Participation Agreements (i) shall not violate any provision of United
States federal law or the law of the state of the United States where
it is located 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) shall not violate any provision of the articles of association or
by-laws of the Trustee, or (iii) shall 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 of any Trust pursuant to the
provisions of any mortgage, indenture, contract, agreement or other
undertaking to which it is a party, which violation, default or lien
could reasonably be expected to have an adverse effect on the
Trustee's performance or ability to perform its duties hereunder or
thereunder or on the transactions contemplated herein or therein;
(d) the execution, delivery and performance by the Trustee of
this Basic Agreement, each Trust Supplement executed and delivered on
the date hereof, each Certificate executed, authenticated and
delivered on the date hereof, the Intercreditor Agreement, the
Registration Rights Agreement, the Note Purchase Agreement and the
Participation Agreements shall not require the authorization, consent,
or approval of, the giving of notice to, the filing or registration
with, or the taking of any other action in respect of, any
governmental authority or agency of the United States or the State of
the United States where it is located regulating the banking and
corporate trust activities of the Trustee; and
(e) this Basic Agreement, each Trust Supplement executed and
delivered on the date hereof, each Certificate executed, authenticated
and delivered on the date hereof, the Intercreditor Agreement, the
Registration Rights Agreement, the Note Purchase Agreement and the
Participation Agreements have been duly executed and delivered by the
Trustee and constitute the legal, valid, and binding agreements of the
Trustee, enforceable against it in accordance with their respective
terms, provided that enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and (ii) general
principles of equity.
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Section 7.16 Withholding Taxes; Information Reporting. As to
the Certificates of any class, the Trustee, as trustee of the related grantor
trust created by this Agreement, shall exclude and withhold from each
distribution of principal, Additional Payments, if any, and interest and other
amounts due under this Agreement or under the Certificates of such class any
and all withholding taxes applicable thereto as required by law. The Trustee
agrees to act as such withholding agent and, in connection therewith, whenever
any present or future taxes or similar charges are required to be withheld with
respect to any amounts payable in respect of the Certificates of such class, to
withhold such amounts and timely pay the same to the appropriate authority in
the name of and on behalf of the Certificateholders of such class, that it
shall file any necessary withholding tax returns or statements when due, and
that, as promptly as possible after the payment thereof, it shall deliver to
each such Certificateholder appropriate documentation showing the payment
thereof, together with such additional documentary evidence as such
Certificateholders of such class 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.
Section 7.17 Trustee's Liens. The Trustee in its individual
capacity agrees that it shall, in respect of each Trust created by this
Agreement, at its own cost and expense promptly take any action as may be
necessary to duly discharge and satisfy in full any mortgage, pledge, lien,
charge, encumbrance, security interest or claim ("Trustee's Liens") on or with
respect to the Trust Property of such Trust which is attributable to the
Trustee either (i) in its individual capacity and which is unrelated to the
transactions contemplated by this Agreement, the Intercreditor Agreement, the
Note Purchase Agreement or the Note Documents, or (ii) as Trustee hereunder or
in its individual capacity and which arises out of acts or omissions which are
not contemplated by this Agreement.
Section 7.18 Preferential Collection of Claims. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship listed in Section 311(b) of the Trust Indenture Act. If
the Trustee shall resign or be removed as Trustee, it shall be subject to
Section 311(a) of the Trust Indenture Act to the extent provided therein.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01 The Company to Furnish Trustee with Names and
Addresses of Certificateholders. The Company shall furnish to the Trustee
within 15 days after each Record Date with respect to a Scheduled Payment, and
at such other times as the Trustee may request in writing within 30 days after
receipt by the Company of any such request, a list, in such form as the Trustee
may reasonably require, of all information in the possession or control of the
Company as to the names and addresses of the Certificateholders of each class,
in each case as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that so long as the Trustee is the sole Registrar
for such class, no such list need be furnished; and provided, further, that no
such list
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need be furnished for so long as a copy of the Register is being furnished to
the Trustee pursuant to Section 7.12.
Section 8.02 Preservation of Information; Communications to
Certificateholders. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders of each
class contained in the most recent list furnished to the Trustee as provided in
Section 7.12 or Section 8.01, as the case may be, and the names and addresses
of Certificateholders of each class 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 7.12 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 issuance of any
class of Certificates, the Trustee shall transmit to the Certificateholders of
each class, as provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of such May 15, if required by Section 313(a) of the Trust
Indenture Act.
Section 8.04 Reports by the Company. The Company shall:
(a) file with the Trustee, within 30 days after the Company
is required to file the same with the SEC, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of any
of the foregoing as the SEC may from time to time by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the SEC, in accordance with rules
and regulations prescribed by the SEC, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed in such rules and
regulations;
(b) file with the Trustee and the SEC, in accordance with the
rules and regulations prescribed by the SEC, such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants of the Company provided for in this Agreement, as may
be required by such rules and regulations, including, in the case of annual
reports, if required by such rules and regulations, certificates or opinions of
independent public accountants;
(c) transmit to all Certificateholders, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act such summaries
of any information, documents and reports required to be filed by the Company
pursuant to Sections 8.04(a) and (b) 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
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knowledge of the Company's compliance with all conditions and covenants of the
Company under this Agreement (it being understood that for purposes of this
Section 8.04(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 of any class,
the Company may (but shall not be required to), and the Trustee (subject to
Section 9.03) shall, at the Company's request, at any time and from time to
time, enter into one or more agreements supplemental hereto or, if applicable,
to the Intercreditor Agreement, the Note Purchase Agreement or any Liquidity
Facility in form reasonably satisfactory to the Trustee, for any of the
following purposes:
(1) to provide for the formation of a Trust, the issuance of a
class of Certificates and the other matters contemplated by Section 2.01(b);
(2) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company contained herein;
(3) to add to the covenants of the Company for the benefit of
the Certificateholders of any class, or to surrender any right or power in this
Agreement, the Intercreditor Agreement, the Note Purchase Agreement or any
Liquidity Facility conferred upon the Company;
(4) (a) to correct or supplement any provision in this
Agreement, the Intercreditor Agreement, the Note Purchase Agreement or the
Liquidity Facility that may be defective or inconsistent with any other
provision herein or in any Trust Supplement, (b) to cure any ambiguity or
correct any mistake or (c) to modify any other provision with respect to
matters or questions arising under this Agreement, the Intercreditor Agreement,
the Note Purchase Agreement or the Liquidity Facility, provided that any such
action shall not materially adversely affect the interests of the
Certificateholders of any class;
(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
Basic Agreement was executed or any corresponding provision in any similar
Federal statute hereafter enacted;
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(6) to evidence and provide for the acceptance of appointment
under this Agreement by the Trustee or a successor Trustee with respect to one
or more Trusts and to add to or change any of the provisions of this Agreement
as shall be necessary to provide for or facilitate the administration of the
Trusts hereunder and thereunder by more than one Trustee, pursuant to the
requirements of Section 7.10;
(7) to provide the information required under Sections 7.12
and 12.03 as to the Trustee;
(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 Registration Statement; or
(9) to comply with any requirement of the SEC, any applicable
law, rules or regulations of any exchange or quotation system on which the
Certificates of any class are listed or of any regulatory body.
Section 9.02 Supplemental Agreements with Consent of
Certificateholders. With respect to the Trusts of each class and the class of
Certificates relating thereto, with the consent of the Certificateholders
holding Certificates evidencing Fractional Cumulative Interests aggregating not
less than a majority in interest in such Trust, by Direction of said
Certificateholders delivered to the Company and the Trustee, the Company may
(with the consent of the Owner Trustees, if any, relating to such Certificates,
which consent shall not be unreasonably withheld), and the Trustee (subject to
Section 9.03) shall, enter into an agreement or agreements supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement, the Intercreditor
Agreement, any Liquidity Facility, the Registration Rights Agreement or the
Note Purchase Agreement 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 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 of payments on the Equipment Notes held
in such Trust or distributions that are required to be made herein on
any Certificate of such class, or change any date of payment on any
Certificate of such class, or change the place of payment where, or
the coin or currency in which, any Certificate of such class 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;
(2) permit the disposition of any Equipment Note included in
the Trust Property of such Trust except as permitted by this
Agreement, or otherwise deprive such Certificateholder of the benefit
of the ownership of the Equipment Notes in such Trust;
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(3) reduce the percentage of the aggregate Fractional
Cumulative Interests of such Trusts which is required for any such
supplemental agreement, or reduce such percentage required for any
waiver of compliance with certain provisions of this Agreement or
certain defaults hereunder and their consequences provided for in this
Agreement; or
(4) waive, amend or modify Section 2.4, 3.2 or 3.3 of the
Intercreditor Agreement in a manner that has a material adverse effect
on the Certificateholders.
It shall not be necessary for any Direction of such
Certificateholders under this Section 9.02 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 has a material adverse effect on any
interest, right, duty, immunity or indemnity in favor of the Trustee under this
Basic Agreement or any Trust Supplement, the Trustee may in its discretion
decline to execute such document.
Section 9.04 Execution of Supplemental Agreements. In
executing, or accepting the additional trusts created by, any supplemental
agreement permitted by this Article IX or the modifications thereby of the
trusts created by this Agreement, the Trustee shall be entitled to receive upon
its request, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental agreement is authorized
or permitted by this Agreement.
Section 9.05 Effect of Supplemental Agreements. Upon the
execution of any supplemental agreement under this Article IX, this Basic
Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Basic Agreement for all purposes; and every
Certificateholder of each class theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby to the extent applicable to such
class.
Section 9.06 Conformity with Trust Indenture Act. Every
supplemental agreement executed pursuant to this Article IX shall conform to
the requirements of the Trust Indenture Act as then in effect.
Section 9.07 Reference in Certificates to Supplemental
Agreements. Certificates of each class authenticated and delivered after the
execution of any supplemental agreement applicable to such class pursuant to
this Article IX may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental agreement; and, in such case, suitable
notation may be made upon Outstanding Certificates of such class 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. If the Trustee, as holder (or beneficial owner through
the Subordination Agent) of any Equipment Note in trust for the benefit of the
Certificateholders of any class or as Controlling Party under the Intercreditor
Agreement, receives a request pursuant to Section 9.02 or Section 6.04 for a
consent to any amendment, modification, waiver or supplement under any related
Indenture or other related Note Document, the Trustee shall forthwith send a
notice of such proposed amendment, modification, waiver or supplement to each
Certificateholder of such class registered on the Register as of the date of
such notice. The Trustee shall request from the Certificateholders of such
class 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) the Equipment Notes if a vote has been called for
with respect thereto. If 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 such Equipment Notes (or 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 of such class 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 (i) as Controlling Party, the Trustee shall vote as directed
in such Certificateholder Direction by the Certificateholders of such class
evidencing a Fractional Cumulative Interest aggregating not less than a
majority in interest in the related Trusts. For purposes of the 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, with respect to the Certificates of any class, in its own
discretion and at its own direction, consent and notify the relevant Indenture
Trustee of such consent (or direct the Subordination Agent to consent and
notify such Indenture Trustee of such consent) to any amendment, modification,
waiver or supplement under the relevant Indenture or any other Note Document,
if an Event of Default hereunder shall have occurred and be continuing, or if
such amendment, modification or waiver shall not adversely affect the interests
of the Certificateholders of such class.
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ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01 Termination of the Trusts. In respect of the
Trusts of each class created by the Basic Agreement as supplemented by a
related Trust Supplement, the respective obligations and responsibilities of
the Company and the Trustee created under this Agreement and such Trusts
created hereby shall terminate upon the distribution to all Holders of the
Certificates of the class of such Trusts and the Trustee of all amounts
required to be distributed to them pursuant to this Agreement and the
disposition of all property held as part of the Trust Property of the related
class of such Trusts; provided, however, that in no event shall such Trusts
continue beyond 21 years less one day following the death of the last survivor
of all descendants living on the date hereof of Xxxxxx X. Xxxxxxx, Xx., unless
applicable law shall permit a longer term, in which case such longer term shall
apply.
Notice of any termination of the Trusts of a class,
specifying the applicable Regular Distribution Date (or applicable Special
Distribution Date, as the case may be) upon which the Certificateholders of
such class may surrender their Certificates to the Trustee for payment of the
final distribution and cancellation, shall be mailed promptly by the Trustee to
Certificateholders of such class not earlier than the 60th day and not later
than the 26th day preceding such final distribution specifying (A) the Regular
Distribution Date (or Special Distribution Date, as the case may be) upon which
the proposed final payment of the Certificates of such class shall be made upon
presentation and surrender of Certificates of such class 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 of such class at the office or agency of the Trustee therein
specified. The Trustee shall give such notice to the Registrar at the time such
notice is given to Certificateholders of such class. Upon presentation and
surrender of the Certificates of such class in accordance with such notice, the
Trustee shall cause to be distributed to Certificateholders of such class such
final payments.
If all of the Certificateholders of such class shall not
surrender their Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders of such class to
surrender their Certificates for cancellation and receive the final
distribution with respect thereto. No additional interest shall accrue on the
Certificates of such class after the Regular Distribution Date (or Special
Distribution Date, as the case may be) specified in the first written notice.
If any money held by the Trustee for the payment of distributions on the
Certificates of such class shall remain unclaimed for two years (or such lesser
time as the Trustee shall be satisfied, after 60 days' notice from the Company,
is one month prior to the escheat period provided under applicable law) after
the final distribution date with respect thereto, the Trustee shall pay to each
Indenture Trustee the appropriate amount of money relating to such Indenture
Trustee and shall give written notice thereof to the related Owner Trustees,
the Owner Participants and the Company.
55
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ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Limitation on Rights of Certificateholders. The
death or incapacity of any Certificateholder of any class shall not operate to
terminate this Agreement or the related Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations, and
liabilities of the parties hereto or any of them.
Section 12.02 Certificates Nonassessable and Fully Paid.
Except as set forth in the last sentence of this Section 12.02,
Certificateholders of each class shall not be personally liable for obligations
of the related Trusts, the Fractional Undivided Interests represented by the
Certificates of such class shall be nonassessable for any losses or expenses of
such Trust or for any reason whatsoever, and Certificates of such class, upon
authentication thereof by the Trustee pursuant to Section 3.03, are and shall
be deemed fully paid. No Certificateholder of such class shall have any right
(except as expressly provided herein) to vote or in any manner otherwise
control the operation and management of the related Trust Property, the related
Trust, or the obligations of the parties hereto, nor shall anything set forth
herein, or contained in the terms of the Certificates of such class, be
construed so as to constitute the Certificateholders of such class from time to
time as partners or members of an association. Neither the existence of any
Trust nor any provision herein is intended to or shall limit the liability the
Certificateholders of each class would otherwise incur if such
Certificateholders owned the related Trust Property as co-owners, or incurred
any obligations of the related Trust, directly rather than through the related
Trust.
Section 12.03 Notices. (a) Unless otherwise specifically
provided herein or in the applicable Trust Supplement with respect to any
Trust, all notices required under the terms and provisions of this Basic
Agreement or such Trust Supplement with respect to such Trust shall be in
English and in writing, and any such notice may be given by United States mail,
courier service or telecopy, and any such notice shall be effective when
delivered or received or, if mailed, three days after deposit in the United
States mail with proper postage for ordinary mail prepaid,
if to the Company, to:
U.S. Mail Overnight Delivery Service
--------- --------------------------
United Air Lines, Inc. United Air Lines, Inc.
X.X. Xxx 00000 0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000 Elk Xxxxx Xxxxxxxx, XX 00000
Attn: Vice President and Attn: Vice President and
Treasurer Treasurer
Telecopy: (000) 000-0000
56
63
if to the Trustee, to:
First Security Bank, National Association
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust Department
Telecopy: (000) 000-0000
(b) The Company or the Trustee as to any class of
Certificates, by written notice to the other, may designate additional or
different addresses for subsequent notices or communications.
(c) Any notice or communication to Certificateholders of any
class shall be mailed by first-class mail to the addresses for
Certificateholders of such class shown on the Register kept by the Registrar.
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 of such class.
(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. 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.
(e) If the Company mails a notice or communication to the
Certificateholders of such class, it shall mail a copy to the Trustee and to
each Paying Agent for such class at the same time.
(f) The Trustee shall promptly furnish the Company with a
copy of any demand, notice or written communication received by the Trustee
hereunder from any Certificateholder, Owner Trustee or Indenture Trustee.
Section 12.04 Governing Law. THIS BASIC AGREEMENT, ALL TRUST
SUPPLEMENTS AND ALL CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW)) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 12.05 Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions, or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or any
Trust, or of the Certificates of any class or the rights of the
Certificateholders thereof.
57
64
Section 12.06 Trust Indenture Act Controls. This Agreement is
subject to the provisions of the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions.
Section 12.07 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 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 of any class, express or implied, shall give
to any Person, other than the parties hereto and their successors hereunder,
and the Certificateholders of each class, 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 of
any class shall not be a Business Day with respect to such class, 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 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 Intention of Parties. The parties hereto intend
that each 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. The powers granted and obligations undertaken pursuant to
this Agreement shall be so construed so as to further such intent.
Section 12.13 Registration of Equipment Notes in Name of
Subordination Agent. The Trustee agrees that all Equipment Notes to be
purchased by any Trust shall be issued in the name of the Subordination Agent
under the Intercreditor Agreement 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.
58
65
Section 12.14 Communication by Certificateholders with other
Certificateholders. Certificateholders of any class may communicate with other
Certificateholders of such class with respect to their rights under this Basic
Agreement, the related Trust Supplements or the Certificates of such class
pursuant to Section 312(b) of the Trust Indenture Act. The Company, the Trustee
and any and all other persons benefitted by this Agreement shall have the
protection afforded by Section 312(c) of the Trust Indenture Act.
59
66
IN WITNESS WHEREOF, the parties have caused this Basic Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first written above.
UNITED AIR LINES, INC.
By: /s/ XXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
PASS THROUGH TRUST AGREEMENT
S-1
67
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, as Trustee
By: /s/ C. XXXXX XXXXXXX
-------------------------------
Name: C. Xxxxx Xxxxxxx
Title: Vice President
PASS THROUGH TRUST AGREEMENT
S-2
68
EXHIBIT A
FORM OF CERTIFICATE
REGISTERED $_____________________________
Fractional Undivided Interest*
No. R - _____
CUSIP NO. ____________________
[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, ANY 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 UNITED AIR LINES, INC., THE TRUSTEE OR ANY AFFILIATE OF ANY
SUCH PERSON RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A)
TO UNITED, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING $100,000 OR MORE AGGREGATE
PRINCIPAL AMOUNT OF SUCH CERTIFICATE THAT, 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
------------
*/ Denominations of $100,000 and integral multiples of $1,000 in excess
thereof (except one Class D Certificate may be issued in a different
denomination).
PASS THROUGH TRUST AGREEMENT
A-1
69
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT; AND (3) AGREES THAT
IT WILL DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS CERTIFICATE WITHIN TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE LAST DATE ON WHICH
THIS CERTIFICATE WAS HELD BY UNITED AIR LINES, INC., THE TRUSTEE OR
ANY AFFILIATE OF ANY SUCH PERSONS, 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.]*
[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 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.]**
------------
*/ Not to be included on the face of the Permanent Offshore Global
Certificate.
**/ To be included on the face of each Global Certificate.
PASS THROUGH TRUST AGREEMENT
A-2
70
[EITHER: (A) THE HOLDER IS NOT ACQUIRING THIS CERTIFICATE WITH PLAN
ASSETS OF ANY PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"); OR (B) THE
HOLDER'S PURCHASE AND HOLDING OF THIS CERTIFICATE IS EXEMPT FROM THE
PROHIBITED TRANSACTION RESTRICTIONS OF SECTION 406(A) OF ERISA AND
SECTION 4975 OF THE CODE BY AN ADMINISTRATIVE CLASS PROHIBITED
TRANSACTION EXEMPTION GRANTED BY THE DEPARTMENT OF LABOR.]*
UNITED AIRLINES 1997-1[A][B][C][D] PASS THROUGH TRUST
UNITED AIRLINES [INITIAL] [EXCHANGE] ENHANCED PASS
THROUGH CERTIFICATE, SERIES 1997-1[A][B][C][D]
Final Expected Distribution Date: December 2, 2002
evidencing a fractional undivided interest in a trust, the property of which
includes certain equipment notes each secured by an Aircraft owned by or leased
to United Air Lines, Inc.
THIS CERTIFIES THAT _______________, for value received, is
the registered owner of a _____________ Dollars ($ dollars) Fractional
Undivided Interest in the United Airlines 1997-1[A][B][C][D] Pass Through Trust
(the "Trust") created by First Security Bank, National Association, as trustee
(the "Trustee") pursuant to a Pass Through Trust Agreement, dated as of
December 23, 1997 (the "Basic Agreement"), as supplemented by Trust Supplement
No. 1997-1 [A-__] [B-__] [C-__] [D-__], (collectively, the "Agreement") between
the Trustee and United Air Lines, Inc., a Delaware corporation (the "Company"),
a summary of certain of the pertinent provisions of which is set forth below.
To the extent not otherwise defined herein, the capitalized terms used herein
have the meanings assigned to them in the Agreement. This Certificate is one of
the duly authorized Certificates designated as "United Airlines [Initial]
[Exchange] Enhanced Pass Through Certificates, Series 1997-1[A][B][C][D]" (the
"Certificates"). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement.
By virtue of its acceptance hereof, the Certificateholder of
this Certificate assents to and agrees to be bound by the provisions of the
Agreement, the Intercreditor Agreement and the Note Purchase Agreement. The
property of the Trust includes (i) certain Equipment Notes and all monies at
any time paid thereon and all monies due and to become due thereunder, (ii)
funds from time to time deposited in the related Escrow Account, the related
Certificate Account and the related
------------
*/ To be included on the face of each Global Certificate.
PASS THROUGH TRUST AGREEMENT
A-3
71
Special Payments Account, (iii) all rights of such Trust and the Trustee, on
behalf of such Trust, under the Intercreditor Agreement, the Registration
Rights Agreement and the Note Purchase Agreement, including all rights to
receive certain payments thereunder and all monies paid to such Trustee on
behalf of such Trust pursuant to the Intercreditor Agreement, the Registration
Rights Agreement or the Note Purchase Agreement; [and (iv) all monies
receivable by the Subordination Agent under the Liquidity Facilities for the
Trust]* ( together with the property of all other trusts of the same class the
"Trust Property"). Each issue of the Equipment Notes is secured by, among other
things, a security interest in the Aircraft leased to or owned by the Company.
The Certificates represent fractional undivided interests in
the Trust, all other trusts of the same class and the Trust Property, and have
no rights, benefits or interest in respect of any assets or property of any
trust of another class.
Interest applicable to this Certificate will be payable at a
floating rate equal to Three- Month LIBOR plus ____%.
Subject to and in accordance with the terms of the Agreement,
the Intercreditor Agreement and the Note Purchase Agreement, from and to the
extent of funds then available to the Trustee, there shall be distributed on
each March 2, June 2, September 2 and December 2 (a "Regular Distribution
Date"), commencing on March 2, 1998, to the Person in whose name this
Certificate is registered at the close of business on the 15th day preceding
such Regular Distribution Date, an amount in respect of the Scheduled Payments
on the Equipment Notes due on such Regular Distribution Date, the receipt of
which has been confirmed by the Trustee, equal to the product of the percentage
interest in the Trust (or, if more than one trust of like class, all such
trusts) evidenced by this Certificate and an amount equal to the sum of such
Scheduled Payments. Subject to and in accordance with the terms of the
Agreement, the Intercreditor Agreement and the Note Purchase Agreement, if
Special Payments on the Equipment Notes are received by the Trustee, from funds
then available to the Trustee, there shall be distributed on the applicable
Special Distribution Date, to the Person in whose name this Certificate is
registered at the close of business on the 15th day preceding the Special
Distribution Date, an amount in respect of such Special Payments on the
Equipment Notes, the receipt of which has been confirmed by the Trustee, equal
to the product of the percentage interest in the Trust (or, if more than one
trust of like class, all such trusts) evidenced by this Certificate and an
amount equal to the sum of such Special Payments so received. If a Regular
Distribution Date or Special Distribution Date is not a Business Day,
distribution shall be made on the next Business Day with the same force and
effect as if made on such Regular Distribution Date or Special Distribution
Date and interest shall accrue during the intervening period. The Trustee shall
mail notice of each Special Payment and the Special Distribution Date therefor
to the Certificateholder of this Certificate. The Certificates are redeemable
as and to the extent provided in the Note Purchase Agreement.
------------
*/ For Class A Certificates and Class B Certificates only.
PASS THROUGH TRUST AGREEMENT
A-4
72
[The Holder of this Certificate is entitled to the benefits
of the Registration Rights Agreement, dated as of December 23, 1997, between
the Company, the Trustee and the Initial Purchasers named therein (the
"Registration Rights Agreement"). If neither the consummation of the Exchange
Offer nor the declaration by the SEC of a Shelf Registration to be effective (a
"Registration Event") occurs on or prior to 180th day after the Closing Date
(as defined in the Registration Rights Agreement), the interest rate per annum
borne by the Equipment Notes shall be increased by 0.50%, from and including
July 1, 1998, to but excluding the date on which a Registration Event occurs.
If the Shelf Registration Statement ceases to be effective at any time during
the period specified by the Registration Rights Agreement for more than 60
days, whether or not consecutive, during any 12-month period, the interest rate
per annum borne by the Equipment Notes shall be increased by 0.50% from the
61st day of the applicable 12-month period such Shelf Registration Statement
ceases to be effective until such time as the Shelf Registration Statement
again becomes effective.]*
The Holder of this Certificate is entitled to the benefits of
the Note Purchase Agreement, which provides that the interest rate on each
series of Equipment Notes relating to the Leased Aircraft shall be reset on the
Final Expected Distribution Date. No later than 60 days prior to the Final
Expected Distribution Date, the Company shall cause the Trustee to hire (and,
if the Company does not so cause the Trustee, the Trustee shall no later than
30 days prior to the Final Expected Distribution Date, hire) an independent
investment banker (the "Reset Agent") of recognized national standing (which
may be an Initial Purchaser) to (i) determine the interest rate on each series
of the Equipment Notes relating to the Leased Aircraft to an interest rate
that, in the good faith determination of the Reset Agent, after consideration
of the then current rates for pass through certificates of the Company and
other comparable equipment lessees having similar tenor, rating and other
pricing terms, shall enable each such series of Equipment Notes to be sold at
100% of the principal amount thereof on the Final Expected Distribution Date,
and (ii) for such reasonable fee payable by the applicable Trust as shall be
mutually agreed by the and the Reset Agent, use its best efforts to sell any
such Equipment Notes with such new interest rates on the Final Expected
Distribution Date or as promptly as practicable thereafter.
Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Certificate shall be
made after notice mailed by the Trustee of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency of the Trustee specified in such notice.
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF (OTHER THAN SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)) AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE HOLDER OF THIS CERTIFICATE SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
------------
*/ To be included only on each Class A and Class B Initial Certificates.
PASS THROUGH TRUST AGREEMENT
A-5
73
Reference is hereby made to the further provisions of this
Certificate set forth in the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate
to be duly signed, manually or in facsimile, by its Authorized Officer.
Dated: UNITED AIRLINES 1997-1[A][B][C][D]
-------------------- PASS THROUGH TRUST
By: FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
not in its individual capacity
but solely as Trustee
By:
-------------------------------
Name:
Title:
PASS THROUGH TRUST AGREEMENT
A-6
74
FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Agreement.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Trustee
By:
-------------------------------
Authorized Officer
PASS THROUGH TRUST AGREEMENT
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75
[REVERSE OF CERTIFICATE]
The Certificates do not represent a direct obligation of, or
an obligation guaranteed by, or an interest in, the Company or the Trustee or
any of their affiliates. The Certificates are limited in right or payment, all
as more specifically set forth on the face hereof and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property to make such
payments in accordance with the terms of the Agreement. Each Certificateholder
of this Certificate, by its acceptance hereof, agrees that it shall look solely
to the income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made
to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby. A copy of the
Agreement may be examined during normal business hours at the principal office
of the Trustee, and at such other places, if any, designated by the Trustee, by
any Certificateholder upon request.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Certificateholders under the
Agreement at any time by the Company and the Trustee with the consent of the
Certificateholders holding Certificates evidencing Fractional Cumulative
Interests aggregating not less than a majority in interest in the Trust. Any
such consent by the Certificateholder of this Certificate shall be conclusive
and binding on such Certificateholder and upon all future Certificateholders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Certificateholders
of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Register upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee in its capacity as
Registrar, or by any successor Registrar, at its Corporate Trust Office, duly
endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Registrar duly executed by the
Certificateholder hereof or such Certificateholder's attorney duly authorized
in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate Fractional Undivided Interest in
the Trust shall be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons [in minimum denominations of $100,000 Fractional Undivided
Interest and integral multiples of $1,000
PASS THROUGH TRUST AGREEMENT
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76
in excess thereof]*. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Trustee shall require payment by the Holder of a
sum sufficient to cover any tax or governmental charge payable in connection
therewith.
The Trustee, the Registrar, and any agent of the Trustee or
the Registrar may treat the person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Trustee, the Registrar,
nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant
to the Agreement and the disposition of all property held as part of the Trust
Property.
------------
*/ Not to be included in Class D Certificates.
PASS THROUGH TRUST AGREEMENT
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FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
-------------------
please print or typewrite name and address including zip code of assignee
-------------------
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
-------------------
attorney to transfer said Certificate on the books of the Trustee with full
power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT PERMANENT OFFSHORE GLOBAL AND
OFFSHORE PHYSICAL CERTIFICATES]
In connection with any transfer of this Certificate occurring
prior to the date that is the earlier of the date of an effective Registration
Statement or December 23, 1999, the undersigned confirms that without utilizing
any general solicitation or general advertising that:
[Check One]
[ ] (a) this Certificate is being transferred in compliance with
the exemption from registration under the Securities Act of
1933, as amended, provided by Rule 144A thereunder.
or
[ ] (b) this Certificate is being transferred other than in
accordance with (a) above and documents are being furnished
that comply with the conditions of transfer set forth in this
Certificate and the Agreement.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Certificate in the name of any Person
other than the Holder hereof unless and until the
PASS THROUGH TRUST AGREEMENT
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78
conditions to any such transfer of registration set forth herein and in Section
3.06 of the Agreement shall have been satisfied.
Date: [Name of Transferor]
------------------------------------
NOTE: The signature must correspond with
the name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
Signature Guarantee:
---------------------------
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this 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 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.
PASS THROUGH TRUST AGREEMENT
A-11
79
EXHIBIT B
FORM OF CERTIFICATE FOR UNLEGENDED CERTIFICATES
[Date]
First Security Bank, National Association
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: United Airlines 1997-1[A][B][C][D] Pass Through Trust,
United Airlines Enhanced Pass Through Certificates,
Series 1997-1 [A][B][C][D] (the "Certificates")
Dear Sirs:
This letter relates to U.S. $_______ Fractional Undivided
Interest of Certificates represented by a Certificate (the "Legended
Certificate") which bears a legend outlining restrictions upon transfer of such
Legended Certificate. Pursuant to Section 3.01 of the Pass Through Trust
Agreement relating to the Certificates, dated as of December 23, 1997, as
supplemented by Trust Supplement No. ___, (the "Trust Agreement"), between
United Air Lines, Inc. ("United") and you, we hereby certify that we are (or we
shall hold such securities on behalf of) a person outside the United States to
whom the Certificates could be transferred in accordance with Rule 904 of
Regulation S promulgated under the U.S. Securities Act of 1933, as amended.
Accordingly, you are hereby requested to exchange the legended certificate for
an unlegended certificate representing an identical principal amount of
Certificates, all in the manner provided for in the Trust Agreement.
You and United 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 Certificateholder]
By:
-----------------------------
Authorized Signature
PASS THROUGH TRUST AGREEMENT
80
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
[Date]
First Security Bank, National Association
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: United Airlines 1997-1[A][B][C][D] Pass Through Trust (the
"Trust"), United Airlines Enhanced Pass Through
Certificates, Series 1997-1 [A][B][C][D] (the
"Certificates")
Dear 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
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
PASS THROUGH TRUST AGREEMENT
81
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 United Air Lines, 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]
By:
------------------------------
Authorized Signature
PASS THROUGH TRUST AGREEMENT
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82
EXHIBIT D
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
[Date]
First Security Bank, National Association
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: United Airlines 1997-1[A][B][C][D] Pass Through Trust (the
"Trust"), United Airlines Enhanced Pass Through
Certificates, Series 1997-1 [A][B][C][D] (the
"Certificates")
Dear Sirs:
In connection with our proposed purchase of $_________
aggregate principal amount of the 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 December 23,
1997, as supplemented by Trust Supplement No. ___, 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 understand that the Certificates have not been
registered under the Securities Act, and that the Certificates may not
be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell any
Certificate, we shall do so only (A) to United Air Lines, Inc., (B) in
accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes to you and United Air Lines, Inc., a signed letter
substantially in the form of this letter, (D) outside the United
States in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant
PASS THROUGH TRUST AGREEMENT
83
to the exemption from registration provided by Rule 144 under the
Securities Act (if available), or (F) pursuant to an effective
registration statement under the Securities Act, and we further agree
to provide to any person purchasing any of the Certificates from us a
notice advising such purchaser that resales of the Notes are
restricted as stated herein. We further understand that the
Certificates purchased by us shall bear a legend to the foregoing
effect.
3. We understand that, on any proposed resale of any
Certificates, we shall be required to furnish to you and United Air
Lines, Inc. such certifications, legal opinions and other information
as you and United Air Lines, Inc. may reasonably require to confirm
that the proposed sale complies with the foregoing restrictions. We
further understand that the Certificates purchased by us shall bear a
legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and
risks of our investment in the Certificates and we and any accounts
for which we are acting are each able to bear the economic risk of our
or its investment.
5. We are acquiring the Certificates purchased by us for our
own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise
sole investment discretion.
You and United Air Lines, 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,
[Name of Transferor]
By:
-------------------------------
Authorized Signature
PASS THROUGH TRUST AGREEMENT
D-2
