Exhibit 4(a)
NORTHWEST AIRLINES CORPORATION
NORTHWEST AIRLINES, INC.
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
as Trustee
PASS THROUGH TRUST AGREEMENT
Dated as of June 3, 1999
Reconciliation and tie between Pass Through Trust Agreement dated as of June
3, 1999 and the Trust Indenture Act of 1939. This reconciliation does not
constitute part of the Pass Through Trust Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
--------------- -------------------
310(a)(1) 7.07
(a)(2) 7.07
312(a) 3.09; 8.01; 8.02
313(a) 7.06
314(a) 8.04(a) - (c)
(a)(4) 8.04(d)
(c)(1) 1.02
(c)(2) 1.02
(d)(1) 7.12
(d)(2) 11.01
(d)(3) 7.12; 11.01
(e) 2.01
315(b) 1.02
316(a)(last sentence) 7.01
(a)(1)(A) 1.01
(a)(1)(B) 6.04
(b) 6.05
(c) 6.06
317(a)(1) 1.04(d)
(b) 6.03
318(a) 7.12
12.06
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions................................................2
Section 1.02. Compliance Certificates and Opinions......................10
Section 1.03. Form of Documents Delivered to Trustee....................10
Section 1.04. Acts of Certificateholders................................11
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF EQUIPMENT NOTES
Section 2.01. Amount Unlimited; Issuable in Series......................12
Section 2.02. Acquisition of Equipment Notes............................14
Section 2.03. Acceptance by Trustee.....................................16
Section 2.04. Limitation of Powers......................................16
ARTICLE III
THE CERTIFICATES
Section 3.01. Form, Denomination and Execution of Certificates..........16
Section 3.02. Authentication of Certificates............................17
Section 3.03. Temporary Certificates....................................17
Section 3.04. Registration of Transfer and Exchange of Certificates.....17
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates.........18
Section 3.06. Persons Deemed Owners.....................................18
Section 3.07. Cancellation..............................................18
Section 3.08. Limitation of Liability for Payments......................19
Section 3.09. Book-Entry and Definitive Certificates....................19
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account.........21
Section 4.02. Distributions from Certificate Account and Special
Payments Account.......................................21
Section 4.03. Statements to Certificateholders.........................22
Section 4.04. Investment of Special Payment Moneys.....................23
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence........................24
Section 5.02. Consolidation, Merger, etc................................24
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ARTICLE VI
DEFAULT
Section 6.01. Events of Default.........................................25
Section 6.02. Incidents of Sale of Equipment Notes......................26
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May
Bring Suit..............................................26
Section 6.04. Control by Certificateholders.............................26
Section 6.05. Waiver of Past Defaults...................................27
Section 6.06. Right of Certificateholders to Receive Payments Not To
Be Impaired.............................................27
Section 6.07. Certificateholders May Not Bring Suit Except Under
Certain Conditions......................................28
Section 6.08. Remedies Cumulative.......................................28
Section 6.09. Undertaking for Costs.....................................28
ARTICLE VII
THE TRUSTEE
Section 7.01. Notice of Defaults........................................29
Section 7.02. Certain Rights of Trustee.................................29
Section 7.03. Not Responsible for Recitals or Issuance of Certificates..30
Section 7.04. May Hold Certificates.....................................30
Section 7.05. Money Held in Trust.......................................31
Section 7.06. Compensation and Reimbursement............................31
Section 7.07. Corporate Trustee Required; Eligibility...................32
Section 7.08. Resignation and Removal; Appointment of Successor.........32
Section 7.09. Acceptance of Appointment by Successor....................34
Section 7.10. Merger, Conversion, Consolidation or Succession to
Business...............................................35
Section 7.11. Maintenance of Agencies...................................35
Section 7.12. Money for Certificate Payments to Be Held in Trust........36
Section 7.13. Registration of Equipment Notes in Trustee's Name.........36
Section 7.14. Representations and Warranties of Trustee.................37
Section 7.15. Withholding Taxes; Information Reporting..................37
Section 7.16. Trustee's Liens...........................................38
Section 7.17. Preferential Collection of Claims.........................38
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and Addresses
of Certificateholders...................................38
Section 8.02. Preservation of Information; Communications to
Certificateholders......................................38
Section 8.03. Reports by Trustee........................................39
Section 8.04. Reports by the Guarantor and Company......................39
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ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders......................................40
Section 9.02. Supplemental Agreements with Consent of
Certificateholders......................................41
Section 9.03. Documents Affecting Immunity or Indemnity.................41
Section 9.04. Execution of Supplemental Agreements......................42
Section 9.05. Effect of Supplemental Agreements.........................42
Section 9.06. Conformity with Trust Indenture Act.......................42
Section 9.07. Reference in Certificates to Supplemental Agreements......42
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indenture and Other Note
Documents.....................................42
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01. Termination of the Trusts.................................43
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders................44
Section 12.02. Liabilities of Certificateholders.........................44
Section 12.03. Certificates Nonassessable and Fully Paid.................44
Section 12.04. Registration of Equipment Notes in Name of Subordination
Agent...................................................44
Section 12.05. Notices...................................................44
Section 12.06. Governing Law.............................................46
Section 12.07. Severability of Provisions................................46
Section 12.08. Trust Indenture Act Controls..............................46
Section 12.09. Effect of Headings and Table of Contents..................46
Section 12.10. Successors and Assigns....................................46
Section 12.11. Benefits of Agreement.....................................46
Section 12.12. Legal Holidays............................................46
Section 12.13. Counterparts..............................................47
Section 12.14. Communication by Certificateholders with Other
Certificateholders......................................47
Exhibit A - Form of Certificate
- iii -
This PASS THROUGH TRUST AGREEMENT, dated as of June 3, 1999, among
Northwest Airlines Corporation, a Delaware corporation (the "Guarantor"),
Northwest Airlines, Inc., a Minnesota corporation (the "Company"), and State
Street Bank and Trust Company of Connecticut, National Association, a national
banking association, as Trustee, is made with respect to the formation from
time to time of separate Northwest Airlines Pass Through Trusts, and the
issuance from time to time of separate series of Pass Through Certificates
representing fractional undivided interests in the respective Trusts.
WITNESSETH:
WHEREAS, from time to time the Guarantor, the Company and the Trustee may
enter into a Trust Supplement (this and certain other defined terms used
herein are defined in Section 1.01) pursuant to which the Trustee shall
declare the creation of a separate Trust for the benefit of the Holders of the
series of Certificates to be issued in respect of such Trust, and the initial
Holders of the Certificates of such series, as the grantors of such Trust, by
their respective acceptances of the Certificates of such series, shall join in
the creation of such Trust with the Trustee;
WHEREAS, all Certificates to be issued in respect of each separate Trust
will be issued as a separate series pursuant to this Agreement, will evidence
fractional undivided interests in such Trust and will have no rights, benefits
or interests in respect of any other separate Trust or the property held
therein, subject, however, to the provisions of any Intercreditor Agreement to
which one or more Trusts may be a party;
WHEREAS, from time to time, pursuant to the terms and conditions of this
Agreement with respect to each separate Trust formed hereunder, the Trustee on
behalf of such Trust shall purchase one or more issues of Equipment Notes
having the same interest rate as, and final maturity dates not later than the
final Regular Distribution Date of, the series of Certificates issued in
respect of such Trust and shall hold such Equipment Notes in trust for the
benefit of the Certificateholders of such Trust;
WHEREAS, to facilitate the sale of Equipment Notes to, and the purchase
of Equipment Notes by, the Trustee on behalf of each Trust created from time
to time pursuant to this Agreement, (i) the Company 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, and (ii) the Guarantor have each duly
authorized the execution and delivery of this Basic Agreement and each Trust
Supplement with respect to all such Certificates and are undertaking to
perform certain administrative and ministerial duties hereunder and are also
undertaking to pay the fees and expenses of the Trustee;
WHEREAS, this Basic Agreement, as supplemented from time to time, is
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:
(1) the terms used herein that are defined in this Article have the
meanings assigned to them in this Article, and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein:
(3) all references in this Basic Agreement to designated "Articles",
"Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this Basic Agreement;
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Basic Agreement as a whole and not to any
particular Article, Section or other subdivision; and
(5) the term "this Agreement" (as distinguished from "this Basic
Agreement") refers, unless the context otherwise requires, to this Basic
Agreement as supplemented by the Trust Supplement creating a particular
Trust and establishing the series of Certificates issued or to be issued
in respect thereof, with reference to such Trust and such series of
Certificates, as this Basic Agreement as so supplemented may be further
supplemented with respect to such Trust and such series of Certificates.
Act: With respect to any Certificateholder has the meaning specified in
Section 1.04.
Affiliate: With respect to any specified Person, means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
Aircraft: Means one or more aircraft, including engines therefor, owned
by or leased to the Company and securing one or more Equipment Notes.
Authorized Agent: With respect to the Certificates of any series, means
any Paying Agent or Registrar for the Certificates of such series.
3
Basic Agreement: Means this Pass Through Trust Agreement, as the same may
from time to time be supplemented, amended or modified, but does not include
any Trust Supplement.
Book-Entry Certificates: With respect to the Certificates of any series,
means a beneficial interest in the Certificates of such series, ownership and
transfers of which shall be made through book entries as described in Section
3.09.
Business Day: With respect to the Certificates of any series, means any
day other than a Saturday, a Sunday or a day on which commercial banks are
required or authorized to close in Minneapolis, Minnesota or New York, New
York; and, so long as any such Certificate is outstanding, a city and state in
which the Trustee or any related Loan Trustee maintains its Corporate Trust
Office or receives and disburses funds.
Certificate: Means any one of the certificates executed and authenticated
by the Trustee, substantially in the form of Exhibit A hereto.
Certificate Account: With respect to the Certificates of any series,
means the account or accounts created and maintained for such series pursuant
to Section 4.01(a) and the related Trust Supplement.
Certificateholder or Holder: With respect to the Certificates of any
series, means the Person in whose name a Certificate of such series is
registered in the Register for Certificates of such series.
Certificate Owner: With respect to the Certificates of any series, means,
for purposes of Section 3.09, the Person who owns a Book-Entry Certificate of
such series.
Clearing Agency: Means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended.
Clearing Agency Participant: Means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects, directly or indirectly, book-entry transfers and pledges of
securities deposited with the Clearing Agency.
Company: Means Northwest Airlines, Inc., a Minnesota corporation, or its
successor in interest pursuant to Section 5.02.
Controlling Party: Means the Person entitled to act as such pursuant to
the terms of any Intercreditor Agreement.
Corporate Trust Office: With respect to the Trustee or any Loan Trustee,
means the office of such trustee in the city at which at any particular time
its corporate trust business shall be principally administered.
Cut-off Date: With respect to the Certificates of any series, means the
date designated as such in the Trust Supplement establishing such series.
4
Definitive Certificates: With respect to the Certificate of any series,
has the meaning specified in Section 3.09.
Direction: Has the meaning specified in Section 1.04(c).
Equipment Note: With respect to the Certificates of any series, has the
meaning given to "Secured Certificate" 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 series, has the
meaning specified in Section 2.02(b).
Escrowed Funds: With respect to any Trust, has the meaning specified in
Section 2.02(b).
Event of Default: Means, in respect of any Trust, the occurrence of an
Indenture Default under any Indenture pursuant to which Equipment Notes held
by such Trust were issued.
Fractional Undivided Interest: Means the fractional undivided interest in
a Trust that is evidenced by a Certificate relating to such Trust.
Guarantor: Means Northwest Airlines Corporation, a Delaware corporation,
or its successor in interest.
Indenture: With respect to any Trust, means each of the one or more
separate trust indenture and security agreements described in, or on a
schedule attached to, this Agreement which relates to an issue of Equipment
Notes to be held in such Trust and an indenture having substantially the same
terms and conditions as such trust indenture and security agreement and which
relates to a Substitute Aircraft; as each such agreement may be amended or
supplemented in accordance with its respective terms; and Indentures means all
of such agreements.
Indenture Default: With respect to any Indenture, means any Indenture
Event of Default (as such term is defined in such Indenture).
Initial Regular Distribution Date: With respect to the Certificates of
any series, means the first Regular Distribution Date on which a Scheduled
Payment is to be made.
Intercreditor Agreement: Means any agreement by and among one or more
Trusts, one or more Liquidity Providers and a Subordination Agent providing
for the distribution of payments made in respect of Equipment Notes held by
such Trusts.
Issuance Date: With respect to the Certificates of any series, means the
date of the issuance of such Certificates.
5
Lease: Means any lease between an Owner Trustee, as the lessor, and the
Company, as the lessee, referred to in the related Indenture, as each such
lease may be amended or supplemented in accordance with its respective terms;
and Leases means all such Leases.
Letter of Representations: With respect to the Certificates of any
series, means the agreement among the Company, the Trustee and the initial
Clearing Agency substantially in the form attached as an Exhibit to the
related Trust Supplement.
Liquidity Facility: With respect to the Certificates of any Series, means
any revolving credit agreement or similar facility relating to the
Certificates of such series between a Liquidity Provider and a Subordination
Agent, as amended, replaced, supplemented or otherwise modified from time to
time in accordance with its terms and the terms of any Intercreditor
Agreement.
Liquidity Provider: With respect to the Certificates of any Series, means
a bank or other financial institution that agrees to provide Liquidity
Facilities for the benefit of the holders of Certificates of such series.
Loan Trustee: With respect to any Equipment Note or the Indenture
applicable thereto, means the bank or trust company designated as loan or
indenture trustee under such Indenture; and any successor to such Loan Trustee
as such trustee; and Loan Trustees means all of the Loan Trustees under the
Indentures.
Note Documents: With respect to any Equipment Note, means the related
Indenture, Note Purchase Agreement, and if the related Aircraft is leased to
the Company, the related Lease and the related Owner Trustee's Purchase
Agreement.
Note Purchase Agreement: With respect to the Certificates of any series,
means any note purchase, refunding, participation or similar agreement
providing for, among other things, the purchase of Equipment Notes by the
Trustee on behalf of the relevant Trust; and Note Purchase Agreements means
all such agreements.
Officer's Certificate: Means a certificate signed, (a) in the case of the
Guarantor or the Company, by (i) a Co-Chairman of the Board of Directors, the
President or any Executive Vice President or Senior Vice President of the
Guarantor or the Company, signing alone or (ii) any Vice President of the
Guarantor or the Company signing together with the Secretary, the Assistant
Secretary, the Treasurer or any Assistant Treasurer of the Guarantor or the
Company, or (b) in the case of the Trustee or an Owner Trustee or a Loan
Trustee, a Responsible Officer of the Trustee or such Owner Trustee or such
Loan Trustee, as the case may be.
Other Agreements: Has the meaning specified in Section 6.01(b).
Opinion of Counsel: Means a written opinion of legal counsel who (a) in
the case of counsel for the Guarantor or the Company, may be (i) a senior
attorney in rank of the officers of the Guarantor or the Company a principal
duty of which is furnishing advice as to legal matters, (ii) Xxxxxxx Xxxxxxx &
Xxxxxxxx or (iii) such other counsel designated by the Guarantor or the
Company and reasonably acceptable to the Trustee and (b) in the case of any
Owner Trustee or any Loan Trustee, may be such counsel as may be designated by
any of them whether or not
6
such counsel is an employee of any of them, and who shall be reasonably
acceptable to the Trustee.
Outstanding: With respect to Certificates of any series, means, as of the
date of determination, all Certificates of such series theretofore
authenticated and delivered under this Agreement, except:
(i) Certificates of such series theretofore cancelled by the
Registrar or delivered to the Trustee or the Registrar for cancellation;
(ii) All of the Certificates of such series if money in the full
amount required to make the final distribution with respect to such
series pursuant to Section 11.01 hereof has been theretofore deposited
with the Trustee in trust for the Holders of the Certificates of such
series as provided in Section 4.01 pending distribution of such money to
such Certificateholders pursuant to such final distribution payment; and
(iii) Certificates of such series in exchange for or in lieu of
which other Certificates of such series have been authenticated and
delivered pursuant to this Agreement.
Owner Participant: With respect to any Equipment Note, means the "Owner
Participant", if any, as referred to in the Indenture pursuant to which such
Equipment Note is issued and any permitted successor or assign of such Owner
Participant; and Owner Participants at any time of determination means all of
the Owner Participants thus referred to in the Indentures.
Owner Trustee: with respect to any Equipment Note, means the "Owner
Trustee", if any, as referred to in the Indenture pursuant to which such
Equipment Note is issued, not in its individual capacity but solely as
trustee; and Owner Trustees means all of the Owner Trustees party to any of
the respective Indentures.
Owner Trustee's Purchase Agreement: With respect to the Certificates of
any series, if the related Aircraft is leased to the Company, has the meaning
specified therefor in the related Lease.
Paying Agent: With respect to the Certificates of any series, means the
paying agent maintained and appointed for the Certificates of such series
pursuant to Section 7.11.
Permitted Investments: Means obligations of the United States of America
or agencies or instrumentalities thereof for the payment of which the full
faith and credit of the United States of America is pledged, maturing in not
more than 60 days or such lesser time as is necessary for payment of any
Special Payments on a Special Distribution Date.
Person: Means any person, including any individual, corporation,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
Pool Balance: Means, as of any date, (i) the original aggregate face
amount of the Certificates of any series less (ii) the aggregate amount of all
payments made in respect of such
7
Certificates other than payments made in respect of interest or premium
thereon or reimbursement of any costs or expenses incurred in connection
therewith. The Pool Balance as of any Distribution Date shall be computed
after giving effect to the payment of principal, if any, on the Equipment
Notes or other Trust Property held in the Trust and the distribution thereof
to be made on such Distribution Date.
Pool Factor: Means, with respect to any series of Certificates as of any
date, the quotient (rounded to the seventh decimal place) computed by dividing
(i) the Pool Balance of such series as at such date by (ii) the original
aggregate face amount of the Certificates of such series. The Pool Factor as
of any Distribution Date shall be computed after giving effect to the payment
of principal, if any, on the Equipment Notes or other Trust Property and the
distribution thereof to be made on such Distribution Date.
Postponed Notes: With respect to any Trust or the related series of
Certificates, means the Equipment Notes to be held in such Trust as to which a
Postponement Notice shall have been delivered pursuant to Section 2.02(b).
Postponement Notice: With respect to any Trust or the related series of
Certificates, means an Officer's Certificate of the Company signed by an
officer of the Company (1) requesting that the Trustee temporarily postpone
purchase of the related Equipment Notes to a date later than the Issuance Date
of such series of Certificates, (2) identifying the amount of the purchase
price of each such Equipment Note and the aggregate purchase price for all
such Equipment Notes, (3) setting forth the reasons for such postponement and
(4) with respect to each such Equipment Note, either (a) setting or resetting
a new Transfer Date (which shall be on or prior to the applicable Cut-off
Date) for payment by the Trustee of such purchase price and issuance of the
related Equipment Note, or (b) indicating that such new Transfer Date (which
shall be on or prior to the applicable Cut-off Date) will be set by subsequent
written notice not less than one Business Day prior to such new Transfer Date.
PTC Event of Default: Means any failure to pay within 10 Business Days of
the due date thereof: (i) the outstanding Pool Balance on a date specified in
any Trust Supplement or (ii) interest due on the Certificates of any series on
any Distribution Date.
Record Date: With respect to any Trust or the related series of
Certificates, means (i) for Scheduled Payments to be distributed on any
Regular Distribution Date, other than the final distribution, with respect to
such series, the 15th day (whether or not a Business Day) preceding such
Regular Distribution Date, and (ii) for Special Payments to be distributed on
any Special Distribution Date, other than the final distribution, with respect
to such series, the 15th day (whether or not a Business Day) preceding such
Special Distribution Date.
Register and Registrar: With respect to the Certificates of any series,
mean the register maintained and the registrar appointed for such series
pursuant to Sections 3.04 and 7.11.
Regular Distribution Date: With respect to distributions of Scheduled
Payments in respect of any series of Certificates, means each date designated
as such in this Agreement, until payment of all the Scheduled Payments to be
made under the Equipment Notes held in such Trust has been made.
8
Request: Means a request by the Company setting forth the subject matter
of the request accompanied by an Officer's Certificate and an Opinion of
Counsel as provided in Section 1.02 of this Basic Agreement.
Responsible Officer: With respect to any Trustee, any Loan Trustee and
any Owner Trustee, means any officer in the Corporate Trust Division of the
Trustee, Loan Trustee or Owner Trustee or any other officer customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with a particular
subject.
Scheduled Payment: With respect to any Equipment Note, means any payment
of principal and interest on such Equipment Note or any payment of interest on
the Certificates of any series with funds drawn under the Liquidity Facility
for such series (other than any such payment which is not in fact received by
the Trustee or any Subordination Agent within five days of the date on which
such payment is scheduled to be made) due from the obligor thereon which
payment represents the installment of principal at the stated maturity of such
installment of principal on such Equipment Note, the payment of regularly
scheduled interest accrued on the unpaid principal amount of such Equipment
Note, or both; provided that any payment of principal, premium, if any, or
interest resulting from the redemption or purchase of any Equipment Note shall
not constitute a Scheduled Payment.
SEC: Means the Securities and Exchange Commission, as from time to time
constituted or created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
Special Distribution Date: With respect to the Certificates of any
series, means each date on which a Special Payment is to be distributed as
specified in this Agreement.
Special Payment: Means (i) any payment (other than a Scheduled Payment)
in respect of, or any proceeds of, any Equipment Note or Trust Indenture
Estate (as defined in each Indenture) or (ii) the amounts required to be
distributed pursuant to the last paragraph of Section 2.02(b) or (iii) the
amounts required to be distributed pursuant to the penultimate paragraph of
Section 2.02(b).
Special Payments Account: With respect to the Certificates of any series,
means the account or accounts created and maintained for such series pursuant
to Section 4.01(b) and the related Trust Supplement.
Specified Investments: With respect to any Trust, means, unless otherwise
specified in the related Trust Supplement, (i) 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-2 or its equivalent by
Xxxxx'x Investors Service, Inc. or at least A-2 or its equivalent by Standard
& Poor's Rating Group, (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
9
equivalent by Xxxxx'x Investors Service, Inc. or Standard & Poor's Rating
Group; 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 (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; provided further that if all of the
above investments are unavailable, the entire amounts to be invested may be
used to purchase Federal Funds from an entity described in clause (iii) above;
and provided further that no investment shall be eligible as a "Specified
Investment" unless the final maturity or date of return of such investment is
on or before the Special Distribution Date next following the Cut-off Date, if
any, for such Trust by more than 20 days.
Subordination Agent: Shall have the meaning specified therefor in any
Intercreditor Agreement.
Substitute Aircraft: With respect to any Trust, means any Aircraft of a
type specified in this Agreement and, at the election of the Company,
substituted prior to the applicable Cut-off Date, if any, pursuant to the
terms of this Agreement.
Transfer Date: Has the meaning assigned to that term or any of the terms
"Delivery Date", "Funding Date" or "Closing Date" in a Note Purchase
Agreement.
Triggering Event: Shall have the meaning specified therefor in any
Intercreditor Agreement.
Trust: With respect to the Certificates of any series, means the trust
under this Agreement.
Trustee: Means the institution executing this Basic Agreement as Trustee,
or its successor in interest, and any successor trustee appointed as provided
herein.
Trust Indenture Act: Except as otherwise provided in Section 9.06, means
the Trust Indenture Act of 1939 as in force at the date as of which this Basic
Agreement was executed.
Trust Property: With respect to any Trust, means (i) the Equipment Notes
held as the property of such Trust, all monies at any time paid thereon and
all monies due and to become due thereunder, (ii) the rights of such Trust
under any Intercreditor Agreement, including all monies receivable in respect
of such rights, (iii) all monies receivable under any Liquidity Facility for
such Trust and (iv) funds from time to time deposited in the related Escrow
Account, the related Certificate Account and the related Special Payments
Account and any proceeds from the sale by the Trustee pursuant to Article VI
hereof of any such Equipment Note.
Trust Supplement: Means an agreement supplemental hereto pursuant to
which (i) a separate Trust is created for the benefit of the Holders of the
Certificates of a series, (ii) the issuance of the Certificates of such series
representing fractional undivided interests in such Trust is authorized and
(iii) the terms of the Certificates of such series are established.
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Section 1.02. Compliance Certificates and Opinions. Upon any application
or request by the Company, any Owner Trustee or any Loan Trustee to the
Trustee to take any action under any provision of this Basic Agreement or, in
respect of the Certificates of any series, this Agreement, the Company, such
Owner Trustee or such Loan Trustee, as the case may be, shall furnish to the
Trustee an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Basic Agreement or this
Agreement relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Basic Agreement or
this Agreement relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Basic Agreement or, in respect of the
Certificates of any series, this Agreement (other than a certificate provided
pursuant to Section 8.04(d)) or any Trust Supplement shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions in this
Basic Agreement or this Agreement relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such
Persons as to other matters and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any Opinion of Counsel stated to be based on the opinion of other counsel
shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Basic Agreement or, in respect of the Certificates of
any series, this Agreement, they may, but need not, be consolidated and form
one instrument.
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Section 1.04. Acts of Certificateholders. (a) Any direction, consent,
waiver or other action provided by this Agreement in respect of the
Certificates of any series to be given or taken by Certificateholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Certificateholders in person or by an agent or proxy duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required pursuant
to this Agreement, to the Company or any Loan Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Certificateholders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of such
Trust Supplement and conclusive in favor of the Trustee, the Company and the
related Loan Trustee, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of deeds
or administer oaths that the Person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or such other officer and where such execution
is by an officer of a corporation or association or a member of a partnership,
on behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact
and date of the execution of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any other reasonable
manner which the Trustee deems sufficient.
(c) In determining whether the Certificateholders of the requisite
Fractional Undivided Interests of Certificates of any series Outstanding have
given any direction, consent or waiver (a "Direction"), under this Agreement,
Certificates owned by the Company, the Guarantor, any related Owner Trustee,
any related Owner Participant or any Affiliate of any such Person shall be
disregarded and deemed not to be Outstanding for purposes of any such
determination. In determining whether the Trustee shall be protected in
relying upon any such Direction, only Certificates which the Trustee knows to
be so owned shall be so disregarded. Notwithstanding the foregoing, (i) if any
such Person owns 100% of the Certificates of any series Outstanding, such
Certificates shall not be so disregarded as aforesaid, and (ii) if any amount
of Certificates of such series so owned by any such Person have been pledged
in good faith, such Certificates shall not be disregarded as aforesaid if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Certificates and that the pledgee is not the
Company, the Guarantor, any related Owner Trustee, any related Owner
Participant or any Affiliate of any such Person.
(d) The Company may at its option by delivery of an Officer's Certificate
to the Trustee set a record date to determine the Certificateholders in
respect of the Certificates of any series, entitled to give any consent,
request, demand, authorization, direction, notice, waiver or other Act.
Notwithstanding Section 316(c) of the Trust Indenture Act, such record date
shall be the record date specified in such Officer's Certificate which shall
be a date not more than 30 days prior to the first solicitation of
Certificateholders in connection therewith. If such a record date is fixed,
such consent, request, demand, authorization, direction, notice, waiver or
other Act
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may be given before or after such record date, but only the Certificateholders
of record of the applicable series at the close of business on such record
date shall be deemed to be Certificateholders for the purposes of determining
whether Certificateholders of the requisite proportion of Outstanding
Certificates of such series have authorized or agreed or consented to such
consent, request, demand, authorization, direction, notice, waiver or other
Act, and for that purpose the Outstanding Certificates of such series shall be
computed as of such record date; provided that no such consent, request,
demand, authorization, direction, notice, waiver or other Act by the
Certificateholders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Basic Agreement not
later than one year after the record date.
(e) Any direction, consent, waiver or other action by the
Certificateholder of any Certificate shall bind the Certificateholder of every
Certificate issued upon the transfer thereof or in exchange therefor or in
lieu thereof, whether or not notation of such action is made upon such
Certificate.
(f) Except as otherwise provided in Section 1.04(c), Certificates of any
series owned by or pledged to any Person shall have an equal and proportionate
benefit under the provisions of this Agreement, without preference, priority,
or distinction as among all of the Certificates of such series.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF EQUIPMENT NOTES
Section 2.01. Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Certificates of each series which
may be authenticated and delivered under this Basic Agreement is limited to an
amount equal to the aggregate principal amount of the Equipment Notes held in
the related Trust. The Certificates may be issued from time to time in one or
more series and shall be designated generally as the "Pass Through
Certificates", with such further designations added or incorporated in such
title for the Certificates of each series as specified in the related Trust
Supplement. Each Certificate shall bear upon its face the designation so
selected for the series to which it belongs. All Certificates of the same
series shall be substantially identical except that the Certificates of a
series may differ as to denomination and as may otherwise be provided in the
Trust Supplement establishing the Certificates of such series. Each series of
Certificates issued pursuant to this Agreement will evidence fractional
undivided interests in the related Trust and, except as may be contained in
any Intercreditor Agreement, will have no rights, benefits or interests in
respect of any other Trust or the Trust Property held therein. All
Certificates of the same series shall be in all respects equally and ratably
entitled to the benefits of this Agreement without preference, priority or
distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Agreement.
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(b) The following matters shall be established with respect to the
Certificates of each series issued hereunder by a Trust Supplement executed
and delivered by and among the Company, the Guarantor and the Trustee:
(1) the formation of the Trust as to which the Certificates of such
series represent fractional undivided interests and its designation
(which designation shall distinguish such Trust from each other Trust
created under this Basic Agreement and a Trust Supplement);
(2) the specific title of the Certificates of such series (which
title shall distinguish the Certificates of such series from each other
series of Certificates created under this Basic Agreement and a Trust
Supplement);
(3) any limit upon the aggregate principal amount of the
Certificates of such series which may be authenticated and delivered
(which limit shall not pertain to Certificates authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Certificates of the series pursuant to Sections 3.03, 3.04
and 3.05);
(4) the Cut-off Date with respect to the Certificates of such
series;
(5) the Regular Distribution Dates applicable to the Certificates of
such series;
(6) the Special Distribution Dates applicable to the Certificates of
such series;
(7) if other than as provided in Section 7.11(b), the Registrar or
the Paying Agent for the Certificates of such series, including any
Co-Registrar or additional Paying Agent;
(8) if other than as provided in Section 3.01, the denominations in
which the Certificates of such series shall be issuable;
(9) if other than United States dollars, the currency or currencies
(including currency units) in which the Certificates of such series shall
be denominated;
(10) the specific form of the Certificates of such series (including
the interest rate applicable thereto) and whether or not Certificates of
such series are to be issued as Book-Entry Certificates and, if such
Certificates are to be Book-Entry Certificates, the form of Letter of
Representations, if any (or, in the case of any Certificates denominated
in a currency other than United States dollars and if other than as
provided in Section 3.09, whether and the circumstances under which
beneficial owners of interests in such Certificates in permanent global
form may exchange such interests for Certificates of such series and of
like tenor of any authorized form and denomination);
(11) a description of the Equipment Notes to be acquired and held in
the related Trust and of the related Aircraft and Note Documents;
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(12) provisions with respect to the terms for which the definitions
set forth in Article I hereof or the terms of Section 11.01 hereof permit
or require further specification in the related Trust Supplement;
(13) any restrictions (including legends) in respect of ERISA;
(14) whether such series will be subject to an Intercreditor
Agreement and, if so, the specific designation of such Intercreditor
Agreement; and
(15) any other terms of the Certificates of such series (which terms
shall not be inconsistent with the provisions of the Trust Indenture
Act), including any terms which may be required or advisable under United
States laws or regulations or advisable in connection with the marketing
of Certificates of the series.
(c) At any time and from time to time after the execution and delivery of
this Basic Agreement and a Trust Supplement forming a Trust and establishing
the terms of Certificates of a series, Certificates of such series shall be
executed, authenticated and delivered by the Trustee to the Person or Persons
specified by the Company upon request of the Company and upon satisfaction of
any conditions precedent set forth in such Trust Supplement or in any other
document to which a Trustee is a party relating to the issuance of the
Certificates of such series.
Section 2.02. Acquisition of Equipment Notes.
(a) Unless otherwise specified in the related Trust Supplement, on or
prior to the Issuance Date of the Certificates of a series, the Trustee shall
execute and deliver the related Note Purchase Agreements in the form delivered
to the Trustee by the Company. The Trustee shall issue and sell such
Certificates, in authorized denominations and in such Fractional Undivided
Interests, so as to result in the receipt of consideration in an amount equal
to the aggregate purchase price of such Equipment Notes and, concurrently
therewith, the Trustee shall purchase, pursuant to the terms and conditions of
the Note Purchase Agreements, the Equipment Notes at a purchase price equal to
the amount of such consideration so received. Except as provided in Sections
3.03, 3.04 and 3.05 hereof, the Trustee shall not execute, authenticate or
deliver Certificates of such series in excess of the aggregate amount
specified in this paragraph. The provisions of this Subsection (a) are subject
to the provisions of Subsection (b) below.
(b) If on or prior to the Issuance Date with respect to a series of
Certificates the Company shall deliver to the Trustee a Postponement Notice
relating to one or more Postponed Notes, the Trustee shall postpone the
purchase of such Postponed Notes and shall deposit into an escrow account (as
to such Trust, the "Escrow Account") to be maintained as a part of the related
Trust an amount equal to the purchase price of such Postponed Notes (the
"Escrowed Funds"). The Escrowed Funds so deposited shall be invested by the
Trustee at the written direction and risk of, and for the benefit of, the
Company in Specified Investments (i) maturing no later than any scheduled
Transfer Date relating to such series of Certificates or (ii) if no such
Transfer Date has been scheduled, maturing on the next Business Day, or (iii)
if the Company has given notice to the Trustee that any Postponed Notes will
not be issued, with respect to the portion of the Escrowed Funds relating to
such Postponed Notes, maturing on the next applicable Special Distribution
Date, if such investments are reasonably available for purchase. The Trustee
shall
15
make withdrawals from the Escrow Account only as provided in this Agreement.
Upon request of the Company on one or more occasions and the satisfaction of
the closing conditions specified in the applicable Note Purchase Agreements on
or prior to the related Cut-off Date, the Trustee shall purchase the
applicable Postponed Notes with the Escrowed Funds withdrawn from the Escrow
Account. The purchase price shall equal the principal amount of such Postponed
Notes.
The Trustee shall hold all Specified Investments until the maturity
thereof and will not sell or otherwise transfer Specified Investments. If
Specified Investments held in an Escrow Account mature prior to any applicable
Transfer Date, any proceeds received on the maturity of such Specified
Investments (other than any earnings thereon) shall be reinvested by the
Trustee at the written direction and risk of, and for the benefit of, the
Company in Specified Investments maturing as provided in the preceding
paragraph.
Any earnings on Specified Investments received from time to time by the
Trustee shall be promptly distributed to the Company. The Company shall pay to
the Trustee for deposit to the relevant Escrow Account an amount equal to any
losses on such Specified Investments as incurred. On the Initial Regular
Distribution Date in respect of the Certificates of any series, the Company
will pay (in immediately available funds) to the Trustee an amount equal to
the interest that would have accrued on any Postponed Notes, if any, purchased
after the Issuance Date if such Postponed Notes had been purchased on the
Issuance Date, from the Issuance Date to, but not including, the date of the
purchase of such Postponed Notes by the Trustee.
If, in respect of the Certificates of any series, the Company notifies
the Trustee prior to the Cut-off Date that any Postponed Notes will not be
issued on or prior to the Cut-off Date for any reason, on the next Special
Distribution Date for such Certificates occurring more than 20 days following
the date of such notice (i) the Company shall pay to the Trustee for deposit
in the related Special Payments Account, in immediately available funds, an
amount equal to the interest that would have accrued on the Postponed Notes
designated in such notice at a rate equal to the interest rate applicable to
such Certificates from the Issuance Date to, but not including, such Special
Distribution Date and (ii) the Trustee shall transfer an amount equal to that
amount of Escrowed Funds that would have been used to purchase the Postponed
Notes designated in such notice and the amount paid by the Company pursuant to
the immediately preceding clause (i) to the related Special Payments Account
for distribution as a Special Payment in accordance with the provisions
hereof.
If, on such Cut-off Date, an amount equal to less than all of the
Escrowed Funds (other than Escrowed Funds referred to in the immediately
preceding paragraph) has been used to purchase Postponed Notes, on the next
such Special Distribution Date occurring more than 20 days following such
Cut-off Date (i) the Company shall pay to the Trustee for deposit in such
Special Payments Account, in immediately available funds, an amount equal to
the interest that would have accrued on such Postponed Notes contemplated to
be purchased with such unused Escrowed Funds (other than Escrowed Funds
referred to in the immediately preceding paragraph) but not so purchased at a
rate equal to the interest rate applicable to such Certificates from the
Issuance Date to, but not including, such Special Distribution Date and (ii)
the Trustee shall transfer such unused Escrowed Funds and the amount paid by
the Company pursuant to the immediately preceding clause (i) to such Special
Payments Account for distribution as a Special Payment in accordance with the
provisions hereof.
16
Section 2.03. Acceptance by Trustee. The Trustee, upon the execution and
delivery of a Trust Supplement creating a Trust and establishing a series of
Certificates, shall acknowledge its acceptance of all right, title, and
interest in and to the Equipment Notes to be acquired pursuant to Section 2.02
hereof and the related Note Purchase Agreements and shall declare that the
Trustee holds and will hold such right, title, and interest, together with all
other property constituting the Trust Property of such Trust, for the benefit
of all then present and future Certificateholders of such series, upon the
trusts herein and in such Trust Supplement set forth. By its payment for and
acceptance of each Certificate of such series issued to it under this
Agreement, each initial Certificateholder of such series as grantor of such
Trust shall thereby join in the creation and declaration of such Trust.
Section 2.04. Limitation of Powers. Each Trust shall be constituted
solely for the purpose of making the investment in the Equipment Notes
provided for in the related Trust Supplement, and, except as set forth herein
or in this Agreement, the Trustee shall not be authorized or empowered to
acquire any other investments or engage in any other activities and, in
particular, the Trustee shall not be authorized or empowered to do anything
that would cause such Trust to fail to qualify as a "grantor trust" for
federal income tax purposes (including as subject to this restriction,
acquiring the Aircraft (as defined in the respective related Indentures) by
bidding such Equipment Notes or otherwise, or taking any action with respect
to any such Aircraft once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01. Form, Denomination and Execution of Certificates. The
Certificates of each series shall be issued in fully registered form without
coupons and shall be substantially in the form attached hereto as Exhibit A,
with such omissions, variations and insertions as are permitted by this
Agreement, and may have such letters, numbers or other marks of identification
and such legends or endorsements printed, lithographed or engraved thereon, as
may be required to comply with the rules of any securities exchange on which
such Certificates may be listed or to conform to any usage in respect thereof,
or as may, consistently herewith, be prescribed by the Trustee or by the
officer executing such Certificates, such determination by said officer to be
evidenced by his signing the Certificates.
Except as provided in Section 3.09, the definitive Certificates of such
series shall be printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner permitted
by the rules of any securities exchange on which the Certificates may be
listed, all as determined by the officer executing such Certificates, as
evidenced by his execution of such Certificates.
Except as otherwise provided in the related Trust Supplement, the
Certificates of each series shall be issued in minimum denominations of $1,000
or integral multiples thereof except that one Certificate of such series may
be issued in a denomination of less than $1,000.
The Certificates of such series shall be executed on behalf of the
Trustee by manual or facsimile signature of a Responsible Officer of the
Trustee. Certificates of any series bearing the
17
manual or facsimile signature of an individual who was, at the time when such
signature was affixed, authorized to sign on behalf of the Trustee shall be
valid and binding obligations of the Trustee, notwithstanding that such
individual has ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such office at the date of such
Certificates. No Certificate of any series shall be entitled to any benefit
under this Agreement, or be valid for any purpose unless there appears on such
Certificate a certificate of authentication substantially in the form set
forth in Exhibit A hereto executed by the Trustee by manual signature, and
such certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates of any series shall be
dated on the date of their authentication.
Section 3.02. Authentication of Certificates. The Trustee shall duly
authenticate and deliver Certificates of each series in authorized
denominations equalling in the aggregate the aggregate principal amount of the
Equipment Notes to be purchased by the Trustee pursuant to the related Note
Purchase Agreements, and evidencing the entire ownership of the related Trust.
Section 3.03. Temporary Certificates. Pending the preparation of
definitive Certificates of any series, the Trustee may execute, authenticate
and deliver temporary Certificates of such series which are printed,
lithographed, typewritten, or otherwise produced, in any denomination,
containing substantially the same terms and provisions as set forth in Exhibit
A hereto, except for such appropriate insertions, omissions, substitutions and
other variations relating to their temporary nature as the officer executing
such temporary Certificates may determine, as evidenced by its execution of
such temporary Certificates.
If temporary Certificates of any series are issued, the Company will
cause definitive Certificates of such series to be prepared without
unreasonable delay. After the preparation of definitive Certificates of such
series, the temporary Certificates shall be exchangeable for definitive
Certificates upon surrender of such temporary Certificates at the Corporate
Trust Office of the Trustee, or at the office or agency of the Trustee
maintained in accordance with Section 7.11, without charge to the holder. Upon
surrender for cancellation of any one or more temporary Certificates, the
Trustee shall execute, authenticate and deliver in exchange therefor
definitive Certificates of like series, in authorized denominations and of a
like aggregate Fractional Undivided Interest. Until so exchanged, such
temporary Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Certificates.
Section 3.04. Registration of Transfer and Exchange of Certificates. The
Trustee shall cause to be kept at the office or agency to be maintained by it
in accordance with the provisions of Section 7.11 a register (the "Register")
for each series of Certificates in which, subject to such reasonable
regulations as it may prescribe, the Trustee shall provide for the
registration of Certificates of such series and of transfers and exchanges of
such Certificates as herein provided. The Trustee shall initially be the
registrar (the "Registrar") for the purpose of registering Certificates of
each series and transfers and exchanges of such Certificates as herein
provided.
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office or such other office or agency, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of like series, in authorized
denominations of a like aggregate Fractional Undivided Interest.
18
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of like series, in authorized denominations and of a like
aggregate Fractional Undivided Interest, upon surrender of the Certificates to
be exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Trustee shall execute, authenticate and deliver
the Certificates that the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Registrar
duly executed by the Certificateholder thereof or its attorney duly authorized
in writing.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Trustee shall
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of
Certificates.
All Certificates surrendered for registration of transfer and exchange
shall be cancelled and subsequently destroyed by the Trustee.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate is surrendered to the Registrar, or the Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (b) there is delivered to the Registrar and the Trustee such
security, indemnity or bond, as may be required by them to save each of them
harmless, then, in the absence of notice to the Registrar or the Trustee that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate or
Certificates of like series, in authorized denominations and of like
Fractional Undivided Interest. In connection with the issuance of any new
Certificate under this Section 3.05, the Trustee shall require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee and the Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section 3.05 shall constitute conclusive
evidence of the appropriate Fractional Undivided Interest in the related
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Trustee, the Registrar, and any
Paying Agent of the Trustee may treat the person in whose name any Certificate
is registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 4.02 and for all other purposes whatsoever,
and neither the Trustee, the Registrar, nor any Paying Agent of the Trustee
shall be affected by any notice to the contrary.
Section 3.07. Cancellation. All Certificates surrendered for payment or
transfer or exchange shall, if surrendered to any Person party hereto other
than the Registrar, be delivered to the Registrar for cancellation. No
Certificates shall be authenticated in lieu of or in exchange for any
Certificates cancelled as provided in this Section, except as expressly
permitted by this Agreement. All cancelled Certificates held by the Registrar
shall be destroyed and a certification of their destruction delivered to the
Trustee.
19
Section 3.08. Limitation of Liability for Payments. All payments or
distributions made to Certificateholders of any series under the related Trust
Supplement shall be made only from the Trust Property of the related Trust and
only to the extent that the Trustee shall have sufficient income or proceeds
from such Trust Property to make such payments in accordance with the terms of
Article IV of this Agreement. Each Certificateholder, by its acceptance of a
Certificate, agrees that it will look solely to the income and proceeds from
the Trust Property of the related Trust to the extent available for
distribution to such Certificateholder as provided in this Agreement.
Section 3.09. Book-Entry and Definitive Certificates.
(a) Except for one Certificate of each series that may be issued in a
denomination of less than $1,000, the Certificates of any series may be issued
in the form of one or more typewritten Certificates representing the
Book-Entry Certificates of such series, to be delivered to The Depository
Trust Company, the initial Clearing Agency, by, or on behalf of, the Company.
In such case, the Certificates of such series delivered to The Depository
Trust Company shall initially be registered on the Register in the name of
CEDE & Co., the nominee of the initial Clearing Agency, and no Certificate
Owner will receive a definitive certificate representing such Certificate
Owner's interest in the Certificates of such series, except as provided above
and in Subsection (d) below. As to the Certificates of any series, except with
respect to the one Certificate of such series that may be issued in a
denomination of less than $1,000, unless and until definitive, fully
registered Certificates (the "Definitive Certificates") have been issued
pursuant to Subsection (d) below:
(i) the provisions of this Section 3.09 shall be in full force and
effect;
(ii) the Company, the Paying Agent, the Registrar and the Trustee
may deal with the Clearing Agency Participants for all purposes
(including the making of distributions on the Certificates) as the
authorized representatives of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.09
conflict with any other provisions of this Agreement (other than the
provisions of any Trust Supplement amending this Section 3.09 as
permitted by this Basic Agreement), the provisions of this Section 3.09
shall control;
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Certificate Owners and the Clearing
Agency Participants; and until Definitive Certificates are issued
pursuant to Subsection (d) below, the Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit distributions of principal and interest and premium, if any,
on the Certificates to such Clearing Agency Participants; and
(v) whenever this Agreement requires or permits actions to be taken
based upon instructions or directions of Certificateholders of such
series holding Certificates of such series evidencing a specified
percentage of the Fractional Undivided Interests in the
20
related Trust, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to such
effect from Certificate Owners and/or Clearing Agency Participants owning
or representing, respectively, such required percentage of the beneficial
interest in Certificates of such series and has delivered such
instructions to the Trustee. The Trustee shall have no obligation to
determine whether the Clearing Agency has in fact received any such
instructions.
(b) Except with respect to the one Certificate of each series that may be
issued in a denomination of less than $1,000, whenever notice or other
communication to the Certificateholders of such series is required under this
Agreement, unless and until Definitive Certificates shall have been issued
pursuant to Subsection (d) below, the Trustee shall give all such notices and
communications specified herein to be given to Certificateholders of such
series to the Clearing Agency.
(c) Unless and until Definitive Certificates of a series are issued
pursuant to Subsection (d) below, on the Record Date prior to each applicable
Regular Distribution Date and Special Distribution Date, the Trustee will
request from the Clearing Agency a Securities Position Listing setting forth
the names of all Clearing Agency Participants reflected on the Clearing
Agency's books as holding interests in the Certificates on such Record Date.
(d) If with respect to the Certificates of any series (i) the Company
advises the Trustee in writing that the Clearing Agency is no longer willing
or able to properly discharge its responsibilities and the Trustee or the
Company is unable to locate a qualified successor, (ii) the Company at its
option, advises the Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (iii) after the occurrence of
an Event of Default, Certificate Owners of Book-Entry Certificates of such
series evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in the related Trust, by Act of said Certificate Owners
delivered to the Company and the Trustee, advise the Company, the Trustee and
the Clearing Agency through the Clearing Agency Participants in writing that
the continuation of a book-entry system through the Clearing Agency
Participants is no longer in the best interests of the Certificate Owners of
such series, then the Trustee shall notify all Certificate Owners of such
series, through the Clearing Agency, of the occurrence of any such event and
of the availability of Definitive Certificates. Upon surrender to the Trustee
of all the Certificates of such series held by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency Participants
for registration of Definitive Certificates in the names of Certificate Owners
of such series, the Trustee shall issue and deliver the Definitive
Certificates of such series in accordance with the instructions of the
Clearing Agency. Neither the Company, the Registrar, the Paying Agent nor the
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such registration
instructions. Upon the issuance of Definitive Certificates of such series, the
Trustee shall recognize the Person in whose name the Definitive Certificates
are registered in the Register as Certificateholders hereunder. Neither the
Company nor the Trustee shall be liable if the Trustee or the Company is
unable to locate a qualified successor Clearing Agency.
(e) Except as otherwise provided in the related Trust Supplement, the
Trustee shall enter into the applicable Letter of Representations with respect
to such series of Certificates and fulfill its responsibilities thereunder.
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(f) The provisions of this Section 3.09 may be made inapplicable to any
series or may be amended with respect to any series in the related Trust
Supplement.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account.
(a) The Trustee shall establish and maintain on behalf of the
Certificateholders of each series a Certificate Account as one or more
non-interest-bearing accounts. The Trustee shall hold the Certificate Account
in trust for the benefit of the Certificateholders of such series, and shall
make or permit withdrawals therefrom only as provided in this Agreement. On
each day when a Scheduled Payment is made to the Trustee, the Trustee, upon
receipt thereof, shall immediately deposit the aggregate amount of such
Scheduled Payment into the Certificate Account.
(b) The Trustee shall establish and maintain on behalf of the
Certificateholders of each series a Special Payments Account as one or more
accounts, which shall be non-interest bearing except as provided in Section
4.04. The Trustee shall hold the Special Payments Account in trust for the
benefit of the Certificateholders of such series, and shall make or permit
withdrawals therefrom only as provided in this Agreement. On each day when one
or more Special Payments are made to the Trustee, the Trustee, upon receipt
thereof, shall immediately deposit the aggregate amount of such Special
Payments into the Special Payments Account.
(c) The Trustee shall present to the Loan Trustee to which an Equipment
Note relates such Equipment Note on the date of its stated final maturity or,
in the case of any Equipment Note which is to be redeemed in whole pursuant to
the relevant Indenture, on the applicable redemption date under such
Indenture.
Section 4.02. Distributions from Certificate Account and Special Payments
Account.
(a) On each Regular Distribution Date with respect to a series of
Certificates or as soon thereafter as the Trustee has confirmed receipt of the
payment of the Scheduled Payments due on the Equipment Notes held in the
related Trust on such date, the Trustee shall distribute out of the applicable
Certificate Account the entire amount deposited therein pursuant to Section
4.01(a). There shall be so distributed to each Certificateholder of record of
such series on the Record Date with respect to such Regular Distribution Date
(other than as provided in Section 11.01 concerning the final distribution),
by check mailed to such Certificateholder at the address appearing in the
Register, such Certificateholder's pro rata share (based on the aggregate
Fractional Undivided Interest in the related Trust held by such
Certificateholder) of the aggregate amount in the applicable Certificate
Account.
(b) On each Special Distribution Date with respect to any Special Payment
with respect to a series of Certificates or as soon thereafter as the Trustee
has confirmed receipt of the Special Payments due on the Equipment Notes held
in the related Trust or realized upon the sale
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of such Equipment Note, the Trustee shall distribute out of the applicable
Special Payments Account the entire amount deposited therein pursuant to
Section 4.01(b) of such Special Payment. There shall be so distributed to each
Certificateholder of record of such series on the Record Date with respect to
such Special Distribution Date (other than as provided in Section 11.01
concerning the final distribution), by check mailed to such Certificateholder
at the address appearing in the Register, such Certificateholder's pro rata
share (based on the aggregate Fractional Undivided Interest in the related
Trust held by such Certificateholder) of the aggregate amount in the
applicable Special Payments Account on account of such Special Payment.
(c) The Trustee shall, at the expense of the Company, cause notice of
each Special Payment with respect to a series of Certificates to be mailed to
each Certificateholder of such series at his address as it appears in the
Register. In the event of redemption or purchase of Equipment Notes held in
the related Trust, such notice shall be mailed not less than 20 days prior to
the date any such Special Payment is scheduled to be distributed. In the case
of any other Special Payments, such notice shall be mailed as soon as
practicable after the Trustee has confirmed that it has received funds for
such Special Payment. Notices mailed by the Trustee shall set forth:
(i) the 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, premium, if any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a Regular
Distribution Date for the Certificates of such series, the total amount
to be received on such date for each $1,000 face amount Certificate.
If the amount of premium, if any, payable upon the redemption or purchase
of an Equipment Note has not been calculated at the 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 premium received
will also be distributed.
If any redemption of the Equipment Notes held in any Trust is cancelled,
the Trustee, as soon as possible after learning thereof, shall cause notice
thereof to be mailed to each Certificateholder of the related series at its
address as it appears on the Register.
Section 4.03. Statements to Certificateholders.
(a) On each Regular Distribution Date and Special Distribution Date with
respect to a series of Certificates, the Trustee will include with each
distribution to Certificateholders of the related series a statement, giving
effect to such distribution to be made on such Regular
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Distribution Date or Special Distribution Date, as the case may be, setting
forth the following information (per a $1,000 face amount Certificate as to
(i) and (ii) below):
(i) The amount of such distribution allocable to principal and the
amount allocable to premium, if any;
(ii) The amount of such distribution allocable to interest; and
(iii) The Pool Balance and the Pool Factor of the related Trust.
With respect to the Certificates registered in the name of a
Clearing Agency or its nominee, on the record date prior to each Distribution
Date, the Trustee will request from the Clearing Agency a securities position
listing setting forth the names of all the Clearing Agency Participants
reflected on the Clearing Agency's books as holding interests in the
Certificates on such record date. On each Distribution Date, the applicable
Trustee will mail to each such Clearing Agency Participant the statement
described above and will make available additional copies as requested by such
Clearing Agency Participant for forwarding to holders of Certificates.
(b) Within a reasonable period of time after the end of each calendar
year but not later than the latest date permitted by law, the Trustee shall
furnish to each Person who at any time during such calendar year was a
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i) and (a)(ii) with respect to the related
Trust for such calendar year or, in the event such Person was a
Certificateholder of record during a portion of such calendar year, for the
applicable portion of such year, and such other items as are readily available
to the Trustee and which a Certificateholder shall reasonably request as
necessary for the purpose of such Certificateholder's preparation of its
Federal income tax returns. With respect to Certificates registered in the
name of a Clearing Agency or its nominee, such report and such other items
shall be prepared on the basis of information supplied to the Trustees by the
Clearing Agency Participants and shall be delivered by the Trustee to such
Clearing Agency Participants to be available for forwarding by such Clearing
Agency Participants.
Section 4.04. Investment of Special Payment Moneys. Any money received by
the Trustee pursuant to Section 4.01(b) representing a Special Payment which
is not to be promptly distributed shall, to the extent practicable, be
invested in Permitted Investments by the Trustee as directed in writing by the
Company pending distribution of such Special Payment pursuant to Section 4.02.
Any investment made pursuant to this Section 4.04 shall be in such Permitted
Investments having maturities not later than the date that such moneys are
required to be used to make the payment required under Section 4.02 on the
applicable Special Distribution Date and the Trustee shall hold any such
Permitted Investments until maturity. The Trustee shall have no liability with
respect to any investment made pursuant to this Section 4.04, other than by
reason of the willful misconduct or negligence of the Trustee. All income and
earnings from such investments shall be distributed on such Special
Distribution Date as part of such Special Payment.
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ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence. The Company, at its own
cost and expense, will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence, rights and
franchises, except as otherwise specifically permitted in Section 5.02;
provided, however, that the Company shall not be required to preserve any
right or franchise if the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company.
Section 5.02. Consolidation, Merger, etc. The Company shall not
consolidate with or merge into any other corporation or convey, transfer or
lease substantially all of its assets as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer or
lease substantially all of the assets of the Company as an entirety shall be a
"citizen of the United States" (as defined in Section 40102(a)(15) of Title 49
of the United States Code) holding a carrier operating certificate issued by
the Secretary of Transportation pursuant to Chapter 447 of Title 49, United
States Code, for aircraft capable of carrying 10 or more individuals or 6,000
pounds or more of cargo and with respect to which there is in force an air
carrier operating certificate issued pursuant to Part 121 of the regulations
under the sections of Xxxxx 00, Xxxxxx Xxxxxx Code, relating to aviation;
(b) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer or
lease substantially all of the assets of the Company as an entirety shall
execute and deliver to the Trustee applicable to the Certificates of each
series a duly authorized, valid, binding and enforceable agreement in form and
substance reasonably satisfactory to the Trustee containing an assumption by
such successor corporation or Person of the due and punctual performance and
observance of each covenant and condition of the Note Documents and of this
Agreement applicable to the Certificates of each series to be performed or
observed by the Company;
(c) immediately after giving effect to such transaction, no Event of
Default applicable to the Certificates of each series or event which is, or
after notice or passage of time, or both, would be, such an Event of Default
shall have occurred and be continuing; and (d) the Company shall have
delivered to the Trustee an Officers' Certificate of the Company and an
Opinion of Counsel of the Company (which may be the Company's General Counsel)
reasonably satisfactory to the Trustee, each stating that such consolidation,
merger, conveyance, transfer or lease and the assumption agreement mentioned
in clause (b) above comply with this Section 5.02 and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
Upon any consolidation or merger, or any conveyance, transfer or lease of
substantially all of the assets of the Company as an entirety in accordance
with this Section 5.02, the successor
25
corporation or Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Agreement applicable to the Certificates of each series
with the same effect as if such successor corporation or Person had been named
as the Company herein. No such conveyance, transfer or lease of substantially
all of the assets of the Company as an entirety shall have the effect of
releasing the Company or any successor corporation or Person which shall
theretofore have become such in the manner prescribed in this Section 5.02
from its liability in respect of any Note Document and of this Agreement
applicable to the Certificates of such series to which it is a party.
ARTICLE VI
DEFAULT
Section 6.01. Events of Default. (a) Exercise of Remedies: Upon the
occurrence and during the continuation of any Indenture Default under any
Indenture, the Trustee may, to the extent it is the Controlling Party at such
time, direct the exercise of remedies.
(b) Purchase Rights of Certificateholders: By acceptance of its
Certificate, each Certificateholder agrees that at any time after the
occurrence and during the continuation of a Triggering Event, each
Certificateholder of Certificates of a series will have certain rights, the
exercise of which will be specified in the applicable Trust Supplement, to
purchase the class of Certificates with immediate seniority to the
Certificates held by the purchasing Certificateholder. The purchase price with
respect to the Certificates of any series shall be equal to the Pool Balance
of the Certificates of such series, together with accrued and unpaid interest
thereon to the date of such purchase, without premium, but including any other
amounts then due and payable to the Certificateholders under this Agreement,
any Intercreditor Agreement or any other Note Document or on or in respect of
the Certificates of such series; provided, however, that no such purchase of
Certificates of such series shall be effective unless the purchaser shall
certify to the Trustee that contemporaneously with such purchase, such
purchaser is purchasing, pursuant to the terms of this Agreement and the other
Agreements, if any, relating to Certificates of a series that are subject to
the same Intercreditor Agreement (such other Agreements, the "Other
Agreements"), the Certificates of each such series that is senior to the
Certificates held by such purchaser. Each payment of the purchase price of the
Certificates of any series shall be made to an account or accounts designated
by the Trustee and each such purchase shall be subject to the terms of this
Section. Each Certificateholder of any series agrees by its acceptance of
Certificates of such series that it will, upon payment from any such
Certificateholders of Certificates with a lower seniority of the purchase
price specified herein, forthwith sell, assign, transfer and convey to the
purchaser thereof (without recourse, representation or warranty of any kind
except for its own acts), all of the right, title, interest and obligation of
such Certificateholder in this Agreement, any Intercreditor Agreement, the
Liquidity Facility, the Note Documents and all Certificates of such series
held by such Certificateholder (excluding all right, title and interest under
any of the foregoing to the extent such right, title or interest is with
respect to an obligation not then due and payable as respects any action or
inaction or state of affairs occurring prior to such sale) and the purchaser
shall assume all of such Certificateholder's obligations under this Agreement,
any Intercreditor Agreement, the Liquidity Facility and the
26
Note Documents. The Certificates of such series will be deemed to be purchased
on the date payment of the purchase price is made notwithstanding the failure
of the Certificateholders to deliver any Certificates of such series and, upon
such a purchase, (i) the only rights of the Certificateholders will be to
deliver the Certificates to the purchaser and receive the purchase price for
such Certificates of such series and (ii) if the purchaser shall so request,
such Certificateholder will comply with all of the provisions of Section 3.04
hereof to enable new Certificates of such series to be issued to the purchaser
in such denominations as it shall request. All charges and expenses in
connection with the issuance of any such new Certificates shall be borne by
the purchaser thereof.
Section 6.02. Incidents of Sale of Equipment Notes. Upon any sale of all
or any part of the Equipment Notes made either under the power of sale given
under this Agreement or otherwise for the enforcement of this Agreement, the
following shall be applicable:
(1) Certificateholders and Trustee May Purchase Equipment Notes. Any
Certificateholder, the Trustee in its individual or any other capacity or
any other Person may bid for and purchase any of the Equipment Notes, and
upon compliance with the terms of sale, may hold, retain, possess and
dispose of such Equipment Notes in their own absolute right without
further accountability.
(2) Receipt of Trustee Shall Discharge Purchaser. The receipt of the
Trustee or of the officer making such sale shall be a sufficient
discharge to any purchaser for his purchase money, and, after paying such
purchase money and receiving such receipt, such purchaser or its personal
representative or assigns shall not be obliged to see to the application
of such purchase money, or be in any way answerable for any loss,
misapplication or non-application thereof.
(3) Application of Moneys Received upon Sale. Any moneys collected
by the Trustee upon any sale made either under the power of sale given by
this Agreement or otherwise for the enforcement of this Agreement shall
be applied as provided in Section 4.02.
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May
Bring Suit. If there shall be a failure to make payment of the principal of,
premium, if any, or interest on any Equipment Note, or if there shall be any
failure to pay Rent (as defined in the relevant Lease) under any Lease when
due and payable, then the Trustee, in its own name, and as trustee of an
express trust, as holder of such Equipment Notes, to the extent permitted by
and in accordance with the terms of any Intercreditor Agreement and any Note
Documents, shall be entitled and empowered to institute any suits, actions or
proceedings at law, in equity or otherwise, for the collection of the sums so
due and unpaid on such Equipment Notes or under such Lease and may prosecute
any such claim or proceeding to judgment or final decree with respect to the
whole amount of any such sums so due and unpaid.
Section 6.04. Control by Certificateholders. Subject to Section 6.03 and
any Intercreditor Agreement, the Certificateholders holding Certificates of a
series evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in the related Trust shall have the right to direct the
time, method and place of conducting any proceeding for any
27
remedy available to the Trustee with respect to such Trust or pursuant to the
terms of any Intercreditor Agreement, or exercising any trust or power
conferred on the Trustee under this Agreement or any Intercreditor Agreement,
including any right of the Trustee as Controlling Party under any
Intercreditor Agreement or as holder of the Equipment Notes, provided that
(1) such Direction shall not in the opinion of the Trustee be in
conflict with any rule of law or with this Agreement and would not
involve the Trustee in personal liability or expense,
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Certificateholders of such series
not taking part in such Direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such Direction.
Section 6.05. Waiver of Past Defaults. Subject to any Intercreditor
Agreement, the Certificateholders holding Certificates of a series evidencing
Fractional Undivided Interests aggregating not less than a majority in
interest in the Trust (i) may on behalf of all of the Certificateholders waive
any past Event of Default hereunder and its consequences or (ii) if the
Trustee is the Controlling Party, may direct the Trustee to instruct the
applicable Loan Trustee to waive, any past Indenture Default under any
Indenture and its consequences, and thereby annul any Direction given by such
Certificateholders or the Trustee to such Loan Trustee with respect thereto,
except a default:
(1) in the deposit of any Scheduled Payment or Special Payment under
Section 4.01 or in the distribution of any payment under Section 4.02 on
the Certificates of a series, or
(2) in the payment of the principal of (premium, if any) or interest
on the Equipment Notes, or
(3) in respect of a covenant or provision hereof which under Article
IX hereof cannot be modified or amended without the consent of each
Certificateholder holding an Outstanding Certificate of a series affected
thereby.
Upon any such waiver, such default shall cease to exist with respect
to Certificates of such series and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose and any direction given
by the Trustee on behalf of the Certificateholders of such series to the
relevant Loan Trustee shall be annulled with respect thereto; but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon. Upon any such waiver, the Trustee shall
vote the Equipment Notes issued under the relevant Indenture to waive the
corresponding Indenture Default.
Section 6.06. Right of Certificateholders to Receive Payments Not To Be
Impaired. Anything in this Agreement to the contrary notwithstanding,
including without limitation
28
Section 6.07 hereof, but subject to any Intercreditor Agreement, the right of
any Certificateholder to receive distributions of payments required pursuant
to Section 4.02 hereof on the applicable Certificates when due, or to
institute suit for the enforcement of any such payment on or after the
applicable Regular Distribution Date or Special Distribution Date, shall not
be impaired or affected without the consent of such Certificateholder.
Section 6.07. Certificateholders May Not Bring Suit Except Under Certain
Conditions. A Certificateholder of any series shall not have the right to
institute any suit, action or proceeding at law or in equity or otherwise with
respect to this Agreement, for the appointment of a receiver or for the
enforcement of any other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given written
notice to the Trustee of a continuing Event of Default;
(2) the Certificateholders holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not less than 25%
of the related Trust shall have requested the Trustee in writing to
institute such action, suit or proceeding and shall have offered to the
Trustee indemnity as provided in Section 7.02(e);
(3) the Trustee shall have refused or neglected to institute any
such action, suit or proceeding for 60 days after receipt of such notice,
request and offer of indemnity; and
(4) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Certificateholders
holding Certificates of such series evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the related
Trust.
It is understood and intended that no one or more of the
Certificateholders of any series shall have any right in any manner whatever
hereunder or under the related Trust Supplement or under the Certificates of
such series to (i) surrender, impair, waive, affect, disturb or prejudice any
property in the Trust Property of the related Trust or the lien of any related
Indenture on any property subject thereto, or the rights of the
Certificateholders of such series or the holders of the related Equipment
Notes, (ii) obtain or seek to obtain priority over or preference to any other
such Certificateholder of such series or (iii) enforce any right under this
Agreement, except in the manner herein provided and for the equal, ratable and
common benefit of all the Certificateholders of such series subject to the
provisions of this Agreement.
Section 6.08. Remedies Cumulative. Every remedy given hereunder to the
Trustee or to any of the Certificateholders of any series shall not be
exclusive of any other remedy or remedies, and every such remedy shall be
cumulative and in addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise.
Section 6.09. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Agreement, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, a court may
require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in
the manner
29
and to the extent provided in the Trust Indenture Act; provided
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company or the Guarantor.
ARTICLE VII
THE TRUSTEE
Section 7.01. Notice of Defaults. As promptly as practicable after, and
in any event within 90 days after the occurrence of any default (as such term
is defined below) hereunder known to the Trustee, the Trustee shall transmit
by mail to the Company, any related Owner Trustees, the related Loan Trustees
and the Certificateholders holding Certificates of the related series in
accordance with Section 313(c) of the Trust Indenture Act, notice of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in
the payment of the principal of (premium, if any) or interest on any Equipment
Note, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interests of the
Certificateholders of the related series. For the purpose of this Section in
respect of any Trust, the term "default" means any event that is, or after
notice or lapse of time or both would become, an Event of Default in respect
of that Trust.
Section 7.02. Certain Rights of Trustee. Subject to the provisions of
Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting in reliance upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Request;
(c) whenever in the administration of this Agreement or any Intercreditor
Agreement the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate of the
Company, any related Owner Trustee or any related Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement or any Intercreditor Agreement
at the request or direction of any of the Certificateholders pursuant to this
Agreement or any Intercreditor Agreement unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity against the
30
cost, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, or report, notice, request, direction, consent, order, bond,
debenture or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this
Agreement or Intercreditor Agreement or perform any duties under this
Agreement or any Intercreditor Agreement either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it under this Agreement or any Intercreditor Agreement;
(h) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
the Certificateholders holding Certificates of any series evidencing
Fractional Undivided Interests aggregating not less than a majority in
interest in the related Trust relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Agreement
or any Intercreditor Agreement; 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.
(j) except during the continuance of an Event of Default, the Trustee
undertakes and shall be responsible to perform only such duties as are
specifically set forth herein and no implied covenants or obligations shall be
read into this Agreement or be enforceable against Trustee.
Section 7.03. Not Responsible for Recitals or Issuance of Certificates.
The recitals contained herein and in the Certificates of each series, except
the certificates of authentication, shall not be taken as the statements of
the Trustee, and the Trustee assumes no responsibility for their correctness.
Subject to Section 7.14, the Trustee makes no representations as to the
validity or sufficiency of this Basic Agreement or any Trust Supplement, any
Note Documents, any Note Purchase Agreement or any Intercreditor Agreement,
any Equipment Notes or the Certificates of any series, except that the Trustee
hereby represents and warrants that this Basic Agreement has been, and each
Trust Supplement, each Certificate and each Intercreditor Agreement of, or
relating to, each series will be, executed and delivered by one of its
officers who is duly authorized to execute and deliver such document on its
behalf.
Section 7.04. May Hold Certificates. The Trustee, any Paying Agent,
Registrar or any of their Affiliates or any other agent, in their respective
individual or any other capacity, may become the owner or pledgee of
Certificates and subject to Sections 310(b) and 311 of the Trust Indenture Act
may otherwise deal with the Company, the Guarantor, any Owner Trustees or the
Loan Trustees with the same rights it would have if it were not Trustee,
Paying Agent, Registrar or such other agent.
31
Section 7.05. Money Held in Trust. Money held by the Trustee or the
Paying Agent in trust hereunder or under any Trust Supplement need not be
segregated from other funds except to the extent required herein or by law and
neither the Trustee nor the Paying Agent shall have any liability for interest
upon any such moneys except as provided for herein.
Section 7.06. Compensation and Reimbursement. The Company agrees:
(1) to pay, or cause to be paid, to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided 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, any Trust Supplement or any Intercreditor
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, willful
misconduct or bad faith or as may be incurred due to the Trustee's breach
of its representations and warranties set forth in Section 7.14;
(3) to indemnify, or cause to be indemnified, the Trustee for, and
to hold it harmless against, any loss, liability or expense (other than
for or with respect to any tax) incurred without negligence, willful
misconduct or bad faith, on its part, arising out of or in connection
with the acceptance or administration of this Trust, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder, except for any such loss, liability or expense incurred
by reason of the Trustee's breach of its representations and warranties
set forth in Section 7.14. The Trustee shall notify the Company and the
Guarantor promptly of any claim for which it may seek indemnity. The
Company and the Guarantor shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel with the
consent of the Company and the Guarantor and the Company and the
Guarantor will pay the reasonable fees and expenses of such counsel.
Neither the Company nor the Guarantor need pay for any settlement made
without its consent; and
(4) to indemnify, or cause to be indemnified, the Trustee, solely in
its individual capacity, for, and to hold it harmless against, any tax
(except to the extent the Trustee is reimbursed therefor pursuant to the
next paragraph, provided that no indemnification shall be available with
respect to any tax attributable to the Trustee's compensation for serving
as such) incurred without negligence, willful misconduct or bad faith, on
its part, arising out of or in connection with the acceptance or
administration of this Trust, including any costs and expenses incurred
in contesting the imposition of any such tax. The Trustee, in its
individual capacity, shall notify the Company and the Guarantor promptly
of any claim for any tax for which it may seek indemnity. The Trustee
shall permit the Company and the Guarantor to contest the imposition of
such tax
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and the Trustee, in its individual capacity, shall cooperate in the
defense. The Trustee, in its individual capacity, may have separate
counsel with the consent of the Company and the Guarantor and the Company
and the Guarantor will pay the reasonable fees and expenses of such
counsel. Neither the Company nor the Guarantor need pay for any taxes
paid, in settlement or otherwise, without its consent.
The Trustee shall be entitled to reimbursement from, and shall have a
lien prior to the Certificates of each series upon, all property and funds
held or collected by the Trustee in its capacity as Trustee with respect to
such series or the related Trust for any tax incurred without negligence, bad
faith or willful misconduct, on its part, arising out of or in connection with
the acceptance or administration of such Trust (other than any tax
attributable to the Trustee's compensation for serving as such), including any
costs and expenses incurred in contesting the imposition of any such tax. The
Trustee shall notify the Company of any claim for any tax for which it may
seek reimbursement. The Trustee shall cooperate in the contest by the Company
of any such claim. If the Trustee reimburses itself from the Trust Property of
such Trust for any such tax it will within 30 days mail a brief report setting
forth the amount of such tax and the circumstances thereof to all
Certificateholders of such series as their names and addresses appear in the
Register.
As security for the performance of the obligations of the Company under
this Section with respect to each Trust the Trustee shall have a lien prior to
the Certificates of the related series upon all property and funds held or
collected by the Trustee in its capacity as Trustee with respect to such
Certificates and the related Trust.
Section 7.07. Corporate Trustee Required; Eligibility. Each Trust shall
at all times have a Trustee which shall be eligible to act as a trustee under
Section 310(a) of the Trust Indenture Act and shall have a combined capital
and surplus of at least $75,000,000 (or a combined capital and surplus in
excess of $5,000,000 and the obligations of which, whether now in existence or
hereafter incurred, are fully and unconditionally guaranteed by a corporation
organized and doing business under the laws of the United States, any State or
Territory thereof or of the District of Columbia that has a combined capital
and surplus of at least $75,000,000). If such corporation publishes reports of
conditions at least annually, pursuant to law or to the requirements of
Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section 7.07, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of conditions so published.
In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 7.07 to act as Trustee of any Trust, the
Trustee shall resign immediately as Trustee of such Trust in the manner and
with the effect specified in Section 7.08.
Section 7.08. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee of any Trust pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee under Section
7.09.
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(b) The Trustee may resign at any time as trustee of any or all Trusts by
giving written notice thereof to the Company, the Authorized Agents, the
related Owner Trustees and the related Loan Trustees. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the
Company, the related Owner Trustees and the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time as trustee of any Trust by Act
of the Certificateholders of the related series holding Certificates of such
series evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in such Trust delivered to the Trustee and to the
Company, the related Owner Trustees and the related Loan Trustees.
(d) If at any time in respect of any Trust:
(1) the Trustee shall fail to comply with Section 310 of the Trust
Indenture Act after written request therefor by the Company or by any
Certificateholder of the related series who has been a bona fide
certificateholder for at least six months; or
(2) the Trustee shall cease to be eligible under Section 7.07 and
shall fail to resign after written request therefor by the Company or by
any such Certificateholder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any case, (i) the Company may remove the Trustee or (ii) any
Certificateholder of the related series who has been a bona fide
Certificateholder for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee of such
Trust.
(e) If a Responsible Officer of the Trustee shall obtain actual knowledge
of an Avoidable Tax (as hereinafter defined) in respect of any Trust which has
been or is likely to be asserted, the Trustee shall promptly notify the
Company and shall, within 30 days of such notification, resign as Trustee of
such Trust hereunder unless within such 30-day period the Trustee shall have
received notice that the Company has agreed to pay such tax. The Company shall
promptly appoint a successor Trustee of such Trust in a jurisdiction where
there are no Avoidable Taxes. As used herein, an "Avoidable Tax" in respect of
such Trust means a state or local tax: (i) upon (w) such Trust, (x) such Trust
Property, (y) Certificateholders of such Trust or (z) the Trustee for which
the Trustee is entitled to seek reimbursement from the Trust Property of such
Trust, and (ii) which would be avoided if the Trustee were located in another
state, or jurisdiction within a state, within the United States. A tax shall
not be an Avoidable Tax in respect of any Trust if the Company or any Owner
Trustee shall agree to pay, and shall pay, such tax.
(f) If the Trustee shall resign, be removed or become incapable of acting
as trustee of any Trust, or if a vacancy shall occur in the office of the
Trustee of any Trust for any cause, the
34
Company shall promptly appoint a successor Trustee of such Trust. If, within
one year after such resignation, removal or incapability, or other occurrence
of such vacancy, a successor Trustee of such Trust shall be appointed by Act
of the Certificateholders of the related series holding Certificates of such
series evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in such Trust delivered to the Company, the related Owner
Trustees, the related Loan Trustee and the retiring Trustee, the successor
Trustees so appointed shall, with the approval of the Company, which approval
shall not be unreasonably withheld, forthwith upon its acceptance of such
appointment, become the successor Trustee of such Trust and supersede the
successor Trustee of such Trust appointed as provided above. If no successor
Trustee shall have been so appointed as provided above and accepted
appointment in the manner hereinafter provided, the resigning Trustee or any
Certificateholder who has been a bona fide Certificateholder of the related
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee of such Trust.
(g) The successor Trustee of a Trust shall give notice of the resignation
and removal of the Trustee and appointment of the successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Certificateholders of the related series as their names and addresses appear
in the Register. Each notice shall include the name of such successor Trustee
and the address of its Corporate Trust Office.
Section 7.09. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee with respect to any or all Trusts an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee with respect to such Trusts shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall execute and deliver an instrument
transferring to such successor Trustee all such rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee in
respect of such Trusts hereunder, subject nevertheless to its lien, if any,
provided for in Section 7.06. Upon request of any such successor Trustee, the
Company, the retiring Trustee and such successor Trustee shall execute and
deliver any and all instruments containing such provisions as shall be
necessary or desirable to transfer and confirm to, and for more fully and
certainly vesting in, such successor Trustee all such rights, powers and
trusts.
If a successor Trustee is appointed with respect to one or more (but not
all) Trusts, the Company, the predecessor Trustee and each successor Trustee
with respect to any Trust shall execute and deliver a supplemental agreement
hereto which shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor Trustee with respect to the Trusts as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor
Trustee, and shall add to or change any of the provisions of this Basic
Agreement and the applicable Trust Supplements as shall be necessary to
provide for or facilitate the administration of the Trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental agreement shall constitute such
35
Trustees co-Trustees of the same Trust and that each such Trustee shall be
Trustee of separate Trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 7.10. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Certificates shall have
been executed or authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such execution or authentication and deliver
the Certificates so executed or authenticated with the same effect as if such
successor Trustee had itself executed or authenticated such Certificates.
Section 7.11. Maintenance of Agencies.
(a) With respect to each series of Certificates, there shall at all times
be maintained in the Borough of Manhattan, The City of New York, an office or
agency where Certificates of such series may be presented or surrendered for
registration of transfer or for exchange, and for payment thereof and where
notices and demands to or upon the Trustee in respect of such Certificates or
of the related Trust Supplement may be served. Such office or agency shall be
initially at 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Written notice of the
location of each such other office or agency and of any change of location
thereof shall be given by the Trustee to the Company, the Guarantor, any Owner
Trustees, the Loan Trustees and the Certificateholders of such series. In the
event that no such office or agency shall be maintained or no such notice of
location or of change of location shall be given, presentations and demands
may be made and notices may be served at the Corporate Trust Office of the
Trustee.
(b) There shall at all times be a Registrar and a Paying Agent hereunder
with respect to the Certificates of each series. Each such Authorized Agent
shall be a bank or trust company, shall be a corporation organized and doing
business under the laws of the United States or any state, with a combined
capital and surplus of at least $75,000,000, or a corporation having a
combined capital and surplus in excess of $5,000,000 the obligations of which
are guaranteed by a corporation organized and doing business under the laws of
the United States or any state, with a combined capital and surplus of at
least $75,000,000, and shall be authorized under such laws to exercise
corporate trust powers, subject to supervision by Federal or state
authorities. The Trustee shall initially be the Paying Agent and, as provided
in Section 3.04, Registrar hereunder with respect to the Certificates of each
series. Each Registrar shall furnish to the Trustee, at stated intervals of
not more than six months, and at such other times as the Trustee may request
in writing, a copy of the Register maintained by such Registrar.
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(c) Any corporation into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authorized Agent
shall be a party, or any corporation succeeding to the corporate trust
business of any Authorized Agent, shall be the successor of such Authorized
Agent hereunder, if such successor corporation is otherwise eligible under
this Section, without the execution or filing of any paper or any further act
on the part of the parties hereto or such Authorized Agent or such successor
corporation.
(d) Any Authorized Agent may at any time resign by giving written notice
of resignation to the Trustee, the Company, any related Owner Trustees and the
related Loan Trustees. The Company may, and at the request of the Trustee
shall, at any time terminate the agency of any Authorized Agent by giving
written notice of termination to such Authorized Agent and to the Trustee.
Upon the resignation or termination of an Authorized Agent or in case at any
time any such Authorized Agent shall cease to be eligible under this Section
(when in either case, no other Authorized Agent performing the functions of
such Authorized Agent shall have been appointed), the Company shall promptly
appoint one or more qualified successor Authorized Agents, reasonably
satisfactory to the Trustee, to perform the functions of the Authorized Agent
which has resigned or whose agency has been terminated or who shall have
ceased to be eligible under this Section. The Company shall give written
notice of any such appointment made by it to the Trustee, any related Owner
Trustees and the related Loan Trustees; and in each case the Trustee shall
mail notice of such appointment to all Certificateholders of the related
series as their names and addresses appear on the Register for such series.
(e) The Company agrees to pay, or cause to be paid, from time to time to
each Authorized Agent reasonable compensation for its services and to
reimburse it for its reasonable expenses.
Section 7.12. Money for Certificate Payments to Be Held in Trust. All
moneys deposited with any Paying Agent for the purpose of any payment on
Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of this
Section. Moneys so deposited and held in trust shall constitute a separate
trust fund for the benefit of the Certificateholders with respect to which
such money was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.13. Registration of Equipment Notes in Trustee's Name. Subject
to the provisions of any Intercreditor Agreement, the Trustee agrees that all
Equipment Notes, and Permitted Investments, if any, shall be issued in the
name of the Trustee as trustee for the applicable Trust or its nominee and
held by the Trustee, or, if not so held, the Trustee or its
37
nominee shall be reflected as the owner of such Equipment Notes or Permitted
Investments as the case may be, in the register of the issuer of such
Equipment Notes or Permitted Investments.
Section 7.14. Representations and Warranties of Trustee. The Trustee
hereby represents and warrants that:
(a) the Trustee is a national banking association organized and
validly existing, and in good standing under the laws of the United
States;
(b) the Trustee has full power, authority and legal right to
execute, deliver, and perform this Agreement, any Intercreditor Agreement
and the Note Purchase Agreements and has taken all necessary action to
authorize the execution, delivery, and performance by it of this
Agreement, any Intercreditor Agreement and the Note Purchase Agreements;
(c) the execution, delivery and performance by the Trustee of this
Agreement, any Intercreditor Agreement and the Note Purchase Agreements
(i) will not violate any provision of any United States federal law or
the law of the State of Connecticut governing the banking and trust
powers of the Trustee or any order, writ, judgment, or decree of any
court, arbitrator, or governmental authority applicable to the Trustee or
any of its assets, (ii) will not violate any provision of the articles of
association or by-laws of the Trustee, and (iii) will not violate any
provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of any lien on any
properties included in the Trust Property pursuant to the provisions of,
any mortgage, indenture, contract, agreement or other undertaking to
which it is a party, which violation, default or lien could reasonably be
expected to have an adverse effect on the Trustee's performance or
ability to perform its duties hereunder or thereunder or on the
transactions contemplated herein or therein;
(d) the execution, delivery and performance by the Trustee of this
Agreement any Intercreditor Agreement and the Note Purchase Agreements
will not require the authorization, consent, or approval of, the giving
of notice to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency of the United
States or the State of Connecticut regulating the banking and corporate
trust activities of the Trustee; and
(e) this Agreement, any Intercreditor Agreement and the Note
Purchase Agreements have been duly executed and delivered by the Trustee
and constitute the legal, valid, and binding agreements of the Trustee,
enforceable against it in accordance with their respective terms,
provided that enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and (ii) general principles of equity.
Section 7.15. Withholding Taxes; Information Reporting. As to the
Certificates of any series, the Trustee, as trustee of the related grantor
trust created by this Agreement, shall exclude and withhold from each
distribution of principal, premium, if any, and interest and other amounts due
under this Agreement or under the Certificates of such series any and all
withholding taxes
38
applicable thereto as required by law. The Trustee agrees to act as such
withholding agent and, in connection therewith, whenever any taxes or similar
charges are required to be withheld with respect to any amounts paid by or on
behalf of the Trustee in respect of the Certificates of such series, to
withhold such amounts and timely pay the same to the authority in the name of
and on behalf of the Certificateholders of such series, that it will file any
necessary withholding tax returns or statements when due, and that, as
promptly as possible after the payment thereof, it will deliver to each such
Certificateholder necessary documentation showing the payment thereof,
together with such additional documentary evidence as such Certificateholders
of such series may reasonably request from time to time. The Trustee agrees to
file any other information reports as it may be required to file under United
States law.
Section 7.16. Trustee's Liens. The Trustee in its individual capacity
agrees that it will, in respect of each Trust created by this Agreement at its
own cost and expense promptly take any action as may be necessary to duly
discharge and satisfy in full any mortgage, pledge, lien, charge, encumbrance,
security interest or claim ("Trustee's Liens") on or with respect to the Trust
Property of such Trust which is attributable to the Trustee either (i) in its
individual capacity and which is unrelated to the transactions contemplated by
this Agreement, the related Note Purchase Agreements or the related 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 7.17. Preferential Collection of Claims. The Trustee shall comply
with Section 311(a) of the Trust Indenture Act, excluding any creditor
relationship listed in Section 311(b) of the Trust Indenture Act. If the
Trustee shall resign or be removed as Trustee, it shall be subject to Section
311(a) of the Trust Indenture Act to the extent provided therein.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and Addresses of
Certificateholders. The Company will furnish to the Trustee within 15 days
after each Record Date with respect to a Scheduled Payment, and at such other
times as the Trustee may request in writing, within 30 days after receipt by
the Company of any such request, a list, in such form as the Trustee may
reasonably require, of all information in the possession or control of the
Company as to the names and addresses of the Certificateholders of such
series, in each case as of a date not more than 15 days prior to the time such
list is furnished; provided, however, that so long as the Trustee is the sole
Registrar for such series, no such list need be furnished; and provided
further, however, that no such list need be furnished for so long as a copy of
the Register is being furnished to the Trustee pursuant to Section 7.11.
Section 8.02. Preservation of Information; Communications to
Certificateholders. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders of each
series contained in the most recent list furnished to the Trustee as provided
in Section 7.11 or Section 8.01, as the case may be, and the names and
addresses of Certificateholders of each series received by the Trustee in its
capacity as Registrar, if so acting.
39
The Trustee may destroy any list furnished to it as provided in Section 7.11
or Section 8.01, as the case may be, upon receipt of a new list so furnished.
Section 8.03. Reports by Trustee. Within 60 days after May 15 of each
year commencing with the first full year following the issuance of any series
of Certificates, the Trustee shall transmit to the Certificateholders of each
series, as provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of such May 15, if required by Section 313(a) of the Trust
Indenture Act.
Section 8.04. Reports by the Guarantor and Company. The Guarantor and the
Company each shall:
(a) file with the Trustee, within 30 days after the Guarantor or the
Company is required to file the same with the SEC, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may from time to time by rules and
regulations prescribe) which the Guarantor or the Company is required to file
with the SEC pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934, as amended; or, if the Guarantor or the Company is not
required to file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the SEC, in accordance with rules
and regulations prescribed by the SEC, such of the supplementary and periodic
information, documents and reports which may be required pursuant to section
13 of the Securities Exchange Act of 1934, as amended, in respect of a
security listed and registered on a national securities exchange as may be
prescribed in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with the rules and
regulations prescribed by the SEC, such additional information, documents and
reports with respect to compliance by the Guarantor and the Company with the
conditions and covenants of the Guarantor and the Company provided for in this
Agreement, as may be required by such rules and regulations, including, in the
case of annual reports, if required by such rules and regulations,
certificates or opinions of independent public accountants, conforming to the
requirements of Section 1.02;
(c) transmit to all Certificateholders, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act such summaries of any
information, documents and reports required to be filed by the Guarantor and
the Company pursuant to subsections (a) and (b) of this Section 8.04 as may be
required by rules and regulations prescribed by the SEC;
(d) furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his or her knowledge of the Guarantor's
and the Company's compliance with all conditions and covenants under this
Agreement (it being understood that for purposes of this paragraph (d), such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Agreement); and
(e) make available to any Certificateholder upon request, the annual
audited and quarterly unaudited financial statements of the Guarantor which
are provided to the Trustee.
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ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders. Without the consent of the Certificateholders, the
Guarantor and the Company may, and the Trustee (subject to Section 9.03)
shall, at any time and from time to time, enter into one or more agreements
supplemental hereto or, if applicable, to the Intercreditor Agreement or a
Note Purchase Agreement in form satisfactory to the Trustee, for any of the
following purposes:
(1) to provide for the formation of a Trust, the issuance of a
series of certificates and the other matters contemplated by Section
2.01(b); or
(2) to evidence the succession of another corporation to the Company
or the Guarantor and the assumption by any such successor of the
covenants of the Company or the Guarantor herein contained; or
(3) to add to the covenants of the Guarantor or the Company for the
benefit of the Certificateholders of any series, or to surrender any
right or power in this Agreement conferred upon the Guarantor or the
Company; or
(4) to correct or supplement any provision in this Agreement which
may be defective or inconsistent with any other provision herein or in
any Trust Supplement or to make any other provisions with respect to
matters or questions arising under this Agreement, provided that any such
action shall not adversely affect the interests of the Certificateholders
of any series; or to cure any ambiguity or correct any mistake; or
(5) to modify, eliminate or add to the provisions of this Agreement
to such extent as shall be necessary to continue the qualification of
this Agreement (including any supplemental agreement) under the Trust
Indenture Act, or under any similar Federal statute hereafter enacted,
and to add to this Agreement such other provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in effect
at the date as of which this instrument was executed or any corresponding
provision in any similar Federal statute hereafter enacted; or
(6) to evidence and provide for the acceptance of appointment under
this Agreement by a successor Trustee with respect to one or more Trusts
and to add to or change any of the provisions of this Agreement as shall
be necessary to provide for or facilitate the administration of the
Trusts hereunder and thereunder by more than one Trustee, pursuant to the
requirements of Section 7.09; or
(7) to make any other amendments or modifications hereto, provided
such amendments or modifications shall only apply to Certificates of one
or more series to be thereafter issued.
41
Section 9.02. Supplemental Agreements with Consent of Certificateholders.
With respect to each separate Trust and the series of Certificates relating
thereto, with the consent of the Certificateholders holding Certificates of
any series evidencing Fractional Undivided Interests aggregating not less than
a majority in interest in such Trust, by Act of said Certificateholders
delivered to the Guarantor, the Company and the Trustee, the Guarantor and the
Company may (with the consent of the Owner Trustee, if any, relating to such
certificates, which consent shall not be unreasonably withheld), and the
Trustee (subject to Section 9.03) shall, enter into an agreement or agreements
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement, any
Intercreditor Agreement or any 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; provided,
however, that no such supplemental agreement shall, without the consent of the
Certificateholder of each Outstanding Certificate affected thereby:
(1) reduce in any manner the amount of, or delay the timing of, any
receipt by the Trustee of payments on the Equipment Notes held in such
Trust or distributions that are required to be made herein on any
Certificate of such series, or change any date of payment of any
Certificate of such series, or change the place of payment where, or the
coin or currency in which, any Certificate of such series is payable, or
impair the right to institute suit for the enforcement of any such
payment or distribution on or after the Regular Distribution Date or
Special Distribution Date applicable thereto; or
(2) permit the disposition of any Equipment Note in the Trust
Property of such Trust except as permitted by this Agreement, or
otherwise deprive such Certificateholder of the benefit of the ownership
of the Equipment Notes in such Trust; or
(3) alter the priority of distributions specified in the
Intercreditor Agreement; or
(4) reduce the percentage of the aggregate Fractional Undivided
Interests of such Trust 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
(5) modify any of the provisions of this Section or Section 6.05,
except to increase any such percentage or to provide that certain other
provisions of this Agreement cannot be modified or waived without the
consent of the Certificateholder of each Certificate or such series
affected thereby.
It shall not be necessary for any Act of such Certificateholders under
this Section to approve the particular form of any proposed supplemental
agreement, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 9.03. Documents Affecting Immunity or Indemnity. If in the
opinion of the Trustee any document required to be executed by it pursuant to
the terms of Section 9.01 or 9.02
42
affects any interest, right, duty, immunity or indemnity in favor of the
Trustee under this Basic Agreement or any Trust Supplement, the Trustee may in
its discretion decline to execute such document.
Section 9.04. Execution of Supplemental Agreements. In executing, or
accepting the additional trusts created by, any supplemental agreement
permitted by this Article or the modifications thereby of the trusts created
by this Agreement, the Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental agreement is authorized or permitted by this
Agreement.
Section 9.05. Effect of Supplemental Agreements. Upon the execution of
any supplemental agreement under this Article, this Basic Agreement shall be
modified in accordance therewith, and such supplemental agreement shall form a
part of this Basic Agreement for all purposes; and every Certificateholder of
each series theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby to the extent applicable to such series.
Section 9.06. Conformity with Trust Indenture Act. Every supplemental
agreement executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
Section 9.07. Reference in Certificates to Supplemental Agreements.
Certificates of each series authenticated and delivered after the execution of
any supplemental agreement applicable to such series pursuant to this Article
may bear a notation in form approved by the Trustee as to any matter provided
for in such supplemental agreement; and, in such case, suitable notation may
be made upon Outstanding Certificates of such series after proper presentation
and demand.
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indenture and Other Note
Documents. In the event that the Trustee, as holder of any Equipment Notes in
trust for the benefit of the Certificateholders of any series or as
Controlling Party, receives a request for a consent to any amendment,
modification, waiver or supplement under any Indenture or other Note Document
the Trustee shall forthwith send a notice of such proposed amendment,
modification, waiver or supplement to each Certificateholder of such series
registered on the Register as of the date of such notice. The Trustee shall
request from Certificateholders of such series a Direction as to (a) whether
or not to take or refrain from taking any action which a holder of such
Equipment Note has the option to direct, (b) whether or not to give or execute
any waivers, consents, amendments, modifications or supplements as a holder of
such Equipment Note and (c) how to vote any Equipment Note if a vote has been
called for with respect thereto. Provided such a request for Certificateholder
Direction shall have been made, in directing any action or casting any vote or
giving any consent as the holder of any Equipment Note, the Trustee shall vote
for or give consent to any such action with respect to such Equipment Note in
the same proportion as that of (i) the aggregate face amounts of all
Certificates of such series actually voted in favor of
43
or for giving consent to such action by Acts of Certificateholders to (ii) the
aggregate face amount of all Outstanding Certificates. For purposes of the
immediately preceding sentence, a Certificate shall have been "actually voted"
if the Holder of such Certificate has delivered to the Trustee an instrument
evidencing such Holder's consent to such Direction on or prior to the Business
Day before the Trustee directs such action or casts such vote or gives such
consent. Notwithstanding the foregoing, but subject to Section 6.04 and any
Intercreditor Agreement, the Trustee may, in its own discretion and at its own
direction consent and notify the relevant Loan Trustee of such consent to any
amendment, modification, waiver or supplement under the relevant Indenture,
Liquidity Facility, or any Note Document, if an Event of Default hereunder
shall have occurred and be continuing, or if such amendment, modification or
waiver will not adversely affect the interests of the Certificateholders.
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01. Termination of the Trusts. In respect of each Trust
created by the Basic Agreement as supplemented by a related Trust Supplement,
the respective obligations and responsibilities of the Company, the Guarantor
and the Trustee created under this Agreement and the Trust created hereby and
such Trust shall terminate upon the distribution to all Holders of the
Certificates of the series of such Trust and the Trustee of all amounts
required to be distributed to them pursuant to this Agreement and the
disposition of all property held as part of the Trust Property of the related
series of such Trust; provided, however, that in no event shall such Trust
continue beyond the final expiration date determined as provided in this
Agreement.
Notice of any termination of a Trust, specifying the applicable Regular
Distribution Date (or applicable Special Distribution Date, as the case may
be) upon which the Certificateholders of any series may surrender their
Certificates to the Trustee for payment of the final distribution and
cancellation, shall be mailed promptly by the Trustee to Certificateholders of
such series not earlier than the minimum number of days and not more than the
maximum number of days specified therefor in the related Trust Supplement
preceding such final distribution specifying (A) the Regular Distribution Date
(or Special Distribution Date, as the case may be) upon which the proposed
final payment of the Certificates of such series will be made upon
presentation and surrender of Certificates of such series at the office or
agency of the Trustee therein specified, (B) the amount of any such proposed
final payment, and (C) that the Record Date otherwise applicable to such
Regular Distribution Date (or Special Distribution Date, as the case may be)
is not applicable, payments being made only upon presentation and surrender of
the Certificates of such series at the office or agency of the Trustee therein
specified. The Trustee shall give such notice to the Registrar at the time
such notice is given to Certificateholders of such series. Upon presentation
and surrender of the Certificates of such series, the Trustee shall cause to
be distributed to Certificateholders of such series amounts distributable on
such Regular Distribution Date (or Special Distribution Date, as the case may
be) pursuant to Section 4.02.
In the event that all of the Certificateholders of such series shall not
surrender their Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders of such series to
surrender their Certificates for cancellation and receive the final
distribution
44
with respect thereto. In the event that any money held by the Trustee for the
payment of distributions on the Certificates of such series shall remain
unclaimed for two years (or such lesser time as the Trustee shall be
satisfied, after sixty days' notice from the Company, is one month prior to
the escheat period provided under applicable law) after the final distribution
date with respect thereto, the Trustee shall pay to each Loan Trustee the
appropriate amount of money relating to such Loan Trustee and shall give
written notice thereof to the related Owner Trustees and the Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder of any series shall not operate to
terminate this Agreement, or the related Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or commence any proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations, and
liabilities of the parties hereto or any of them.
Section 12.02. Liabilities of Certificateholders. Neither the existence
of the Trust nor any provision in this Agreement is intended to or shall limit
the liability the Certificateholders would otherwise incur if the
Certificateholders owned Trust Property as co-owners, or incurred any
obligations of the Trust, directly rather than through the Trust.
Section 12.03. Certificates Nonassessable and Fully Paid.
Certificateholders of each series shall not be personally liable for
obligations of the related Trust, the Fractional Undivided Interests
represented by the Certificates of such series shall be nonassessable for any
losses or expenses of such Trust or for any reason whatsoever, and
Certificates of such series upon authentication thereof by the Trustee
pursuant to Section 3.02 are and shall be deemed fully paid. No
Certificateholder of such series shall have any right (except as expressly
provided herein) to vote or in any manner otherwise control the operation and
management of the related Trust Property, the related Trust, or the
obligations of the parties hereto, nor shall anything set forth herein, or
contained in the terms of the Certificates of such series, be construed so as
to constitute the Certificateholders of such series from time to time as
partners or members of an association.
Section 12.04. Registration of Equipment Notes in Name of Subordination
Agent. If a Trust is party to an Intercreditor Agreement, the Trustee agrees
that all Equipment Notes to be purchased by such Trust shall be issued in the
name of the Subordination Agent under such Intercreditor Agreement or its
nominee and held by such Subordination Agent in trust for the benefit of the
Certificateholders, or, if not so held, such Subordination Agent or its
nominee shall be reflected as the owner of such Equipment Notes in the
register of the issuer of such Equipment Notes.
Section 12.05. Notices.
(a) Unless otherwise specifically provided herein or in the applicable
Trust Supplement with respect to any Trust, all notices required under the
terms and provisions of this
45
Basic Agreement or such Trust Supplement with respect to such Trust shall be
in English and in writing, and any such notice may be given by United States
mail, courier service, telegram, telex, telemessage, telecopy, telefax, cable
or facsimile (confirmed by telephone or in writing in the case of notice by
telegram, telex, telemessage, telecopy, telefax, cable or facsimile) or any
other customary means of communication, and any such notice shall be effective
when delivered, or if mailed, three days after deposit in the United States
mail with proper postage for ordinary mail prepaid,
if to the Company or the Guarantor, to:
Mail: Northwest Airlines, Inc.
0000 Xxxxxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Courier: 0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000
Attention: Senior Vice President-Finance and Treasurer
Facsimile: (000) 000-0000
if to the Trustee, to:
State Street Bank and Trust Company of Connecticut, National Association
000 Xxxxxx Xxxxxx, Xxxxxxx Square
Hartford, Connecticut 06103
Attention: Corporate/Muni Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(b) The Company, the Guarantor or the Trustee, by notice to the other,
may designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Certificateholders of any series shall
be mailed by first-class mail to the addresses for Certificateholders of such
series shown on the Register kept by the Registrar and to addresses filed with
the Trustee for Certificate Owners of such series. Failure so to mail a notice
or communication or any defect in such notice or communication shall not
affect its sufficiency with respect to other Certificateholders or Certificate
Owners of such series.
(d) If 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.
46
(e) If the Company mails a notice or communication to the
Certificateholders of such series, it shall mail a copy to the Trustee and to
each Paying Agent for such series at the same time.
(f) Notwithstanding the foregoing, all communications or notices to the
Trustee shall be deemed to be given only when received by a Responsible
Officer of the Trustee.
(g) The Trustee shall promptly furnish the Company with a copy of any
demand, notice or written communication received by the Trustee hereunder from
any Certificateholder, Owner Trustee or Loan Trustee.
Section 12.06. Governing Law. THIS BASIC AGREEMENT HAS BEEN DELIVERED IN
THE STATE OF NEW YORK AND, TOGETHER WITH ALL TRUST SUPPLEMENTS AND
CERTIFICATES, SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.07. Severability of Provisions. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or any Trust, or
of the Certificates of any series or the rights of the Certificateholders
thereof.
Section 12.08. Trust Indenture Act Controls. This Agreement is subject to
the provisions of the Trust Indenture Act and shall, to the extent applicable,
be governed by such provisions.
Section 12.09. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 12.10. Successors and Assigns. All covenants, agreements,
representations and warranties in this Agreement by the Trustee, the Guarantor
and the Company shall bind and, to the extent permitted hereby, shall inure to
the benefit of and be enforceable by their respective successors and assigns,
whether so expressed or not.
Section 12.11. Benefits of Agreement. Nothing in this Agreement or in the
Certificates of any series, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the
Certificateholders of each series, any benefit or any legal or equitable
right, remedy or claim under this Agreement.
Section 12.12. Legal Holidays. In any case where any Regular Distribution
Date or Special Distribution Date relating to any Certificate of any series
shall not be a Business Day with respect to such series, then (notwithstanding
any other provision of this Agreement) payment need not be made on such date,
but may be made on the next succeeding Business Day
47
with the same force and effect as if made on such Regular Distribution Date or
Special Distribution Date, and no interest shall accrue during the intervening
period.
Section 12.13. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 12.14. Communication by Certificateholders with Other
Certificateholders. Certificateholders of any series may communicate with
other Certificateholders of such series with respect to their rights under
this Basic Agreement, the related Trust Supplement or the Certificates of such
series pursuant to Section 3.12(b) of the Trust Indenture Act. The Company,
the Guarantor, 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.
48
IN WITNESS WHEREOF, the Guarantor, the Company and the Trustee have
caused this Basic Agreement to be duly executed by their respective officers,
all as of the day and year first above written.
NORTHWEST AIRLINES CORPORATION
By /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------
Title: Vice President & Assistant Treasurer
NORTHWEST AIRLINES, INC.
By /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------
Title: Vice President & Assistant Treasurer
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION,
as Trustee
By
---------------------------------------------
Title:
48
IN WITNESS WHEREOF, the Guarantor, the Company and the Trustee have
caused this Basic Agreement to be duly executed by their respective officers,
all as of the day and year first above written.
NORTHWEST AIRLINES CORPORATION
By
---------------------------------------------
Title:
NORTHWEST AIRLINES, INC.
By
---------------------------------------------
Title:
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION,
as Trustee
By /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Title: Vice President
EXHIBIT A
FORM OF CERTIFICATE
1[Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
NORTHWEST AIRLINES __________ PASS THROUGH TRUST
Pass Through
Certificate, Series __________
Final Distribution Date: __________, _____
evidencing a fractional undivided interest in a
trust, the property of which includes certain
equipment notes each secured by Aircraft owned by
or leased to Northwest Airlines, Inc.
Certificate
No. __________ $__________ Fractional Undivided Interest representing
.__________% of the Trust per $1,000 face amount
THIS CERTIFIES THAT __________________________, for value received, is
the registered owner of a $_____________________ (______________ dollars)
Fractional Undivided Interest in the Northwest Airlines Pass Through Trust
(the "Trust") created by State Street Bank and Trust Company of Connecticut,
National Association, as trustee (the "Trustee"), pursuant to a Pass Through
Trust Agreement dated as of June 3, 1999 (the "Basic Agreement"), as
supplemented by Trust Supplement No. ___________ thereto dated __________,
_____ (collectively, the "Agreement"), among the Trustee, Northwest Airlines
Corporation, a corporation incorporated under Delaware law (the "Guarantor"),
and Northwest Airlines, Inc., a corporation incorporated under Minnesota law
(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 "Pass
Through Certificates, Series _____________" (herein called the
"Certificates"). This Certificate is issued under and is
--------
1 This legend to appear on Book-Entry Certificates to be deposited with the
Depository Trust Company. One Certificate may be issued in a denomination of
less than $1,000 which shall not have this legend.
2
subject to the terms, provisions, and conditions of the Agreement, to which
Agreement the Certificateholder of this Certificate by virtue of the
acceptance hereof assents and by which such Certificateholder is bound. The
property of the Trust includes certain Equipment Notes and all rights of the
Trust to receive any payments under any Intercreditor Agreement or Liquidity
Facility (the "Trust Property"). Each issue of the Equipment Notes is secured
by a security interest in aircraft leased to or owned by the Company.
The Certificates represent fractional undivided interests in the Trust
and the Trust Property, and have no rights, benefits or interest in respect of
any other separate trust established pursuant to the terms of the Basic
Agreement for any other series of certificates issued pursuant thereto. [The
undivided percentage interest in the Trust represented by each of this
Certificate (as specified above) and the other Pass Through Certificates,
Series [_______], was determined on the basis of (x) the aggregate of the
Reference Principal Amount of this Certificate (as specified above) and of the
other Pass Through Certificates, Series [________] and (y) the aggregate
original principal amounts of the Equipment Notes constituting the Trust
Property.]
Subject to and in accordance with the terms of the Agreement and any
Intercreditor Agreement, from funds then available to the Trustee, there will
be distributed on each ____________ and ________________ (a "Regular
Distribution Date"), commencing on _______________, _____, to the Person in
whose name this Certificate is registered at the close of business on the 15th
day preceding the Regular Distribution Date, an amount in respect of the
Scheduled Payments on the Equipment Notes due on such Regular Distribution
Date, the receipt of which has been confirmed by the Trustee, equal to the
product of the percentage interest in the Trust evidenced by this Certificate
and an amount equal to the sum of such Scheduled Payments. Subject to and in
accordance with the terms of the Agreement, in the event that Special Payments
on the Equipment Notes are received by the Trustee, from funds then available
to the Trustee, there shall be distributed on the applicable Special
Distribution Date, to the Person in whose name this Certificate is registered
at the close of business on the 15th day preceding the Special Distribution
Date, an amount in respect of such Special Payments on the Equipment Notes,
the receipt of which has been confirmed by the Trustee, equal to the product
of the percentage interest in the Trust evidenced by this Certificate and an
amount equal to the sum of such Special Payments so received. If a Regular
Distribution Date or Special Distribution Date is not a Business Day,
distribution shall be made on the immediately following Business Day with the
same force and effect as if made on such Regular Distribution Date or Special
Distribution Date and no interest shall accrue during the intervening period.
The Trustee shall mail notice of each Special Payment and the Special
Distribution Date therefor to the Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Trustee by check
mailed to the Person entitled thereto, without the presentation or surrender
of this Certificate or the making of any notation hereon. Except as otherwise
provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after notice mailed by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency of the Trustee specified
in such notice.
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, the Guarantor, the Company or the
Trustee or any affiliate thereof. The
3
Certificates are limited in right or payment, all as more specifically set
forth on the face hereof and in the Agreement. All payments or distributions
made to Certificateholders under the Agreement shall be made only from the
Trust Property and only to the extent that the Trustee shall have sufficient
income or proceeds from the Trust Property to make such payments in accordance
with the terms of the Agreement. Each Certificateholder of this Certificate,
by its acceptance hereof, agrees that it will look solely to the income and
proceeds from the Trust Property to the extent available for distribution to
such Certificateholder as provided in the Agreement. This Certificate does not
purport to summarize the Agreement and reference is made to the Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby. A copy of the Agreement may be examined
during normal business hours at the principal office of the Trustee, and at
such other places, if any, designated by the Trustee, by any Certificateholder
upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Certificateholders under the Agreement at any
time by the Company and the Trustee with the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust. Any such consent by the
Certificateholder of this Certificate shall be conclusive and binding on such
Certificateholder and upon all future Certificateholders of this Certificate
and of any Certificate issued upon 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 set
forth, the transfer of this Certificate is registrable in the Register upon
surrender of this Certificate for registration of transfer at the offices or
agencies maintained by the Trustee in its capacity as Registrar, or by any
successor Registrar duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Registrar, duly executed
by the Certificateholder hereof or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates of
authorized denominations evidencing the same aggregate Fractional Undivided
Interest in the Trust will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates without
coupons in minimum denominations of $1,000 Fractional Undivided Interest and
integral multiples thereof except that one Certificate may be in a
denomination of less than $1,000. As provided in the Agreement and subject to
certain limitations therein set forth, the Certificates are exchangeable for
new Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee shall require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
The Trustee, the Registrar, and any agent of the Trustee or the Registrar
may treat the person in whose name this Certificate is registered as the owner
hereof for all purposes, and
4
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.
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PROVISIONS OF THE STATE OF NEW YORK.
Unless the certificate of authentication hereon has been executed by the
Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORTHWEST AIRLINES PASS THROUGH TRUST
By: STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as Trustee
By__________________________________
Title:______________________________
Dated: _________________________
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred
to in the within-mentioned Agreement.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, as Trustee
By:______________________________
Authorized Officer
