EXHIBIT 4.1
PASS THROUGH TRUST AGREEMENT
Dated as of May 24, 2001
between
AMERICAN AIRLINES, INC.
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01. Definitions...........................................................................2
Section 1.02. Compliance Certificates and Opinions.................................................11
Section 1.03. Form of Documents Delivered to Trustee...............................................12
Section 1.04. Directions of Certificate Holders....................................................12
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF TRUST PROPERTY
Section 2.01. Amount Unlimited; Issuable in Series.................................................14
Section 2.02. Acquisition of Equipment Notes.......................................................16
Section 2.03. Acceptance by Trustee................................................................18
Section 2.04. Limitation of Powers.................................................................18
ARTICLE III
THE CERTIFICATES
Section 3.01. Form, Denomination and Execution of Certificates.....................................19
Section 3.02. Authentication of Certificates.......................................................19
Section 3.03. Temporary Certificates...............................................................20
Section 3.04. Transfer and Exchange................................................................20
Section 3.05. Book-Entry and Definitive Certificates...............................................21
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates....................................23
Section 3.07. Persons Deemed Owners................................................................23
Section 3.08. Cancellation.........................................................................24
Section 3.09. Limitation of Liability for Payments.................................................24
Section 3.10. CUSIP Numbers........................................................................24
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account.....................................24
Section 4.02. Distributions from Certificate Account and Special Payments Account..................25
Section 4.03. Statements to Certificateholders.....................................................27
Section 4.04. Investment of Special Payment Moneys.................................................27
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ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence...................................................28
Section 5.02. Consolidation, Merger, Etc...........................................................28
ARTICLE VI
DEFAULT
Section 6.01. Indenture Events of Default and Triggering Events....................................29
Section 6.02. Incidents of Sale of Equipment Notes.................................................30
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May Bring Suit...................31
Section 6.04. Control by Certificateholders........................................................31
Section 6.05. Waiver of Past Defaults..............................................................32
Section 6.06. Right of Certificateholders to Receive Payments Not to Be Impaired...................33
Section 6.07. Certificateholders May Not Bring Suit Except Under Certain Conditions................33
Section 6.08. Remedies Cumulative..................................................................34
Section 6.09. Discontinuance of Proceedings........................................................34
Section 6.10. Undertaking for Costs................................................................34
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities..................................................34
Section 7.02. Notice of Defaults...................................................................35
Section 7.03. Certain Rights of Trustee............................................................35
Section 7.04. Not Responsible for Recitals or Issuance of Certificates.............................36
Section 7.05. May Hold Certificates................................................................37
Section 7.06. Money Held in Trust..................................................................37
Section 7.07. Compensation and Reimbursement.......................................................37
Section 7.08. Corporate Trustee Required; Eligibility..............................................38
Section 7.09. Resignation and Removal; Appointment of Successor....................................39
Section 7.10. Acceptance of Appointment by Successor...............................................40
Section 7.11. Merger, Conversion, Consolidation or Succession to Business..........................41
Section 7.12. Maintenance of Agencies..............................................................41
Section 7.13. Money for Certificate Payments to Be Held in Trust...................................43
Section 7.14. Registration of Equipment Notes in Trustee's Name....................................43
Section 7.15. Representations and Warranties of Trustee............................................43
Section 7.16. Withholding Taxes; Information Reporting.............................................44
Section 7.17. Trustee's Liens......................................................................45
Section 7.18. Preferential Collection of Claims....................................................45
Section 7.19. Capacity in Which Acting.............................................................45
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ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and Addresses of Certificateholders........45
Section 8.02. Preservation of Information; Communications to Certificateholders....................46
Section 8.03. Reports by Trustee...................................................................46
Section 8.04. Reports by the Company...............................................................46
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of Certificateholders........................47
Section 9.02. Supplemental Agreements with Consent of Certificateholders...........................48
Section 9.03. Documents Affecting Immunity or Indemnity............................................49
Section 9.04. Execution of Supplemental Agreements.................................................50
Section 9.05. Effect of Supplemental Agreements....................................................50
Section 9.06. Conformity with Trust Indenture Act..................................................50
Section 9.07. Reference in Certificates to Supplemental Agreements.................................50
ARTICLE X
AMENDMENTS TO INDENTURES AND OTHER NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indentures and Other Note Documents...................50
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01. Termination of the Trusts...........................................................51
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders..........................................52
Section 12.02. Certificates Nonassessable and Fully Paid...........................................52
Section 12.03. Registration of Equipment Notes in Name of Subordination Agent......................53
Section 12.04. Notices.............................................................................53
Section 12.05. Governing Law.......................................................................54
Section 12.06. Severability of Provisions..........................................................54
Section 12.07. Trust Indenture Act Controls........................................................54
Section 12.08. Effect of Headings and Table of Contents............................................55
Section 12.09. Successors and Assigns..............................................................55
Section 12.10. Benefits of Agreement...............................................................55
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Section 12.11. Legal Holidays......................................................................55
Section 12.12. Counterparts........................................................................55
Section 12.13. Communication by Certificateholders with Other Certificateholders...................55
Section 12.14. Normal Commercial Relations.........................................................55
Section 12.15. No Recourse Against Others..........................................................55
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Reconciliation and tie between American Airlines Pass
Through Trust Agreement,
dated as of October 1, 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) 7.08
(a)(2) 7.08
312(a) 7.12; 8.01; 8.02
313(a) 8.03
313(b) 8.03
314(a)(1)-(3) 8.04(a)-(c)
(a)(4) 8.04(d)
(c)(1) 1.02
(c)(2) 1.02
(d)(1) 1.02; 7.13; 11.01
(d)(2) 1.02; 7.13; 11.01
(d)(3) 1.02; 2.01
(e) 1.02
315(b) 7.02
315(c) 7.01(b)
316(a)(last sentence) 1.04(c)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(d)
317(a)(1) 6.03
(b) 7.13
318(a) 12.07
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PASS
THROUGH TRUST AGREEMENT
This PASS
THROUGH TRUST AGREEMENT, dated as of May 24, 2001
(the "Basic Agreement"), between American Airlines, Inc., a Delaware
corporation, 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 American 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 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 and to any provisions to
the contrary in any applicable Trust Supplement;
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 identical 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, subject to the terms of any
related Intercreditor Agreement and to any terms to the contrary in any
applicable Trust Supplement, shall hold such Equipment Notes in trust for the
benefit of the Certificateholders of such Trust;
WHEREAS, to facilitate the sale of Equipment Notes to, and the
purchase of Equipment Notes by, the Trustee on behalf of each Trust created from
time to time pursuant to this Agreement, the Company as the "issuer", as such
term is defined in and solely for purposes of the Securities Act of 1933, as
amended, 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 to date, has duly authorized the execution and
delivery of this Basic Agreement and is undertaking to perform certain
administrative and ministerial duties hereunder and is also undertaking to pay
the fees and expenses of the Trustee; and
WHEREAS, upon the issuance of the Exchange Certificates, if
any, or the effectiveness of the Shelf Registration Statement, this Basic
Agreement, as supplemented from time to time, shall be subject to the provisions
of the Trust Indenture Act and shall, to the extent applicable, be governed by
such provisions;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Basic
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms used herein that are defined in this
Article I have the meanings assigned to them in this
Article I, and include the plural as well as the
singular;
(2) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference
therein, or by the rules promulgated under the Trust
Indenture Act, have the meanings assigned to them
therein;
(3) all references in this Basic Agreement to designated
"Articles", "Sections", "Subsections" and other
subdivisions are to the designated Articles,
Sections, Subsections and other subdivisions of this
Basic Agreement;
(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, Subsection or other subdivision;
(5) unless the context otherwise requires, whenever the
words "including", "include" or "includes" are used
herein, it shall be deemed to be followed by the
phrase "without limitation"; and
(6) 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: Has the meaning, with respect to any Certificateholder,
specified in Section 1.04(a).
Affiliate: Means, with respect to any specified Person, 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, directly or indirectly, to direct the management and policies of such
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Person, whether through the ownership of voting securities or by contract or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
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: Means, with respect to the Certificates of
any series, any Paying Agent or Registrar for the Certificates of such series.
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: Means, with respect to the
Certificates of any series, a beneficial interest in the Certificates of such
series, ownership and transfers of which shall be made through book entries as
described in Section 3.05.
Business Day: Means, with respect to the Certificates of any
series, any day other than a Saturday, a Sunday or a day on which commercial
banks are required or authorized to close in
New York,
New York, Dallas, Texas,
or, so long as any Certificate of such series is outstanding, the city and state
in which the Trustee or any related Loan Trustee maintains its Corporate Trust
Office or receives and disburses funds.
Certificate: Means any one of the certificates executed and
authenticated by the Trustee, substantially in the form specified in the
relevant Trust Supplement or any Exchange Certificates issued in exchange
therefor or replacement thereof pursuant to any Trust Supplement.
Certificate Account: Means, with respect to the Certificates
of any series, the account or accounts created and maintained for such series
pursuant to Section 4.01(a) and the related Trust Supplement.
Certificateholder or Holder: Means, with respect to the
Certificates of any series, the Person in whose name a Certificate of such
series is registered in the Register for Certificates of such series.
Certificate Owner: Means, with respect to the Certificates of
any series, for purposes of Section 3.05, a 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 American Airlines, Inc., a Delaware
corporation, or its successor in interest pursuant to Section 5.02.
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Controlling Party: Means, with respect to the Certificates of
any series, the Person entitled to act as such pursuant to the terms of the
related Intercreditor Agreement.
Corporate Trust Office: Means, with respect to the Trustee or
any Loan Trustee, 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: Means, with respect to the Certificates of any
series, the date designated as such in the Trust Supplement establishing such
series.
Definitive Certificates: Has the meaning, with respect to the
Certificates of any series, specified in Section 3.05.
Direction: Has the meaning specified in Section 1.04(a).
Distribution Date: Means any Regular Distribution Date,
Special Distribution Date or Initial Regular Distribution Date.
Equipment Note: Means, with respect to any Trust, any one of
the notes, certificates or instruments issued pursuant to any Indenture and
described as "Equipment Notes" in, or on a schedule attached to, the Trust
Supplement in respect of such Trust and to be held by the Trustee as part of
such Trust, including any Equipment Note (as so defined) issued under the
applicable Indenture in replacement thereof or substitution therefor.
ERISA: Means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor federal statute.
Escrow Account: Has the meaning, with respect to any Trust,
specified in Section 2.02(b).
Escrowed Funds: Has the meaning, with respect to any Trust,
specified in Section 2.02(b).
Event of Default: Means, in respect of any Trust, an Indenture
Event of Default under any Indenture pursuant to which Equipment Notes held by
such Trust were issued and such other event as may be designated under the
related Trust Supplement as an "Event of Default".
Exchange Certificates: means any certificates substantially in
the form specified in a Trust Supplement and issued pursuant to the Registration
Rights Agreement in exchange for the Certificates initially issued thereunder.
Fractional Undivided Interest: Means the fractional undivided
interest in a Trust that is evidenced by a Certificate relating to such Trust.
Holder: Has the meaning specified in the definition of
"Certificateholder or Holder".
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Indenture: Means, with respect to any Trust, each of the one
or more separate trust indenture and security agreements or trust indenture and
mortgages or similar documents described in, or on a schedule attached to, the
Trust Supplement and an indenture having substantially the same terms and
conditions which relates to a Substitute Aircraft, as each such indenture may be
amended or supplemented in accordance with its respective terms; and
"Indentures" means all of such agreements.
Indenture Event of Default: Means, with respect to any
Indenture, any Event of Default (as such term is defined in such Indenture).
Initial Regular Distribution Date: Means, with respect to the
Certificates of any series, the first Regular Distribution Date on which a
Scheduled Payment is to be made.
Intercreditor Agreement: Means (a) any agreement by and among
the Trustee, as trustee with respect to one or more Trusts, one or more
Liquidity Providers, if applicable, and a Subordination Agent providing, among
other things, for the distribution of payments made in respect of Equipment
Notes held by such Trusts, or (b) such other agreement or agreements designated
as an "Intercreditor Agreement" in the Trust Supplement relating to any Trust.
Issuance Date: Means, with respect to the Certificates of any
series, the date of the issuance of such Certificates.
Lease: Means any lease between an Owner Trustee, as the lessor
(or such other Person acting as the lessor), and the Company, as the lessee,
referred to in the related Indenture, as such lease may be amended, supplemented
or otherwise modified in accordance with its terms; and "Leases" means all such
Leases.
Letter of Representations: Means, with respect to the
Certificates of any series, an agreement among the Company, the Trustee and the
initial Clearing Agency substantially in the form attached as an Exhibit to the
related Trust Supplement, as such letter may be modified or supplemented, or any
successor letter thereto.
Liquidity Facility: Means, with respect to the Certificates of
any series or any Equipment Notes, (a) any revolving credit agreement, letter of
credit, insurance policy, surety bond or financial guaranty or similar facility
for the provision of liquidity support relating to the Certificates of such
series between a Liquidity Provider and a Subordination Agent or one or more
other Persons, as amended, replaced, supplemented or otherwise modified from
time to time in accordance with its terms and, if applicable, the terms of any
Intercreditor Agreement, or (b) such other agreement or agreements designated as
a "Liquidity Facility" in the Trust Supplement relating to any Trust.
Liquidity Provider: Means, with respect to the Certificates of
any series, a bank, insurance company, financial institution or other Person
that agrees to provide a Liquidity Facility for the benefit of the holders of
Certificates of such series.
Loan Trustee: Means, with respect to any Equipment Note or the
Indenture applicable thereto, the bank, trust company or other financial
institution designated as loan or
5
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: Means, with respect to the Certificates of any
series, the Equipment Notes with respect to such Certificates and, with respect
to such Equipment Notes, the related Indenture, Note Purchase Agreement, and, if
the related Aircraft is leased to the Company, the related Lease and the related
Purchase Agreement Assignment (as defined in the related Lease), if any.
Note Purchase Agreement: Means, with respect to the
Certificates of any series, 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 Company, by the Chairman or Vice Chairman of the Board of Directors,
the President, any Executive Vice President, any Senior Vice President, any Vice
President or the Treasurer of 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.
Opinion of Counsel: Means a written opinion of legal counsel
who (a) in the case of counsel for the Company may be (i) a senior attorney of
the Company one of whose principal duties is furnishing advice as to legal
matters, (ii) Debevoise & Xxxxxxxx or (iii) such other counsel designated by the
Company and reasonably acceptable to the Trustee and (b) in the case of any
Owner Trustee or any Loan Trustee, such counsel as they may designate, whether
or not such counsel is an employee of any of them, and who shall be reasonably
acceptable to the Trustee.
Outstanding: When used 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 payment of 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: Means, with respect to any Equipment Note,
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
6
Participants" at any time of determination means all of the Owner Participants
thus referred to in the Indentures.
Owner Trustee: Means, with respect to any Equipment Note, 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 related
Indentures.
Paying Agent: Means, with respect to the Certificates of any
series, the paying agent maintained and appointed for the Certificates of such
series pursuant to Section 7.12.
Permitted Investments: Means obligations of the United States
of America or agencies or instrumentalities thereof for the payment of which the
full faith and credit of the United States of America is pledged, maturing in
not more than 60 days after the date of acquisition thereof or such lesser time
as is required for the distribution of any Special Payments on a Special
Distribution Date.
Person: Means any person, including any individual,
corporation, limited liability company, partnership, joint venture, association,
joint-stock company, trust, trustee, unincorporated organization, or government
or any agency or political subdivision thereof.
Pool Balance: Means, with respect to the Certificates of any
series as of any date, except to the extent otherwise provided in the applicable
Trust Supplements, (i) the original aggregate face amount of the Certificates of
such series less (ii) the aggregate amount of all distributions made in respect
of such Certificates other than distributions made in respect of interest or
premium or reimbursement of any costs or expenses incurred in connection
therewith. The Pool Balance as of any Regular Distribution Date or Special
Distribution Date with respect to such series 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
date.
Pool Factor: Means, with respect to any series of Certificates
as of any date, except to the extent otherwise provided in the applicable Trust
Supplement, the quotient (rounded to the seventh decimal place, with 0.00000005
being rounded upward) computed by dividing (i) the Pool Balance of such series
as of such date by (ii) the original aggregate face amount of the Certificates
of such series. The Pool Factor as of any Regular Distribution Date or Special
Distribution Date with respect to such series 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 relating to such series and the distribution
thereof to be made on such date.
Postponed Notes: Means, with respect to any Trust or the
related series of Certificates, 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: Means, with respect to any Trust or the
related series of Certificates, an Officer's Certificate of the Company (i)
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, (ii) identifying the amount of the purchase price of each such
Equipment
7
Note and the aggregate purchase price for all such Equipment Notes, (iii)
setting forth the reasons for such postponement and (iv) 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 (subject to
subsequent change from time to time in accordance with the relevant Note
Purchase Agreement), 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 (subject
to subsequent change from time to time in accordance with the relevant Note
Purchase Agreement).
Potential Purchaser: Has the meaning, with respect to any
Certificateholder, specified in Section 6.01(d).
Purchasing Certificateholder: Has the meaning, with respect to
any Certificateholder, specified in Section 6.01(d).
Record Date: Means, with respect to any Trust or the related
series of Certificates, (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, or such other date as shall be specified for such series in
the applicable Trust Supplement, 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, or such other date as shall be specified for such
series in the applicable Trust Supplement.
Register and Registrar: Means, with respect to the
Certificates of any series, the register maintained and the registrar appointed
pursuant to Sections 3.04 and 7.12, respectively.
Registration Event: has the meaning specified in the
Registration Rights Agreement.
Registration Rights Agreement: means the Registration Rights
Agreement dated as of May [ ], 2001 among the Company, the Trustee and the
Placement Agents named therein.
Regular Distribution Date: Means, with respect to
distributions of Scheduled Payments in respect of any series of Certificates,
each date designated as such in this Agreement, until payment of all the
Scheduled Payments to be made under the Equipment Notes held in the Trust have
been made or until such Equipment Notes have been redeemed or otherwise prepaid
in full.
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: Means, with respect to any Trustee, any
Loan Trustee and any Owner Trustee, any officer in the Corporate Trust
Department or similar department of the Trustee, such Loan Trustee or such Owner
Trustee, as the case may be, or any other officer customarily performing
functions similar to those performed by the persons who at the time shall
8
be such officers or to whom any corporate trust matter is referred because of
his knowledge of and familiarity with a particular subject.
Responsible Party: Means, with respect to the Certificates of
any series, the Company or the other Person designated as such in the related
Trust Supplement.
Scheduled Payment: Means, with respect to any Equipment Note,
except to the extent otherwise provided in the applicable Trust Supplement, (i)
any payment of principal or interest on such Equipment Note (other than any such
payment which is not in fact received by the Trustee or any Subordination Agent
within five days after the date on which such payment is scheduled to be made)
or (ii) any distribution in respect of principal or interest on such Equipment
Note to the Holders of 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 after
the date upon which payment is scheduled to be made), which payment in the case
of clause (i) or clause (ii) represents an installment of principal on such
Equipment Note at the stated maturity of such installment, or the payment of
regularly scheduled interest accrued on the unpaid principal amount of such
Equipment Note, or both; provided, however, that any payment of principal,
premium, if any, or interest resulting from the redemption or purchase of any
Equipment Note shall not constitute a Scheduled Payment.
SEC: Means the Securities and Exchange Commission, as from
time to time constituted or created under the Securities Exchange Act of 1934,
as amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
Selling Certificateholder: Has the meaning, with respect to
any Certificateholder, specified in Section 6.01(d).
Shelf Registration Statement: has the meaning specified in the
Registration Rights Agreement.
Special Distribution Date: Means, with respect to the
Certificates of any series, each date on which a Special Payment is to be
distributed as specified in this Agreement.
Special Payment: Means, except to the extent otherwise
provided in the applicable Trust Supplement, (i) any payment (other than a
Scheduled Payment) in respect of, or any proceeds of, any Equipment Note held in
a Trust or the Collateral or Indenture Estate, as the case may be (in each case,
as defined in each Indenture relating to such Trust), (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: Means, with respect to the
Certificates of any series, the account or accounts created and maintained for
such series pursuant to Section 4.01(b) and the related Trust Supplement.
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Specified Investments: Means, with respect to any Trust,
unless otherwise specified in the related Trust Supplement, (i) obligations of
the United States Government or agencies thereof, or obligations guaranteed by
the United States Government, (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 Ratings Services
(including the Trustee if such conditions are met), (iii) certificates of
deposit issued by commercial banks organized under the laws of the United States
or of any political subdivision thereof having a combined capital and surplus in
excess of $500,000,000 which banks or their holding companies have a rating of A
or its equivalent by Xxxxx'x Investors Service, Inc. or A2 or its equivalent by
Standard & Poor's Ratings Services (including the Trustee if such conditions are
met); 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 (including the Trustee if such conditions are met) 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 for such Trust by at least 15 days. State Street Bank and Trust
Company of Connecticut, National Association acting as Pass Through Trustee is
hereby authorized, in making or disposing of any investment described herein, to
deal with itself (in its individual capacity) or with any one or more of its
affiliates, whether it or such affiliate is acting as an agent of the Pass
Through Trustee or for any third person or dealing as principal for its own
account.
Subordination Agent: Has the meaning, with respect to the
Certificates of any series, specified therefor in the relevant Intercreditor
Agreement.
Substitute Aircraft: Means, with respect to any Trust, 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, with respect to the
Certificates of any series, assigned to that term or any of the terms "Delivery
Date", "Funding Date" or "Closing Date" in any relevant Note Purchase Agreement,
and in any event refers to any such date as it may be changed from time to time
in accordance with the terms of such Note Purchase Agreement.
Triggering Event: Has the meaning, with respect to the
Certificates of any series, specified therefor in the relevant Intercreditor
Agreement.
Trust: Means, with respect to the Certificates of any series,
the separate trust created under this Agreement.
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Trustee: Means, with respect to any particular Trust, the
institution executing this Agreement as the Trustee, or its successor in
interest, and any successor or other trustee appointed as provided herein (it
being understood that the same institution need not act as the Trustee in
respect of all of the Trusts created pursuant to this Basic Agreement and the
Trust Supplements).
Trust Indenture Act: Except as otherwise provided in Section
9.06, means, with respect to any particular Trust, the Trust Indenture Act of
1939, as amended and in force at the date as of which the related Trust
Supplement was executed.
Trust Property: Means, with respect to any Trust, except to
the extent otherwise provided in the applicable Trust Supplement, (i) subject to
any related Intercreditor Agreement, 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) debt instruments issued by the Company in accordance with
the first paragraph of Section 2.02(b), (iii) funds from time to time deposited
in the related Escrow Account, the related Certificate Account and the related
Special Payments Account and, subject to any related Intercreditor Agreement,
any proceeds from the sale by the Trustee pursuant to Article VI hereof of any
Equipment Note referred to in (i) above, (iv) all rights of such Trust and the
Trustee, on behalf of the Trust, under any Intercreditor Agreement or Liquidity
Facility, including, without limitation, all rights to receive all monies and
other property payable thereunder, and (v) all monies or other property
receivable under any Intercreditor Agreement or Liquidity Facility for such
Trust.
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, as such
agreement may from time to time be supplemented, amended or otherwise modified.
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request (except with respect to matters set forth in Article II)
by the Company, any Owner Trustee or any Loan Trustee to the Trustee to take any
action under any provision of this 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 (i) an
Officer's Certificate stating that, in the opinion of the signer or signers, all
conditions precedent, if any, provided for in this Basic Agreement or this
Agreement relating to the proposed action have been complied with and (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Basic Agreement or this
Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished. Every certificate or opinion with
respect to compliance with a condition or covenant provided for in this Basic
Agreement or, in respect of the Certificates of any series, this Agreement
(other than a certificate provided pursuant to Section 8.04(d)) or any Trust
Supplement shall include:
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(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
(b) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters and any such Person may certify or give an opinion
as to such matters in one or several documents.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Basic Agreement or, in respect of the Certificates
of any series, this Agreement, they may, but need not, be consolidated and form
one instrument.
Section 1.04. Directions of Certificate Holders. (a) Any
direction, consent, request, demand, authorization, notice, waiver or other
action provided by this Agreement or in respect of the Certificates of any
series to be given or taken by Certificateholders (a "Direction") may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Certificateholders in person or by an agent or proxy duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, when it is 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 or
proxy shall be sufficient for any purpose of this Agreement and conclusive in
favor of the Trustee, the Company and the related Loan Trustee, if made in the
manner provided in this Section 1.04.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the certificate of any notary public
or other officer of any jurisdiction authorized to take acknowledgments of deeds
or administer oaths that the Person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to such
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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 under this Agreement, Certificates owned by
the Company, any related Owner Trustee, any related Owner Participant or any
Affiliate of any such Person shall be disregarded and deemed not to be
Outstanding for purposes of any such determination. In determining whether the
Trustee shall be protected in relying upon any such Direction, only Certificates
which 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, and (ii) if
any amount of Certificates of any series owned by any such Person have been
pledged in good faith, such Certificates shall not be disregarded if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Certificates and that the pledgee is not the Company, 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 Direction. Notwithstanding Section 316(c) of the Trust Indenture Act, such
record date shall be the record date specified in such Officer's Certificate,
which shall be a date not more than 30 days prior to the first solicitation of
Certificateholders of the applicable series in connection therewith. If such a
record date is fixed, such Direction may be given before or after such record
date, but only the Certificateholders of record of the applicable 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 Direction, and for that purpose the Outstanding
Certificates of such series shall be computed as of such record date; provided,
however, that no such Direction by the Certificateholders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Agreement not later than one year after such record date.
Nothing in this paragraph shall be construed to prevent the Company from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be deemed cancelled and of no
effect).
(e) Any Direction by the Holder of any Certificate shall bind
the Holder of every Certificate issued upon the transfer thereof or in exchange
therefor or in lieu thereof, whether or not notation of such Direction is made
upon such Certificate.
(f) Except as otherwise provided in Section 1.04(c),
Certificates of any series owned by or pledged to any Person shall have an equal
and proportionate benefit under the
13
provisions of this Agreement, without preference, priority or distinction as
among all of the Certificates of such series.
(g) The Company and the Trustee may make reasonable rules for
action by or at a meeting of Certificateholders.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF TRUST PROPERTY
Section 2.01. Amount Unlimited; Issuable in Series. (a) The
aggregate face amount of Certificates that may be authenticated and delivered
under this Basic Agreement is unlimited. 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 are 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 specified in any
Intercreditor Agreement or in the applicable Trust Supplement, will have no
rights, benefits or interests in respect of any other Trust or the Trust
Property held therein. All Certificates of the same series shall be in all
respects equally and ratably entitled to the benefits of this Agreement without
preference, priority or distinction on account of the actual time or times of
authentication and delivery, all in accordance with the terms and provisions of
this Agreement.
(b) The following matters shall be established with respect to
the Certificates of each series issued hereunder by a Trust Supplement executed
and delivered by and between the Company and the Trustee:
(1) the formation of the Trust as to which the
Certificates of such series represent fractional
undivided interests and its designation (which
designation shall distinguish such Trust from each
other Trust created under this Basic Agreement and a
Trust Supplement);
(2) the specific title of the Certificates of such series
(which title shall distinguish the Certificates of
such series from each other series of Certificates
created under this Basic Agreement and a Trust
Supplement);
(3) subject to Section 2.01(a) hereof, any limit upon the
aggregate face amount of the Certificates of such
series which may be authenticated and delivered under
this Basic Agreement (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, 3.05(d) and 3.06);
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(4) the Cut-off Date with respect to the Certificates of
such series and the related Trust;
(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 3.04 or Section
7.12(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 composite currencies or
currency units) in which the Certificates of such
series shall be denominated or payable;
(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 or payable in a
currency other than United States dollars and if
other than as provided in Section 3.05, 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 Trust formed by such Trust Supplement
and of the related Aircraft and Note Documents;
(12) provisions with respect to the terms for which the
definitions set forth in Article I hereof or the
terms of any Section hereof, including Section 11.01
hereof, permit or require further specification in
the related Trust Supplement;
(13) any restrictions (including legends) in respect of
ERISA or tax matters;
(14) the acceptance of appointment by the institution
named to act as Trustee with respect to such Trust,
if different from the institution executing this
Basic Agreement or its successor;
(15) whether such series will be subject to an
Intercreditor Agreement and, if so, the specific
designation of such Intercreditor Agreement and the
rights of Potential Purchasers upon the occurrence of
a Triggering Event;
15
(16) whether such series will have the benefit of a
Liquidity Facility and, if so, any terms appropriate
thereto;
(17) whether there will be a deposit agreement, escrow
agreement or other arrangement prior to the delivery
of one or more Aircraft or the commencement of the
Lease in respect of one or more Aircraft and, if so,
any terms appropriate thereto;
(18) the extent, if any, to which the Company may acquire
Certificates and deliver such Certificates or cash to
the respective Trusts and obtain the release of
Equipment Notes or other Trust Property held by such
Trusts;
(19) if the Certificates of such series are to be issued
in bearer form, the forms thereof and any other
special terms relating thereto;
(20) the "Responsible Party" for purposes of directing the
Trustee to make Specified Investments;
(21) whether such series will be subject to a Registration
Rights Agreement, and, if so, any terms appropriate
thereto; and
(22) any other terms of the Certificates of such series
(which terms shall not be inconsistent with the
provisions of the Trust Indenture Act but may modify,
amend, supplement or delete any of the terms of this
Basic Agreement), including any terms of the
Certificates of such series which may be required or
advisable under United States laws or regulations or
advisable (as determined by the Company) 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 or waiver 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
the Equipment Notes contemplated to be purchased by the Trustee under the
related Note Purchase Agreements and, concurrently therewith (unless the Company
shall have delivered to the Trustee the Postponement Notice relating to one or
more Postponed Notes pursuant to Subsection (b) below), the Trustee shall
purchase, pursuant to the terms and conditions of the Note Purchase Agreements,
such Equipment Notes (except Postponed Notes, if any) at a purchase price equal
to
16
the amount of such consideration so received. Except as provided in Sections
3.03, 3.04, 3.05 and 3.06 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
the related Trust, the "Escrow Account") to be maintained as part of the related
Trust an amount equal to the purchase price of such Postponed Notes (the
"Escrowed Funds"). The portion of the Escrowed Funds so deposited with respect
to any particular Postponed Notes shall be invested (a) by the Trustee at the
direction and risk of, and for the benefit of, the Responsible Party in
Specified Investments or (b) if provided in the Trust Supplement relating to
such series of Certificates and subject to the terms and conditions set forth
therein, in debt instruments of the Company, in each case (i) maturing no later
than any scheduled Transfer Date relating to such Postponed Notes, or (ii) if no
such Transfer Date has been scheduled, maturing on the next Business Day, or
(iii) if subsequent to the giving of the applicable Postponement Notice the
Company has given notice to the Trustee that such Postponed Notes will not be
issued, maturing on the next applicable Special Distribution Date, if such
investments are reasonably available for purchase. The Trustee shall make
withdrawals from the Escrow Account only as provided in this Agreement. Upon
request of the Company on one or more occasions and the satisfaction or waiver
of the closing conditions specified in the applicable Note Purchase Agreements
on or prior to the related Cut-off Date, the Trustee shall purchase the
applicable Postponed Notes, on the terms specified in such Note Purchase
Agreements, with the Escrowed Funds withdrawn from the Escrow Account.
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
Responsible Party in Specified Investments maturing as provided in the preceding
paragraph.
Subject to the provisions of the Intercreditor Agreement, any
earnings on Specified Investments received from time to time by the Trustee
shall be promptly distributed to the Responsible Party. The Responsible Party
shall pay to the Trustee for deposit to the relevant Escrow Account an amount
equal to any net losses on any Specified Investments made at its direction and
risk as incurred. On any Regular Distribution Date in respect of the
Certificates of any series occurring prior to the date of purchase of any
Postponed Notes by the Trustee, the Responsible Party will pay (in immediately
available funds) to the Trustee an amount equal to the interest that would have
accrued on such Postponed Notes if such Postponed Notes had been purchased on
the later of the Issuance Date or the previous Regular Distribution Date in
respect of the Certificates of such series to, but not including, such Regular
Distribution Date. On the first Regular Distribution Date in respect of the
Certificates of any series following the purchase of any Postponed Notes by the
Trustee, the Responsible Party will pay (in immediately available funds) to the
Trustee an amount equal to the interest that would have accrued on such
Postponed Notes if such Postponed Notes had been purchased on the later of the
Issuance Date or the
17
previous Regular Distribution Date in respect of the Certificates of such series
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 not less than 15 days
following the date of such notice, (i) the Responsible Party shall pay (in
immediately available funds) to the Trustee for deposit in the related Special
Payments Account, an amount equal to the interest that would have accrued on the
Postponed Notes designated in such notice from the later of the Issuance Date or
the previous Regular Distribution Date in respect of the Certificates of such
series 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 Responsible Party 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
Special Distribution Date occurring not less than 15 days following such Cut-off
Date (i) the Responsible Party 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 from the later of
the Issuance Date or the previous Regular Distribution Date in respect of the
Certificates of such series to, but not including, such Special Distribution
Date and (ii) the Trustee shall transfer such unused Escrowed Funds and the
amount paid by the Responsible Party pursuant to the immediately preceding
clause (i) to such Special Payments Account for distribution as a Special
Payment in accordance with the provisions hereof.
Section 2.03. Acceptance by Trustee. The Trustee, by 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 Trust Property 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 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 the acceptance of each
Certificate of such series issued to it under this Agreement, each initial
Holder of such series as grantor of such Trust shall thereby join in the
creation and declaration of such Trust. No Certificateholder of any series shall
have legal title to any part of the Trust Property of the related 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 such related Trust Supplement, the Trustee shall not be authorized
or empowered to acquire any other investments or engage in any other activities.
Except to the extent otherwise provided in the applicable Trust Supplement, the
18
Trustee shall not be authorized or empowered to do anything that would cause
such Trust to fail to qualify as a "grantor trust" for federal income tax
purposes (including as subject to this restriction, acquiring any Aircraft (as
defined in the 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. Except to the extent otherwise specified in the applicable Trust
Supplement, the Certificates of each series shall be issued in fully registered
form without coupons and shall be substantially in the form specified in such
Trust Supplement, 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 placed thereon as may be
required to comply with any applicable laws, rules, regulations or 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 determined
by the Trustee or the officers executing such Certificates, as evidenced by the
Trustee's or such officers' execution of the Certificates.
Except as provided in Section 3.05, the definitive
Certificates of such series shall be typed, 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 officers executing such
Certificates, as evidenced by their 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 different denomination. The Certificates of such series shall
be executed on behalf of the Trustee by manual or facsimile signature of a
Responsible Officer of the Trustee. Certificates of any series bearing the
manual or facsimile signature of an individual who was, at the time when such
signature was affixed, authorized to sign on behalf of the Trustee shall be
valid and binding obligations of the Trustee, notwithstanding that such
individual has ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such office at the date of such
Certificates.
Section 3.02. Authentication of Certificates. (a) Except to
the extent otherwise specified in the applicable Trust Supplement, on the
Issuance Date, the Trustee shall duly execute, authenticate and deliver
Certificates of each series in authorized denominations equaling in the
aggregate the aggregate face amount of the Equipment Notes that may be purchased
by the Trustee pursuant to the related Note Purchase Agreements, and evidencing
the entire ownership of the related Trust. Thereafter, the Trustee shall duly
execute, authenticate and deliver the Certificates of such series as herein
provided.
19
(b) 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 the Trust Supplement relating to such series of Certificates
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 the date of their
authentication.
Section 3.03. Temporary Certificates. Until definitive
Certificates are ready for delivery, the Trustee shall execute, authenticate and
deliver temporary Certificates of each series. Temporary Certificates of each
series shall be substantially in the form of definitive Certificates of such
series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the officers executing the temporary
Certificates of such series, as evidenced by their execution of such temporary
Certificates. If temporary Certificates of any series are issued, the Trustee
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 or the office or agency of the Trustee designated for such purpose
pursuant to Section 7.12, without charge to the Certificateholder. Upon
surrender for cancellation of any one or more temporary Certificates, the
Trustee shall execute, authenticate and deliver in exchange therefor a like face
amount of definitive Certificates of like series, in authorized denominations
and of a like Fractional Undivided Interest. Until so exchanged, such temporary
Certificates shall be entitled to the same benefits under this Agreement as
definitive Certificates of such series.
Section 3.04. Transfer and Exchange. The Trustee shall cause
to be kept at the office or agency to be maintained by it in accordance with the
provisions of Section 7.12 a register (the "Register") for each 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 such Certificates of each series and transfers and
exchanges of such Certificates as herein provided.
All Certificates issued upon any registration of transfer or
exchange of Certificates of any series shall be valid obligations of the
applicable Trust, evidencing the same interest therein, and entitled to the same
benefits under this Agreement, as the Certificates of such series surrendered
upon such registration of transfer or exchange.
Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office or such other office or agency, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of like series, in authorized
denominations of a like aggregate Fractional Undivided Interest.
At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of like series, in authorized denominations and
of a like aggregate Fractional Undivided Interest, upon surrender of the
Certificates to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
20
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 or exchange shall be
cancelled and subsequently destroyed by the Trustee.
Section 3.05. Book-Entry and Definitive Certificates. (a)
Except for one Certificate of each series that may be issued in a denomination
of other than an even multiple of $1,000, the Certificates of any series may be
issued at the option of the Company 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 in Subsection (d) below. As to the Certificates of any such series
(other than the one Certificate or such series issued in a denomination of other
than an even multiple of $1,000), unless and until definitive, fully registered
Certificates (the "Definitive Certificates") have been issued pursuant to
Subsection (d) below:
(1) the provisions of this Section 3.05 shall be in full
force and effect;
(2) the Company, the Paying Agent, the Registrar and the
Trustee may deal with the Clearing Agency for all
purposes (including the making of distributions on
the Certificates);
(3) to the extent that the provisions of this Section
3.05 conflict with any other provisions of this
Agreement (other than the provisions of any Trust
Supplement expressly amending this Section 3.05 as
permitted by this Basic Agreement), the provisions of
this Section 3.05 shall control;
(4) 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, interest and premium, if
any, on the Certificates to such Clearing Agency
Participants;
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(5) such Certificates of such series may be transferred
in whole, but not in part, and in the manner provided
in Section 3.04, by the Clearing Agency holding such
Certificates to a nominee of such Clearing Agency, or
by such Clearing Agency to a successor Clearing
Agency that has been selected or approved by the
Company or to a nominee of such successor Clearing
Agency; and
(6) whenever this Agreement requires or permits actions
to be taken based upon instructions or directions of
Certificateholders of such series holding
Certificates of such series evidencing a specified
percentage of the Fractional Undivided Interests in
the related Trust, the Clearing Agency shall be
deemed to represent such percentage only to the
extent that it has received instructions to such
effect from 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. Neither the Company nor the Trustee shall
have any obligation to determine whether the Clearing
Agency has in fact received any such instructions.
(b) Whenever notice or other communication to the
Certificateholders of a 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) Except as otherwise provided in the related Trust
Supplement, the Trustee shall enter into the applicable Letter of
Representations with respect to each series of Certificates and fulfill its
responsibilities thereunder.
(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 discharge properly 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 such 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
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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 Persons in whose names 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) The provisions of this Section 3.05 may be made
inapplicable to any series or may be amended with respect to any series in the
related Trust Supplement.
Section 3.06. Mutilated, Destroyed, Lost or Stolen
Certificates. If (i) 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 (ii) 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 and the Company harmless, then, in the absence of notice to the
Registrar or the Trustee that such destroyed, lost or stolen Certificate has
been acquired by a protected purchaser (within the meaning of Article 8 of the
Uniform Commercial Code in effect in any applicable jurisdiction), and provided
that the requirements of Section 8-405 of the Uniform Commercial Code in effect
in any applicable jurisdiction are met, the Trustee shall execute, authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate or Certificates of like series, in
authorized denominations and of like Fractional Undivided Interest and bearing a
number not contemporaneously outstanding.
In connection with the issuance of any new Certificate under
this Section 3.06, 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 3.06
shall constitute conclusive evidence of the appropriate Fractional Undivided
Interest in the related Trust, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
The provisions of this Section 3.06 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.07. Persons Deemed Owners. Prior to due presentment
of a Certificate for registration of transfer, the Company, the Trustee, the
Registrar and any Paying Agent shall deem and treat the Person in whose name any
Certificate is registered (as of the day of determination) on the Register as
the owner of such Certificate and the Certificateholder for the purpose of
receiving distributions pursuant to Article IV and for all other purposes
whatsoever, and none of the Company, the Trustee, the Registrar or any Paying
Agent shall be affected by any notice to the contrary. All payments or
distributions made to any such Person shall be valid and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for moneys
payable on any such Certificate.
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Section 3.08. Cancellation. All Certificates surrendered for
payment or transfer or exchange shall, if surrendered to the Trustee or any
agent of the Trustee other than the Registrar, be delivered to the Registrar for
cancellation and shall promptly be cancelled by it. No Certificates shall be
authenticated in lieu of or in exchange for any Certificates cancelled as
provided in this Section 3.08, except as expressly permitted by this Agreement.
All cancelled Certificates held by the Registrar shall be destroyed and a
certification of their destruction delivered to the Trustee.
Section 3.09. Limitation of Liability for Payments. All
payments and distributions made to Certificateholders of any series in respect
of the Certificates of such series 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 for any payment or
distribution due to such Certificateholder pursuant to the terms of this
Agreement and that it will not have any recourse to the Company, the Trustee,
the Loan Trustees, any Owner Trustee or any Owner Participant except as
otherwise expressly provided in this Agreement, in any Note Document or in any
related Intercreditor Agreement.
The Company is a party to this Agreement solely for purposes
of meeting the requirements of the Trust Indenture Act, and therefore shall not
have any right, obligation or liability hereunder, or under the terms of any
Trust Supplement or any Certificates (except as otherwise expressly provided
herein or therein).
Section 3.10. CUSIP Numbers. The Certificates may include
"CUSIP" numbers (if then generally in use), and if so, the Trustee may use the
CUSIP numbers in notices in respect of the Certificates; provided, however, that
any such notice may state that no representation is made as to the correctness
or accuracy of the CUSIP number printed in the notice or on the Certificates,
that reliance may be placed only on the other identification numbers printed on
the Certificates, and any such notice shall not be affected by any defect or
omission of such CUSIP numbers.
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 such 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 or any
Intercreditor Agreement. On each day when a Scheduled Payment is made to the
Trustee or the Subordination Agent, as the case may be, as holder of the
Equipment Notes issued under the related Indenture, with respect to the
Certificates of any series, the Trustee, upon receipt of the
24
payments to it, shall immediately deposit the aggregate amount of such Scheduled
Payment in the applicable Certificate Account.
(b) The Trustee shall establish and maintain on behalf of the
Certificateholders of each 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 or any Intercreditor
Agreement. On each day when one or more Special Payments are made to the Trustee
or the Subordination Agent, as the case may be, as holder of the Equipment Notes
issued under the related Indenture or to the Trustee pursuant to the last two
paragraphs of Section 2.02(b) with respect to the Certificates of any series,
the Trustee, upon receipt of the payments to it, shall immediately deposit the
aggregate amount of such Special Payments in the applicable Special Payments
Account.
(c) The Trustee shall present (or, if applicable, cause the
Subordination Agent to present) to the Loan Trustee to which an Equipment Note
relates such Equipment Note on the date of its stated final maturity or, in the
case of any Equipment Note which is to be redeemed or purchased in whole
pursuant to the related Indenture, on the applicable redemption or purchase date
under such Indenture.
Section 4.02. Distributions from Certificate Account and
Special Payments Account. (a) Subject to the provisions of any Intercreditor
Agreement, 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 all or any part 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 total amount in the applicable Certificate Account,
except that, with respect to Certificates registered on the Record Date in the
name of a Clearing Agency (or its nominee), such distribution shall be made by
wire transfer in immediately available funds to the account designated by such
Clearing Agency (or such nominee).
(b) Subject to the provisions of any Intercreditor Agreement,
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 any Special Payments due on the Equipment Notes held in the
related Trust or realized upon the sale of such Equipment Notes, the Trustee
shall distribute out of the applicable Special Payments Account the entire
amount of such applicable Special Payment deposited therein pursuant to Section
4.01(b). There shall be so distributed to each Certificateholder of record of
such series on the Record Date with respect to such Special Distribution Date
(other than as provided in Section 11.01 concerning the final distribution) by
check mailed to such Certificateholder, at the address appearing in the
Register, such Certificateholder's pro rata share (based on the aggregate
Fractional Undivided Interest in
25
the related Trust held by such Certificateholder) of the total amount in the
applicable Special Payments Account on account of such Special Payment, except
that, with respect to Certificates registered on the Record Date in the name of
a Clearing Agency (or its nominee), such distribution shall be made by wire
transfer in immediately available funds to the account designated by such
Clearing Agency (or such nominee).
(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. Subject to the provisions of any Intercreditor Agreement: (i) in
the event of redemption or purchase of Equipment Notes held in the related
Trust, such notice shall be mailed not less than 15 days prior to the Special
Distribution Date for the Special Payment resulting from such redemption or
purchase, which Special Distribution Date shall be the date of such redemption
or purchase; (ii) in the event that the Trustee receives a notice from the
Company pursuant to Section 2.02(b) that Postponed Notes will not be purchased
by the Trustee, such notice of Special Payment shall be mailed as soon as
practicable after receipt of such notice from the Company and shall state the
Special Distribution Date for such Special Payment, which shall occur 15 days
after the date of such notice of Special Payment or (if such 15th day is not
practicable) as soon as practicable thereafter; (iii) in the event that any
Special Payment is to be made pursuant to the last paragraph of Section 2.02(b),
such notice of Special Payment shall be mailed on the Cut-off Date (or, if such
mailing on the Cut-off Date is not practicable, as soon as practicable after the
Cut-off Date) and shall state the Special Distribution Date for such Special
Payment, which shall occur 15 days after the date of such notice of Special
Payment or (if such 15th day is not practicable) as soon as practicable
thereafter; and (iv) in the case of any other Special Payments, such notice of
Special Payment shall be mailed as soon as practicable after the Trustee has
confirmed that it has received funds for such Special Payment and shall state
the Special Distribution Date for such Special Payment, which shall occur 15
days after the date of such notice of Special Payment or (if such 15th day is
not practicable) as soon as practicable thereafter. Notices mailed by the
Trustee as provided in the paragraphs above 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 (taking into account
any payment to be made by the Responsible Party pursuant to Section
2.02(b)) for each $1,000 face amount Certificate and the amount thereof
constituting principal, premium, if any, and interest;
(iii) the reason for the Special Payment; and
(iv) if the Special Distribution Date is the same date as a
Regular Distribution Date for the Certificates 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.
26
If any redemption or purchase 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, the Trustee will
include with each distribution to Certificateholders of the related series a
statement, giving effect to the distribution to be made on such Regular
Distribution Date or Special Distribution Date, and, except to the extent
otherwise provided in the applicable Trust Supplement, setting forth the
following information (per $1,000 aggregate face amount of 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 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
the Clearing Agency Participants reflected on the Clearing Agency's books as
holding interests in the Certificates on such Record Date. On each Regular
Distribution Date and Special 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
Participants for forwarding to holders of interests in the Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, except to the
extent otherwise provided in the applicable Trust Supplement, the Trustee shall
furnish to each Person who at any time during such calendar year was a
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i) and (a)(ii) above with respect to the
related 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 may 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 statement and such other items shall be prepared on
the basis of information supplied to the Trustee by the Clearing Agency
Participants and shall be delivered by the Trustee to such Clearing Agency
Participants to be available for forwarding by such Clearing Agency Participants
to the holders of interests in the Certificates.
Section 4.04. Investment of Special Payment Moneys. Any money
received by the Trustee pursuant to Section 4.01(b) representing a Special
Payment which is not distributed on the date received shall, to the extent
practicable, be invested by the Trustee in Permitted Investments selected by the
Company in telephonic (confirmed in writing) or written instructions to the
Trustee pending distribution of such Special Payment pursuant to Section 4.02.
Any
27
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. Absent receipt of instructions from the
Company, such Special Payment shall remain uninvested by the Trustee pending
receipt of investment instructions. The Trustee shall have no liability with
respect to any investment made pursuant to this Section 4.04, other than by
reason of the willful misconduct or negligence of the Trustee. All income and
earnings from such investments shall be distributed on such Special Distribution
Date as part of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence. The Company,
at its own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises, except as 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. (a) The Company
shall not consolidate with or merge into any other corporation under
circumstances where the Company is not the surviving corporation or convey,
transfer or lease substantially all of its assets as an entirety to any Person
unless the corporation formed by such consolidation or into which the Company is
merged or the Person that acquires by conveyance, transfer or lease
substantially all of the assets of the Company as an entirety shall be organized
and validly existing under the laws of the United States of America or any state
thereof or the District of Columbia, and such corporation or Person shall
execute and deliver to the Trustee an agreement in form and substance reasonably
satisfactory to the Trustee containing an assumption by such successor
corporation or Person of the due and punctual performance and observance of each
covenant and condition of this Agreement.
(b) Upon any consolidation or merger, or any conveyance,
transfer or lease of substantially all of the assets of the Company as an
entirety in accordance with this Section 5.02, the successor corporation or
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Agreement with the same effect as if such successor corporation or Person
had been named as the Company herein.
(c) The Trustee may receive an Officer's Certificate and an
Opinion of Counsel of the Company as conclusive evidence that any such
consolidation, merger, conveyance, transfer or lease, and any such assumption,
complies with the provisions of this Section 5.02.
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ARTICLE VI
DEFAULT
Section 6.01. Indenture Events of Default and Triggering
Events. (a) If in respect of any Trust, any Indenture Event of Default shall
occur and be continuing, then, and in each and every case, so long as such
Indenture Event of Default shall be continuing, and subject to the provisions of
any Intercreditor Agreement, the Trustee may vote all of the Equipment Notes
issued under the related Indenture and held in such Trust, and, upon the
direction of the Certificateholders holding Certificates evidencing Fractional
Undivided Interests in such Trust aggregating not less than a majority in
interest in such Trust, the Trustee shall vote not less than a corresponding
majority of such Equipment Notes in favor of directing the Loan Trustee under
such Indenture to declare the unpaid principal amount of the Equipment Notes
then outstanding to which such Indenture Event of Default relates and accrued
interest thereon to be due and payable under, and in accordance with the
provisions of, the relevant Indenture. In addition, if an Indenture Event of
Default shall have occurred and be continuing under any Indenture, subject to
the provisions of any Intercreditor Agreement, the Trustee may in accordance
with the relevant Indenture vote the Equipment Notes held in the Trust to which
such Indenture Event of Default relates to direct the Loan Trustee regarding the
exercise of remedies provided in such Indenture.
(b) In addition, after an Indenture Event of Default shall
have occurred and be continuing with respect to any Equipment Note, subject to
the provisions of any Intercreditor Agreement, the Trustee may in its
discretion, and upon the direction of the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less than
a majority in interest in the related Trust shall, by such officer or agent as
it may appoint, sell, convey, transfer and deliver such Equipment Note or
Equipment Notes, without recourse to or warranty by the Trustee or any
Certificateholder, to any Person. In any such case, the Trustee shall sell,
assign, contract to sell or otherwise dispose of and deliver such Equipment Note
or Equipment Notes in one or more parcels at public or private sale or sales, at
any location or locations at the option of the Trustee, all upon such terms and
conditions as it may reasonably deem advisable and at such prices as it may
reasonably deem advisable, for cash. If the Trustee so decides or is required to
sell or otherwise dispose of any Equipment Note pursuant to this Section, the
Trustee shall take such of the actions described above as it may reasonably deem
most effectual to complete the sale or other disposition of such Equipment Note,
so as to provide for the payment in full of all amounts due on the related
series of Certificates. Notwithstanding the foregoing, any action taken by the
Trustee under this Section shall not, in the reasonable judgment of the Trustee,
be adverse to the best interests of the Certificateholders of such series.
(c) If an Intercreditor Agreement is applicable, upon the
occurrence and during the continuation of any Indenture Event of Default under
any Indenture, the Trustee may, to the extent it is the Controlling Party at
such time (as determined pursuant to the related Intercreditor Agreement),
direct the exercise of remedies as provided in such related Intercreditor
Agreement.
(d) If an Intercreditor Agreement is applicable, by acceptance
of its Certificate, each Certificateholder agrees that at any time after the
occurrence and during the
29
continuation of a Triggering Event, each Certificateholder of Certificates of
certain series (each, a "Potential Purchaser" and, collectively, the "Potential
Purchasers") may have certain rights to purchase the Certificates of one or more
other series, all as set forth in the Trust Supplement applicable to the
Certificates held by such Potential Purchaser. The purchase price with respect
to the Certificates of any series, and the procedure for such purchase, shall be
specified in such Trust Supplement or the applicable Intercreditor Agreement. By
acceptance of its Certificate, each Certificateholder (each, a "Selling
Certificateholder" and, collectively, the "Selling Certificateholders") of a
series that is subject to purchase by Potential Purchasers, all as set forth in
the Trust Supplement applicable to the Certificates held by the Selling
Certificateholders, agrees that, at any time after the occurrence and during the
continuance of a Triggering Event, it will, upon payment of the applicable
purchase price by one or more Potential Purchasers (upon such purchase, a
"Purchasing Certificateholder"), forthwith sell, assign, transfer and convey to
such Purchasing Certificateholder (without recourse, representation or warranty
of any kind except for its own acts) all of the right, title, interest and
obligation of such Selling Certificateholder in this Agreement, any related
Intercreditor Agreement, any related Liquidity Facility, the related Note
Documents and all Certificates of such series held by such Selling
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 Purchasing Certificateholder
shall assume all of such Selling Certificateholder's obligations under this
Agreement, any related Intercreditor Agreement, any related Liquidity Facility
and the related 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 any Selling Certificateholder to deliver any
Certificates of such series and, upon such a purchase, (i) the only rights of
the Selling Certificateholders will be to deliver the Certificates to the
Purchasing Certificateholder and receive the purchase price for such
Certificates of such series and (ii) if the Purchasing Certificateholder shall
so request, such Selling 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 Purchasing Certificateholder 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 Purchasing Certificateholder.
Section 6.02. Incidents of Sale of Equipment Notes. Upon any
sale of all or any part of the Equipment Notes held in the Trust 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
held in the Trust, 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 making such sale shall be a
sufficient discharge to any purchaser for its
purchase money, and, after paying such purchase money
and receiving
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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. In the event
that the proceeds of such sale of Equipment Notes are
less than the principal amount of the Certificates of
such series Outstanding, the Certificateholders shall
have no claim for such shortfall against the Company,
the Trustee or any other Person including the related
Owner Trustee or related Owner Participant, if any.
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 held in the
related Trust, 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 related
Intercreditor Agreement and any related Note Documents (subject to rights of the
applicable Owner Trustee or Owner Participant, if any, to cure any such failure
to pay principal of, premium, if any, or interest on any Equipment Note or to
pay Rent under any Lease in accordance with the applicable Indenture and to the
rights of the Lessee under any applicable Lease), 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.
All rights of action and of asserting claims under this
Agreement, or under any of the Certificates, may be prosecuted and enforced by
the Trustee without the possession of any of such Certificates or the production
thereof in any trial or other proceedings relative thereto, and any such action
or proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Certificateholders of the related series.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Agreement, any
Trust Supplement, any Intercreditor Agreement or any Liquidity Facility to which
the Trustee shall be a party) the Trustee shall be held to represent all the
Certificateholders of the related series, and it shall not be necessary to make
any such Certificateholders parties to any such proceedings.
Section 6.04. Control by Certificateholders. Subject to
Section 6.03 and any related 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
31
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee with respect to such Trust or
pursuant to the terms of such Intercreditor Agreement or any Liquidity Facility
to which such Trustee is a party, or exercising any trust or power conferred on
the Trustee under this Agreement or such Intercreditor Agreement or Liquidity
Facility, including any right of the Trustee as Controlling Party under such
Intercreditor Agreement or as holder of the Equipment Notes held in the related
Trust; 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;
(3) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such
Direction; and
(4) if an Indenture Event of Default under a related
Indenture shall have occurred and be continuing, such
direction shall not obligate the Trustee to vote more
than a corresponding majority of the related
Equipment Notes held by the Trust in favor of
directing any action by the related Loan Trustee with
respect to such Indenture Event of Default.
Section 6.05. Waiver of Past Defaults. Subject to any related
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 (i) may on behalf of all of the
Certificateholders of such series waive any past default or 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, Indenture Event of Default or, if applicable, the
corresponding Lease default, under any related 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 held in the
related Trust; 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 the series affected
thereby.
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Upon any such waiver, such default shall cease to exist with
respect to the Certificates of such series and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose in respect of
such series 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 Event of Default (and,
if applicable, the corresponding Lease default).
Section 6.06. Right of Certificateholders to Receive Payments
Not to Be Impaired. Anything in this Agreement (including Section 6.07) to the
contrary notwithstanding, but subject to any related 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) 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 7.03(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
shall have been given to the Trustee during such
60-day period by Certificateholders holding
Certificates of such series evidencing Fractional
Undivided Interests aggregating not less than a
majority in interest in the related Trust.
Except to the extent provided in any applicable Intercreditor
Agreement or in any applicable Trust Supplement, it is understood and intended
that no one or more of the Certificateholders of any series shall have any right
in any manner whatsoever 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
33
to obtain priority over or preference with respect to any other such
Certificateholder of such series or (iii) enforce any right under this
Agreement, except in the manner provided in this Agreement 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 right or remedy given
hereunder to the Trustee or to any of the Certificateholders of any series shall
not be exclusive of any other right or remedy or remedies, and every such right
or remedy shall be cumulative and in addition to every other right or remedy
given hereunder or now or hereafter given by statute, law, equity or otherwise.
No delay or omission by the Trustee or of any such Certificateholder in the
exercise of any right, remedy or power or in the pursuance of any remedy shall
impair any such right, power or remedy or be construed to be a waiver of any
default on the part of the applicable Owner Trustee, if any, or the Company, as
the case may be, or to be an acquiescence therein.
Section 6.09. Discontinuance of Proceedings. If the Trustee or
any Certificateholder of any Series institutes any proceeding to enforce any
right, power or remedy under the related Trust, and such proceeding is
discontinued or abandoned for any reason or is determined adversely to the
Trustee or such Certificateholder, then and in every such case the applicable
Owner Trustee, if any, and the applicable Indenture Trustee, the Trustee, the
Certificateholders of such Series and the Company shall, subject to any
determination in such proceeding, be restored to their former positions and
rights under such Trust with respect to the Trust Property and all rights,
remedies and powers of the Trustee and such Certificateholders shall continue as
if no such proceeding had been instituted.
Section 6.10. Undertaking for Costs. All parties to this
Agreement, and each Certificateholder by acceptance of a Certificate, shall be
deemed to have agreed that, in any suit for the enforcement of any right or
remedy under this Agreement, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such suit, and
may assess costs against any such party litigant, in the manner and to the
extent provided in the Trust Indenture Act or by any other applicable law;
provided, however, that neither this Section 6.10 nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities. (a) Except
during the continuance of an Event of Default in respect of a Trust, (1) the
Trustee undertakes to perform such duties in respect of such Trust as are
specifically set forth in this Agreement, the Intercreditor Agreement and the
Note Documents, and no implied covenants or obligations shall be read into such
agreements against the Trustee; and (2) in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Agreement;
but in the case of any such certificates or opinions that by
34
any provision hereof are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Agreement.
(b) In case an Event of Default in respect of a Trust has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Agreement in respect of such Trust, and use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) this Subsection (c) shall not be construed to limit
the effect of Subsection (a) of this Section 7.01;
and
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer
of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent
facts.
(d) Whether or not herein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 7.01.
Section 7.02. Notice of Defaults. As promptly as practicable
after, and in any event within 90 days after, the occurrence of any default (as
such term is defined below) hereunder known to the Trustee, the Trustee shall
transmit by mail to the Company, any related Owner Trustees, any related Owner
Participants, the related Loan Trustees and the Certificateholders holding
Certificates of the related series, in the manner and to the extent provided in
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 that, in the case of defaults not relating to the payment of money, the
Trustee shall not give such notice until the earlier of the time at which such
default becomes an Event of Default and the expiration of 60 days from the
occurrence of such default; and provided, however, that, except in the case of a
default in the payment of the principal, 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 shall
determine that the withholding of such notice is in the interests of the
Certificateholders of the related series. For the purpose of this Section 7.02
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 or a Triggering Event under any Intercreditor Agreement.
Section 7.03. Certain Rights of Trustee. Subject to the
provisions of Section 315 of the Trust Indenture Act:
35
(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 Officer's 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 Direction of any of the Certificateholders pursuant to this
Agreement or any Intercreditor Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity against the cost,
expenses and liabilities which might be incurred by it in compliance with such
Direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document;
(g) the Trustee may execute any of the trusts or powers under
this Agreement or any Intercreditor Agreement or perform any duties under this
Agreement or any Intercreditor Agreement either directly or by or through agents
or attorneys, and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
under this Agreement or any Intercreditor Agreement;
(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.
Section 7.04. Not Responsible for Recitals or Issuance of
Certificates. The recitals contained herein and in the Certificates of each
series, except the certificates of
36
authentication, shall not be taken as the statements of the Trustee, and the
Trustee assumes no responsibility for their correctness. Subject to Section
7.15, the Trustee makes no representations as to the validity or sufficiency of
this Basic Agreement, any Equipment Notes, any Intercreditor Agreement, any
Liquidity Facility to which the Trustee may be a party, the Certificates of any
series, any Trust Supplement or any Note Documents, except that the Trustee
hereby represents and warrants that this Basic Agreement has been, and each
Trust Supplement, each Certificate, each Note Purchase Agreement, each
Intercreditor Agreement and any such Liquidity Facility 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 7.05. May Hold Certificates. The Trustee, any Paying
Agent, Registrar or any of their Affiliates or any other agent, in their
respective individual or any other capacity, may become the owner or pledgee of
Certificates and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
if applicable, may otherwise deal with the Company, any Owner Trustees, any
Owner Participants or the Loan Trustees with the same rights it would have if it
were not Trustee, Paying Agent, Registrar or such other agent.
Section 7.06. Money Held in Trust. Money held by the Trustee
or the Paying Agent in trust under this Agreement 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 or in the applicable Trust Supplement.
Section 7.07. Compensation and Reimbursement. The Company
agrees:
(1) to pay, or cause to be paid, to the Trustee from time
to time such compensation for all services rendered
by it hereunder as the Company and the Trustee may
agree in writing from time to time (which
compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an
express trust); and
(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, any Intercreditor
Agreement or any Liquidity Facility to which the
Trustee may be a party (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 the
Trustee's negligence, willful misconduct or bad faith
or as may be incurred due to the Trustee's breach of
its representations and warranties set forth in
Section 7.15; and
(3) to indemnify, or cause to be indemnified, the
Trustee, solely in its individual capacity, for, and
to hold it harmless against, any loss, liability, tax
(other than any tax referred to in the next paragraph
or any tax attributable to the Trustee's compensation
for serving as such), cost or
37
expense incurred without negligence, willful
misconduct or bad faith on its part, arising out of
or in connection with the acceptance or
administration of any Trust, including the costs and
expenses of (a) defending itself against any claim or
liability in connection with the exercise or
performance of any of its powers or duties hereunder
or under any Trust Supplement or (b) contesting the
imposition of any such tax, except in each case for
any such loss, liability, tax, cost or expense
incurred by reason of the Trustee's breach of its
representations and warranties set forth in Section
7.15 or in any Trust Supplement or the Trustee's
failure to perform any of its obligations hereunder
or under any Trust Supplement. The Trustee shall
notify the Company promptly of any claim or tax for
which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel with
the consent of the Company and the Company will pay
the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made or 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. If the Trustee reimburses itself from the Trust Property of such
Trust for any such tax, it will mail a brief report within 30 days 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.
Section 7.08. Corporate Trustee Required; Eligibility. Each
Trust shall at all times have a Trustee which shall be a bank, trust company or
other financial institution organized and doing business under the laws of the
United States or any state thereof, 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 or any state or territory
thereof or the District of Columbia and having a combined capital and surplus of
at least $75,000,000). If such bank, trust company or other financial
institution or such corporation publishes reports of conditions at least
annually, pursuant to law or to the requirements of federal, state, territorial
or District of Columbia supervising or examining authority, then for the
purposes of this Section 7.08 the combined capital and surplus of such bank,
trust company or other financial institution or such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
conditions so published.
38
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.08 to act as Trustee of any
Trust, the Trustee shall resign immediately as Trustee of such Trust in the
manner and with the effect specified in Section 7.09. If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Agreement.
Section 7.09. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of a
successor Trustee of any Trust pursuant to this Article VII shall become
effective until the acceptance of appointment by the successor Trustee under
Section 7.10.
(b) The Trustee may resign at any time as Trustee of any or
all Trusts by giving prior written notice thereof to the Company, the Authorized
Agents, any 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, any 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 Direction 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, any 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(b)
of the Trust Indenture Act, if applicable, after written
request therefor by the Company or by any
Certificateholder who has been a bona fide
Certificateholder for at least six months; or
(2) the Trustee shall cease to be eligible under Section
7.08 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 such 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 itself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee of such Trust.
39
(e) If a Responsible Officer of the Trustee shall obtain
actual knowledge of an Avoidable Tax (as defined below) 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, either relocate the
administration of the Trust to another jurisdiction as described in the
definition of "Avoidable Tax" or 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. Provided that there is a corporation in a
jurisdiction where there are no Avoidable Taxes that is willing to act as
Trustee and is eligible under Section 7.08, the Company shall promptly after any
such resignation by such Trustee 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) the Trust Property of such Trust, (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
Trust were administered in a different jurisdiction in the United States or if
the Trustee were located in another state, or jurisdiction within a state,
within the United States. A tax shall not be an Avoidable Tax in respect of any
Trust if the Company or any Owner Trustee shall agree to pay, and shall pay,
such tax.
(f) If the Trustee shall resign, be removed or become
incapable of acting as Trustee of any Trust or if a vacancy shall occur in the
office of the Trustee of any Trust for any cause, the Company shall promptly
appoint a successor Trustee of such Trust. If, within one year after such
resignation, removal or incapability, or other occurrence of such vacancy, a
successor Trustee of such Trust shall be appointed by Direction 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, any related Owner Trustees,
the related Loan Trustee and the retiring Trustee, then the successor Trustee of
such Trust so appointed shall, with the approval of the Company of such
appointment, 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 by the Company as
provided above. If no successor Trustee shall have been so appointed by the
Company 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 7.10. Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute 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 Trust or Trusts shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become
40
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to such Trust or Trusts; but, on request of the Company or the
successor Trustee, such retiring Trustee shall execute and deliver an instrument
transferring to such successor Trustee all such rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all Trust Property held by such retiring Trustee in respect of such
Trusts hereunder (subject nevertheless to its lien, if any, provided for in
Section 7.07) and all books and records, or true, correct and complete copies
thereof, held by such retiring Trustee in respect of such Trusts hereunder. 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 of the rights, powers, trusts
and duties of the predecessor Trustee with respect to the Trusts as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Basic Agreement and the applicable Trust Supplements as shall be necessary to
provide for or facilitate the administration of the Trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental agreement shall constitute such Trustees as co-Trustees of the same
Trust and that each such Trustee shall be Trustee of separate Trusts.
No institution shall accept its appointment as a successor
Trustee hereunder unless at the time of such acceptance such institution shall
be qualified and eligible under this Article VII.
Section 7.11. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article VII, 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 7.12. Maintenance of Agencies. (a) With respect to
each series of Certificates, there shall at all times be maintained an office or
agency in the location set forth in Section 12.04 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 this Agreement may be served;
provided that, if it shall be necessary that the Trustee maintain an office or
agency in another location with respect
41
to the Certificates of any series (e.g., the Certificates of such series shall
be represented by Definitive Certificates and shall be listed on a national
securities exchange), the Trustee will make all reasonable efforts to establish
such an office or agency. Written notice of the location of each such other
office or agency and of any change of location thereof shall be given by the
Trustee to the Company, any Owner Trustees, the Loan Trustees (in the case of
any Owner Trustee or Loan Trustee, at its address specified in the Note
Documents or such other address as may be notified to the Trustee) 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, trust company or other financial institution organized
and doing business under the laws of the United States or any state thereof,
with a combined capital and surplus of at least $75,000,000 (or combined capital
and surplus in excess of $5,000,000, the obligations of which are fully and
unconditionally guaranteed by a corporation organized and doing business under
the laws of the United States or any state or territory thereof or the District
of Columbia, 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 other than the
Trustee shall furnish to the Trustee, at stated intervals of not more than six
months, and at such other times as the Trustee may request in writing, a copy of
the Register maintained by such Registrar.
(c) Any corporation into which any Authorized Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any Authorized
Agent shall be a party, or any corporation succeeding to the corporate trust
business of any Authorized Agent, shall be the successor of such Authorized
Agent, if such successor corporation is otherwise eligible under this Section
7.12, without the execution or filing of any paper or any further act on the
part of the parties hereto or such Authorized Agent or such successor
corporation.
(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 7.12 (when, in either case, no other Authorized Agent performing the
functions of such Authorized Agent shall have been appointed), the Company shall
promptly appoint one or more qualified successor Authorized Agents, reasonably
satisfactory to the Trustee, to perform the functions of the Authorized Agent
which has resigned or whose agency has been terminated or who shall have ceased
to be eligible under this Section 7.12. The Company shall give written notice of
any such appointment made by it to the Trustee, any related Owner Trustees and
the related Loan Trustees; and in each case the Trustee shall mail notice of
such appointment to all
42
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 such compensation for its services as the
Company and the Trustee may agree in writing from time to time and to reimburse
it for its reasonable expenses to the extent set forth in Section 7.07(2).
Section 7.13. Money for Certificate Payments to Be Held in
Trust. All moneys deposited with any Paying Agent for the purpose of any payment
on Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of this
Section 7.13. Moneys so deposited and held in trust shall constitute a separate
trust fund for the benefit of the Certificateholders with respect to which such
money was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.14. Registration of Equipment Notes in Trustee's
Name. Subject to the provisions of any Intercreditor Agreement and Section 12.03
hereof, the Trustee agrees that all Equipment Notes to be purchased by any
Trust, Specified Investments, if any, to be held by the Trustee on behalf of a
Trust and Permitted Investments, if any, to be held by the Trustee on behalf of
a Trust shall be issued in the name of the Trustee as trustee for the applicable
Trust or its nominee and held by the Trustee in trust for the benefit of the
Certificateholders of such series, or, if not so held, the Trustee or its
nominee shall be reflected as the owner of such Equipment Notes, Specified
Investments or Permitted Investments, as the case may be, in the register of the
issuer of such Equipment Notes, Specified Investments or Permitted Investments,
as the case may be. In no event shall the Trustee invest in, or hold, Equipment
Notes, Specified Investments or Permitted Investments in a manner that would
cause the Trustee not to have the ownership interest in (or a securities
entitlement with respect to) such Equipment Notes, Specified Investments or
Permitted Investments under the applicable provisions of the Uniform Commercial
Code in effect where the Trustee holds such Equipment Notes, Specified
Investments or Permitted Investments or other applicable law then in effect.
Section 7.15. Representations and Warranties of Trustee. The
Trustee hereby represents and warrants that:
(a) the Trustee is a national banking association duly
organized and validly existing 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, any
Liquidity Facility, the Certificates and the Note Purchase Agreements and has
taken all necessary action to authorize the execution,
43
delivery and performance by it of this Agreement, any Intercreditor Agreement,
any Liquidity Facility, the Certificates and the Note Purchase Agreements;
(c) the execution, delivery and performance by the Trustee of
this Agreement, any Intercreditor Agreement, any Liquidity Facility, the
Certificates and the Note Purchase Agreements (i) will not violate any provision
of any United States federal law or the law of the state of the United States
where such Trustee is located and which governs 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 or both, 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;
(d) the execution, delivery and performance by the Trustee of
this Agreement, any Intercreditor Agreement, any Liquidity Facility, the
Certificates 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 the United
States where such Trustee is located and regulating the banking and corporate
trust activities of the Trustee, other than the filing of a Statement of
Eligibility on Form T-1 in connection with the registration of any Certificates;
(e) this Agreement, any Intercreditor Agreement, any Liquidity
Facility, the Certificates and the Note Purchase Agreements have been or will be
duly executed and delivered by the Trustee and constitute or upon such execution
and delivery will constitute the legal, valid and binding agreements of the
Trustee, enforceable against it in accordance with their respective terms;
provided, however, 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; and
(f) the statements made by it in a Statement of Eligibility on
Form T-1 supplied or to be supplied to the Company in connection with the
registration of any Certificates are and will be true and accurate subject to
the qualifications set forth therein; and that such statement complies and will
comply in all material respects with the requirements of the Trust Indenture Act
and the Securities Act.
The representation and warranties set forth above shall be
deemed to be made by the Trustee on each Issuance Date, except as otherwise
provided in the applicable Trust Supplement.
Section 7.16. Withholding Taxes; Information Reporting. As to
the Certificates of any series, the Trustee, as trustee of the related grantor
trust created by this Agreement, shall exclude and withhold from each
distribution of principal, premium, if any, and interest and other amounts due
under this Agreement or under the Certificates of such series any and all
withholding taxes applicable thereto as required by law. The Trustee agrees to
act as such
44
withholding agent and, in connection therewith, whenever any present or future
taxes or similar charges are required to be withheld with respect to any amounts
payable in respect of the Certificates of such series, to withhold such amounts
and timely pay the same to the appropriate authority in the name of and on
behalf of the Certificateholders of such 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 of such series appropriate documentation showing the payment
thereof, together with such additional documentary evidence as such
Certificateholders may reasonably request from time to time. The Trustee agrees
to file any other information reports as it may be required to file under United
States law.
Section 7.17. 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 (and without right of indemnity
hereunder, including Section 7.07), 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 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 7.18. Preferential Collection of Claims. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship listed in Section 311(b) of the Trust Indenture Act. If
the Trustee shall resign or be removed as Trustee, it shall be subject to
Section 311(a) of the Trust Indenture Act to the extent provided therein.
Section 7.19. Capacity in Which Acting. The Trustee acts
hereunder and under any Trust not in its individual capacity but solely as
trustee except as expressly provided herein or in the related Trust Supplement.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and
Addresses of Certificateholders. With respect to the Certificates of each
series, the Company will furnish (or cause to be furnished) to the Trustee
within 15 days after each Record Date with respect to a Scheduled Payment (and,
in any case, at intervals of not more than six months), 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 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 7.12.
45
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 7.12 or Section 8.01, as the case may be, and the names and addresses of
Certificateholders of each series received by the Trustee in its capacity as
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.12 or Section 8.01, as the case may be, upon receipt of a
new list so furnished.
Section 8.03. Reports by Trustee. Within 60 days after May 15
of each year commencing with the first full year following the issuance of any
series of Certificates, the Trustee shall transmit to the Certificateholders of
such series, as provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of such May 15, if required by and in compliance with Section
313(a) of the Trust Indenture Act. The Trustee shall also transmit to
Certificateholders such reports, if any, as may be required pursuant to Section
313(b) of the Trust Indenture Act at the times and in the manner provided
pursuant thereto and to Section 313(c) thereof.
Section 8.04. Reports by the Company. The Company shall:
(a) file with the Trustee, within 30 days after the Company is
required to file the same with the SEC, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may from time to time by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934, as amended;
or, if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the SEC,
in accordance with rules and regulations prescribed by the SEC, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national securities
exchange as may be prescribed in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with the
rules and regulations prescribed by the SEC, such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants of the Company provided for in this Agreement, as may
be required by such rules and regulations;
(c) transmit to all Certificateholders, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, such summaries
of any information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section 8.04 as may be required by
rules and regulations prescribed by the SEC; and
(d) furnish to the Trustee, not less often than annually, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants of the Company under this
Agreement (it being understood that for purposes of this paragraph (d), such
compliance shall be determined without regard to any grace period or requirement
of notice provided under this Agreement).
46
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders. Without the consent of any Certificateholders, the Company
may (but will not be required to), and the Trustee (subject to Section 9.03)
shall, at the Company's request, at any time and from time to time, enter into
one or more agreements supplemental hereto or, if applicable, to an
Intercreditor Agreement, a Note Purchase Agreement or a Liquidity Facility, for
any of the following purposes:
(1) to provide for the formation of a Trust, the issuance
of a series of Certificates and other matters
contemplated by Section 2.01(b); or
(2) to evidence the succession of another Person to the
Company and the assumption by any such successor of
the covenants of the Company contained in this
Agreement or of the Company's obligations under any
Intercreditor Agreement, any Note Purchase Agreement
or any Liquidity Facility; or
(3) to add to the covenants of the Company for the
benefit of the Certificateholders of any series, or
to surrender any right or power conferred upon the
Company in this Agreement, any Note Purchase
Agreement, any Intercreditor Agreement or any
Liquidity Facility; or
(4) to cure any ambiguity or to correct any mistake or
inconsistency contained herein or in any related
Trust Supplement, any Intercreditor Agreement or any
Liquidity Facility; or
(5) to make or modify any other provision in regard to
matters or questions arising under this Basic
Agreement or any related Trust Supplement, any
Intercreditor Agreement or any Liquidity Facility as
the Company may deem necessary or desirable and that
will not materially adversely affect the interests of
the related Certificateholders; or
(6) to comply with any requirement of the SEC, any
applicable law, rules or regulations of any exchange
or quotation system on which the Certificates of any
series are listed or of any regulatory body; or
(7) to modify, eliminate or add to the provisions of this
Agreement, any Intercreditor Agreement or any
Liquidity Facility to such extent as shall be
necessary to continue the qualification of this
Agreement (including any supplemental agreement), any
Intercreditor Agreement or any Liquidity Facility
under the Trust Indenture Act or under any similar
Federal statute hereafter enacted, and to add to this
Agreement, any Intercreditor Agreement or any
Liquidity Facility 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
47
effect at the date as of which this Basic Agreement
was executed or any corresponding provision in any
similar Federal statute hereafter enacted; or
(8) to evidence and provide for the acceptance of
appointment by a successor Trustee under this
Agreement, any Intercreditor Agreement, any Note
Purchase Agreement, any Indenture or any Liquidity
Facility with respect to one or more Trusts and to
add to or change any of the provisions of this
Agreement, any Intercreditor Agreement or any
Liquidity Facility as shall be necessary to provide
for or facilitate the administration of the Trust
hereunder and thereunder by more than one Trustee,
pursuant to the requirements of Section 7.10; or
(9) to provide the information required under Section
7.12 and Section 12.05 as to the Trustee; or
(10) to add to or change any of the provisions of this
Agreement or any Trust Supplement to such extent as
shall be necessary to facilitate the issuance of
Certificates in bearer form or to facilitate or
provide for the issuance of Certificates in global
form in addition to or in place of Certificates in
certificated form; or
(11) to provide for the delivery of agreements
supplemental hereto or the Certificates of any series
in or by any means of any computerized, electronic or
other medium, including without limitation by
computer diskette; or
(12) to correct or supplement the description of any
property constituting property of such Trust; or
(13) to modify, eliminate or add to the provisions of this
Basic Agreement or any Trust Supplement in order to
reflect the substitution of a Substitute Aircraft for
any aircraft; or
(14) to make any other amendments or modifications hereto,
provided that such amendments or modifications shall
only apply to Certificates of one or more series to
be thereafter issued;
provided, however, that no such supplemental agreement shall cause any Trust to
become an association taxable as a corporation for United States federal income
tax purposes.
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 such series (including consents obtained in connection
with a consent solicitation, tender offer or exchange offer for the
Certificates) evidencing Fractional Undivided Interests aggregating not less
than a majority in interest in such Trust, by Direction of said
Certificateholders delivered to the Company and the Trustee, the Company may
(with the consent of the Owner Trustees, if any, relating to such Certificates,
48
which consent shall not be unreasonably withheld), but shall not be obligated
to, 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 Liquidity Facility to the extent applicable
to such Certificateholders or of modifying in any manner the rights and
obligations of such Certificateholders under this Agreement, any Intercreditor
Agreement or any Liquidity Facility; provided, however, that no such 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 on 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
(other than as provided for in such Certificate), 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) except as permitted by this Agreement or the
applicable Intercreditor Agreement or Liquidity
Facility, permit the disposition of any Equipment
Note included in the Trust Property of such Trust 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
relevant Intercreditor Agreement, if any, in a manner
materially adverse to the interests of the
Certificateholders of any series; or
(4) modify any of the provisions of this Section 9.02
with respect to such series of Certificates, except
to increase the specified percentage of the aggregate
Fractional Undivided Interests of such Trust that is
required for any supplemental agreement as set forth
therein, or to provide that certain other provisions
of this Agreement cannot be modified or waived
without the consent of the Certificateholder of each
Certificate of such series affected thereby; or
(5) cause any Trust to become an association taxable as a
corporation for United States federal income tax
purposes.
It shall not be necessary for any Direction of such
Certificateholders under this Section 9.02 to approve the particular form of any
proposed supplemental agreement, but it shall be sufficient if such Direction
shall approve the substance thereof.
Section 9.03. Documents Affecting Immunity or Indemnity. If in
the opinion of the Trustee any document required to be executed by it pursuant
to the terms of Section 9.01 or 9.02 affects any interest, right, duty, immunity
or indemnity in favor of the Trustee under this
49
Basic Agreement or any Trust Supplement, the Trustee may in its discretion
decline to execute such document.
Section 9.04. Execution of Supplemental Agreements. In
executing, or accepting the additional trusts created by, any supplemental
agreement permitted by this Article IX or the modifications thereby of the
trusts created by this Agreement, the Trustee shall be entitled to receive, 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 agreement supplemental to this Agreement under this Article IX,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes, and every
Certificateholder 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 IX shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.07. Reference in Certificates to Supplemental
Agreements. Certificates of each series authenticated and delivered after the
execution of any supplemental agreement applicable to such series pursuant to
this Article IX may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental agreement; and, in such case, suitable
notation may be made upon Outstanding Certificates of such series after proper
presentation and demand.
ARTICLE X
AMENDMENTS TO INDENTURES AND OTHER NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indentures and
Other Note Documents. In the event that the Trustee, as holder (or beneficial
owner through the Subordination Agent) of any Equipment Notes (or as a
prospective purchaser of any Postponed Notes) in trust for the benefit of the
Certificateholders of any series or as Controlling Party under an Intercreditor
Agreement, receives (directly or indirectly through the Subordination Agent) a
request for a consent to any amendment, modification, waiver or supplement under
any Indenture or other Note Document, subject to Section 9.01 hereof, 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 the
Certificateholders of such series a Direction as to (a) whether or not to take
or refrain from taking (or direct the Subordination Agent to take or refrain
from taking) any action which a holder of (or, with respect to Postponed Notes,
a prospective purchaser of) such Equipment Note has the option to direct, (b)
whether or not to give or execute (or direct the Subordination Agent to give or
execute) any waivers, consents, amendments, modifications or supplements as a
holder of (or, with respect to Postponed Notes, a prospective
50
purchaser of) such Equipment Note or a Controlling Party and (c) how to vote (or
direct the Subordination Agent to vote) any Equipment Note (or, with respect to
a Postponed Note, its commitment to acquire such Postponed Note) if a vote has
been called for with respect thereto. Provided such a request for
Certificateholder Direction shall have been made, in directing any action or
casting any vote or giving any consent as the holder of any Equipment Note (or
in directing the Subordination Agent in any of the foregoing), (i) other than as
Controlling Party, the Trustee shall vote for or give consent to any such action
with respect to such Equipment Note (or Postponed Note) in the same proportion
as that of (A) the aggregate face amount of all Certificates actually voted in
favor of or for giving consent to such action by such Direction of
Certificateholders to (B) the aggregate face amount of all Outstanding
Certificates and (ii) as Controlling Party, the Trustee shall vote as directed
in such Certificateholder Direction by the Certificateholders of such series
evidencing a Fractional Undivided Interest aggregating not less than a majority
in interest in the Trust. For purposes of the immediately preceding sentence, a
Certificate shall have been "actually voted" if the Holder of such Certificate
has delivered to the Trustee an instrument evidencing such Holder's consent to
such Direction prior to one 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, with
respect to the Certificates of any series, in its own discretion and at its own
direction, consent and notify the relevant Loan Trustee of such consent (or
direct the Subordination Agent to consent and notify the Loan Trustee of such
consent) to any amendment, modification, waiver or supplement under any related
Indenture or any other related Note Document if an Event of Default hereunder
shall have occurred and be continuing or if such amendment, modification, waiver
or supplement will not materially adversely affect the interests of the
Certificateholders of such series.
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01. Termination of the Trusts. In respect of each
Trust created by the Basic Agreement as supplemented by a related Trust
Supplement, the respective obligations and responsibilities of the Company and
the Trustee with respect to such Trust shall terminate upon the distribution to
all Holders of 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 such Trust;
provided, however, that in no event shall such Trust continue beyond the final
expiration date determined as provided in such Trust Supplement.
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 60 days and not later than 15
days preceding such final distribution specifying (i) 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
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therein specified, (ii) the amount of any such proposed final payment, and (iii)
that the Record Date otherwise applicable to such Regular Distribution Date (or
Special Distribution Date, as the case may be) is not applicable, payments being
made only upon presentation and surrender of the Certificates of such series at
the office or agency of the Trustee therein specified. The Trustee shall give
such notice to the Registrar at the time such notice is given to
Certificateholders of such series. Upon presentation and surrender of the
Certificates of such series in accordance with such notice, the Trustee shall
cause to be distributed to Certificateholders of such series amounts
distributable on such Regular Distribution Date (or Special Distribution Date,
as the case may be) pursuant to Section 4.02.
In the event that all of the Certificateholders of such series
shall not surrender their Certificates for cancellation within six months after
the date specified in the above-mentioned written notice, the Trustee shall give
a second written notice to the remaining Certificateholders of such series to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. No additional interest shall accrue on the Certificates of
such series after any Regular Distribution Date (or Special Distribution Date,
as the case may be) of such series, as specified in the first written notice. In
the event that any money held by the Trustee for the payment of distributions on
the Certificates of such series shall remain unclaimed for two years (or such
lesser time as the Trustee shall be satisfied, after 60 days' notice from the
Company, is one month prior to the escheat period provided under applicable law)
after the final distribution date with respect thereto, the Trustee shall pay to
each Loan Trustee the appropriate amount of money relating to such Loan Trustee
and shall give written notice thereof to any related Owner Trustees and the
Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders. (a)
The insolvency, 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. No Certificateholder of any
series shall be entitled to revoke the related Trust.
(b) No transfer, by operation of law or otherwise, of any
Certificate or other right, title and interest of any Certificateholder in and
to the applicable Trust Property or under the related Trust shall operate to
terminate the Trust or entitle such Certificateholder or any successor or
transferee of such Certificateholder to an accounting or to the transfer to it
of legal title to any part of such Trust Property.
Section 12.02. 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
52
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 12.03. 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 may 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 12.04. Notices. (a) Unless otherwise expressly
specified or permitted by the terms hereof or in the applicable Trust Supplement
with respect to any Trust created thereby, all notices required or permitted
under the terms and provisions of this Basic Agreement or such Trust Supplement
shall be in English and in writing, and any such notice may be given by U.S.
mail, courier service or facsimile or any other customary means of
communication, and any such notice shall be effective when delivered (or, if
mailed, three Business Days after deposit, postage prepaid, in the first class
U.S. mail and, if delivered by facsimile, upon completion of transmission and
confirmation by the sender (by a telephone call to a representative of the
recipient or by machine confirmation) that the transmission was received),
if to the Company, to:
American Airlines, Inc.
0000 Xxxx Xxxxxx Xxxx.
Maildrop 5662
Xxxx Xxxxx, Xxxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
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 Trust Division
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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(b) The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Certificateholders of any
series shall be mailed by first-class mail to the addresses for
Certificateholders of such series shown on the Register kept by the Registrar
and to addresses filed with the Trustee for Certificate Owners of such series.
Failure so to mail a notice or communication or any defect in such notice or
communication shall not affect its sufficiency with respect to other
Certificateholders or Certificate Owners of such series.
(d) If a notice or communication is mailed in the manner
provided above, it is conclusively presumed to have been duly given, whether or
not the addressee receives it.
(e) If the Company mails a notice or communication to the
Certificateholders of such series, it shall mail a copy to the Trustee and to
each Paying Agent for such series at the same time.
(f) The Trustee shall promptly furnish the Company with a copy
of any demand, notice or written communication received by the Trustee hereunder
from any Certificateholder, Certificate Owner, Owner Trustee, Loan Trustee,
Liquidity Provider or Subordination Agent.
Section 12.05. Governing Law. THIS BASIC AGREEMENT HAS BEEN
DELIVERED IN THE STATE OF
NEW YORK AND THIS BASIC AGREEMENT, TOGETHER WITH ALL
TRUST SUPPLEMENTS AND CERTIFICATES, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 12.06. Severability of Provisions. Any provision of
this Agreement which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 12.07. Trust Indenture Act Controls. Upon the
occurrence of any Registration Event, this Agreement shall become subject to the
provisions of the Trust Indenture Act and shall, to the extent applicable, be
governed by such provisions. From and after the occurrence of any Registration
Event, if any provision of this Agreement limits, qualifies or conflicts with
another provision which is required to be included in this Agreement by the
Trust Indenture Act, the required provision shall control. If any provision of
this Agreement modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Agreement as so modified, or to be excluded, as the case may be,
whether or not such provision of this Agreement refers expressly to such
provision of the Trust Indenture Act.
54
Section 12.08. 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 12.09. Successors and Assigns. All covenants,
agreements, representations and warranties in this Agreement by the Trustee and
the Company shall bind and, to the extent permitted hereby, shall inure to the
benefit of and be enforceable by their respective successors and assigns,
whether so expressed or not. Any request, notice, direction, consent, waiver or
other instrument or action by any Certificateholder shall bind the successors
and assigns of such Certificateholder.
Section 12.10. 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, except as provided expressly
herein.
Section 12.11. Legal Holidays. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate of
any series shall not be a Business Day with respect to such series, then
(notwithstanding any other provision of this Agreement) payment need not be made
on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on such Regular Distribution Date or Special
Distribution Date, and no interest shall accrue during the intervening period.
Section 12.12. 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 12.13. 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 312(b) of the Trust Indenture Act. The Company, the Trustee
and any and all other persons benefitted by this Agreement shall have the
protection afforded by Section 312(c) of the Trust Indenture Act.
Section 12.14. Normal Commercial Relations. Anything contained
in this Agreement to the contrary notwithstanding, the Trustee and any
Certificateholder, or any bank or other affiliate of any such party, may conduct
any banking or other financial transactions, and have banking or other
commercial relationships, with the Company fully to the same extent as if this
Agreement were not in effect, including without limitation the making of loans
or other extensions of credit to the Company for any purpose whatsoever, whether
related to any of the transactions contemplated hereby or otherwise.
Section 12.15. No Recourse Against Others. No past, present or
future director, officer, employee, agent, member, manager, trustee or
stockholder, as such, of the Company or any successor Person shall have any
liability for any obligations of the Company or any
55
successor Person, either directly or through the Company or any successor
Person, under the Certificates or this Agreement or for any claim based on, in
respect of or by reason of such obligations or their creation, whether by virtue
of any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise. By
accepting a Certificate, each Certificateholder agrees to the provisions of this
Section 12.16 and waives and releases all such liability. Such waiver and
release shall be part of the consideration for the issue of the Certificates.
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IN WITNESS WHEREOF, the parties have caused this Pass
Through
Trust Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first written above.
AMERICAN AIRLINES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director,
Corporate Finance and Banking
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION,
as Trustee
By: /s/ Alison Della Bella
Name: Alison Della Bella
Title: Assistant Vice President
57
