EXHIBIT 4.7
EXECUTION COPY
AMTRAN, INC.
AMERICAN TRANS AIR, INC.
and
WILMINGTON TRUST COMPANY
as Trustee
PASS THROUGH TRUST AGREEMENT
Dated as of February 15, 2000
American Trans Air 2000-IC-O Pass Through Trust
9.644% Initial American Trans Air 2000-IC-O Pass Through Certificates
9.644% Exchange American Trans Air 2000-IC-O Pass Through Certificates
Reconciliation and tie between America Trans Air Pass Through Trust Agreement,
Series 2000-1C-O dated as of February 15, 2000, and the Trust Indenture Act of
1939. This reconciliation does not constitute part of the Pass Through Trust
Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
------------------- -----------------
310(a)(1) 7.08
(a)(2) 7.08
312(a) 3.05; 8.01; 8.02
313(a) 7.06; 8.03
314(a) 8.04(a),(c) & (d)
(a)(4) 8.04(e)
(c)(1) 1.02
(c)(2) 1.02
(d)(1) 7.13; 11.01
(d)(2) 7.13; 11.01
(d)(3) 2.01
(e) 1.02
315(b) 7.02
316(a)(last sentence) 1.04(c)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(e)
317(a)(1) 6.03
(b) 7.13
318(a) 12.05
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions................................................. 2
Section 1.02. Compliance Certificates and Opinions........................ 12
Section 1.03. Form of Documents Delivered to Trustee...................... 13
Section 1.04. Directions of Certificateholders............................ 13
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF EQUIPMENT NOTES
Section 2.01. Issuance of Certificates; Acquisition of Equipment Notes.... 14
Section 2.02. Withdrawal of Deposits...................................... 15
Section 2.03. Acceptance by Trustee....................................... 15
Exhibit A - Form of Certificate
Exhibit B - Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Regulation S
Exhibit C - Form of Certificate to be Delivered in Connection with
Transfers to Non-QIB Accredited Investors
Exhibit D - Form of Assignment and Assumption Agreement
Exhibit E - Form of Certificate to be Delivered in Connection with
Transfers to QIBs
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This PASS THROUGH TRUST AGREEMENT, dated as of February 15, 2000,
among AMTRAN, INC., an Indiana corporation (the "Guarantor"), AMERICAN TRANS
AIR, INC., an Indiana corporation (the "Company"), and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as Trustee, is made with respect to
the formation of the American Trans Air 2000-1C-O Pass Through Trust, and the
issuance of 9.644% American Trans Air 2000-1C-O Pass Through Certificates
representing fractional undivided interests in the Trust.
WITNESSETH:
WHEREAS, the Company has obtained commitments from The Boeing
Company for the delivery of certain Aircraft;
WHEREAS, the Company intends to finance the acquisition of each such
Aircraft either (i) through separate leveraged lease transactions in which the
Company will lease such aircraft (collectively, the "Leased Aircraft") or (ii)
through separate secured loan transactions in which the Company will own such
Aircraft (collectively, the "Owned Aircraft");
WHEREAS, in the case of each Leased Aircraft, each Owner Trustee,
acting on behalf of the corresponding Owner Participant, will issue pursuant
to an Indenture, on a non-recourse basis, two series of Equipment Notes in
order to finance a portion of the purchase price of each such Leased Aircraft;
WHEREAS, in the case of each Owned Aircraft, the Company, will issue
pursuant to an Indenture, on a recourse basis, two series of Equipment Notes
to finance a portion of the purchase price of each such Owned Aircraft;
WHEREAS, the Trustee, upon execution and delivery of this Agreement,
hereby declares the creation of this Trust (the "2000-1C-O Trust") for the
benefit of the Certificateholders, and the initial Certificateholders, as the
grantors of the 2000-1C-O Trust, by their respective acceptances of the
Certificates, join in the creation of this 2000- 1C-O Trust with the Trustee;
WHEREAS, except for those Certificates to which an Escrow Receipt
has been affixed, all Certificates to be issued by the Trust will evidence
fractional undivided interests in the Trust and will convey no rights,
benefits or interests in respect of any property other than the Trust
Property;
WHEREAS, the Escrow Agent and the Initial Purchasers have
contemporaneously herewith entered into an Escrow Agreement with the Escrow
Paying Agent pursuant to which the Initial Purchasers have delivered to the
Escrow Agent the proceeds from the sale of the Certificates and have
irrevocably instructed the Escrow Agent to withdraw and pay funds from such
proceeds upon request and proper certification by the Trustee to purchase
Equipment Notes at the times at which the Aircraft are delivered as
contemplated by the Note Purchase Agreement from time to time prior to the
Delivery Period Termination Date (other than the delivery of an Aircraft on
the Issuance Date, if applicable);
WHEREAS, the Escrow Agent on behalf of the Certificateholders has
contemporaneously herewith entered into a Deposit Agreement with the
Depositary under
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which the Deposits referred to therein will be made and from which the Escrow
Agent will withdraw funds to allow the Trustee to purchase Equipment Notes
from time to time prior to the Delivery Period Termination Date (other than
with respect to Equipment Notes relating to an Aircraft delivered on the
Issuance Date, if applicable);
WHEREAS, pursuant to the terms and conditions of this Agreement and
the Note Purchase Agreement, upon or shortly following the delivery of an
Aircraft (other than delivery of an Aircraft on or prior to the Issuance Date,
if applicable), the Trustee on behalf of the Trust, using funds withdrawn
pursuant to the Escrow Agreement, shall (subject to certain conditions)
purchase an Equipment Note having the same interest rate as, and final
maturity date not later than the final Regular Distribution Date of, the
Certificates issued hereunder and shall hold such Equipment Note in trust for
the benefit of the Certificateholders;
WHEREAS, pursuant to the terms and conditions of this Agreement and
the Note Purchase Agreement, upon the delivery of an Aircraft on the Issuance
Date, if applicable, the Trustee on behalf of the Trust, using funds from the
proceeds of the sale of the Certificates, shall (subject to certain
conditions) purchase an Equipment Note having the same interest rate as, and
final maturity date not later than the final Regular Distribution Date of, the
Certificates issued hereunder and shall hold such Equipment Note in trust for
the benefit of the Certificateholders;
WHEREAS, all of the conditions and requirements necessary to make
this Agreement, when duly executed and delivered, a valid, binding and legal
instrument, enforceable in accordance with its terms and for the purposes
herein expressed, have been done, performed and fulfilled, and the execution
and delivery of this Agreement in the form and with the terms hereof have been
in all respects duly authorized;
WHEREAS, to facilitate the sale of Equipment Notes to, and the
purchase of Equipment Notes by, the Trustee on behalf of the 2000-1C-O Trust,
(i) the Company has duly authorized the execution and delivery of this
Agreement 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
pursuant hereto, and as the "obligor", as such term is defined in and solely
for purposes of the Trust Indenture Act of 1939, as amended, and (ii) the
Guarantor have each duly authorized the execution and delivery of this
Agreement with respect to all such Certificates and are undertaking to perform
certain administrative and ministerial duties hereunder and are also
undertaking to pay the fees and expenses of the Trustee; and
WHEREAS, upon issuance of the Exchange Certificates, if any, or the
effectiveness of the Shelf Registration Statement, this Agreement, as amended
or supplemented from time to time, will be subject to the provisions of the
Trust Indenture Act of 1939, and shall, to the extent applicable, be governed
by such provisions;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms used herein that are defined in this Article have the
meanings assigned to them in this Article, and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference herein, have the meanings
assigned to them therein;
(3) all references in this Agreement to designated "Articles",
"Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this Agreement;
(4) the words "herein", "hereof' and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision; and
(5) unless the context otherwise requires, whenever the words
"including", "include" or "includes" are used herein, it shall be deemed
to be followed by the phrase "without limitation".
Accountants: Has the meaning specified in Section 7.15(b).
Affiliate: With respect to any specified Person, means any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
Agent Members: Has the meaning specified in Section 3.05(a).
Aircraft: Means each of the Aircraft or Substitute Aircraft in
respect of which a Participation Agreement is entered into in accordance with
the Note Purchase Agreement.
Ambac: Means Ambac Assurance Corporation, in its capacity as the
Policy Provider as specified in the Intercreditor Agreement.
Applicable Delivery Date: Has the meaning specified in Section
2.01(b).
Applicable Participation Agreement: Has the meaning specified in
Section 2.01(b).
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Assignment and Assumption Agreement: Means the assignment and
assumption agreement substantially in the form of Exhibit D hereto executed
and delivered in accordance with Section 11.01.
Authorized Agent: Means any Paying Agent or Registrar for the
Certificates.
Avoidable Tax: Has the meaning specified in Section 7.08(e) hereof.
Book-Entry Certificates: With respect to the Certificates, means a
beneficial interest in the Certificates, ownership and transfers of which
shall be made through book entries as described in Section 3.04.
Business Day: Means any day other than a Saturday, a Sunday or a day
on which commercial banks are required or authorized to close in Indianapolis,
Indiana or New York, New York and, so long as any such Certificate is
outstanding, the city and state in which the Trustee or any related Loan
Trustee maintains its Corporate Trust Office or receives and disburses funds.
Certificate: Means any one of the Initial Certificates or Exchange
Certificates and any such Initial Certificates or Exchange Certificates issued
in exchange therefore or replacement thereof pursuant to this Agreement.
Certificate Account: Means the account or accounts created and
maintained pursuant to Section 4.01(a).
Certificateholder or Holder: Means the Person in whose name a
Certificate is registered in the Register.
Class D Certificateholder: Means, at any time, any holder of one or
more pass through certificates issued by the American Trans Air Pass Through
Trust, Series 2000-1D, if and when established.
Clearing Agency: Means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
Clearing Agency Participant: Means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects, directly or indirectly, book-entry transfers and pledges of
securities deposited with the Clearing Agency.
Code: Means the Internal Revenue Code of 1986, as amended.
Company: Means American Trans Air, Inc., an Indiana corporation, or
its successor in interest pursuant to Section 5.02.
Controlling Party: Has the meaning specified in the Intercreditor
Agreement.
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Corporate Trust Office: With respect to the Trustee or any Loan
Trustee, means the office of such trustee in the city at which at any
particular time its corporate trust business shall be principally
administered.
Cut-off Date: Means the earlier of (a) the Delivery Period
Termination Date and (b) the date on which a Triggering Event occurs.
Delivery Date: Has the meaning specified in Annex A to the Note
Purchase Agreement.
Delivery Notice: Has the meaning specified in Section 1(b) of the
Note Purchase Agreement.
Delivery Period Termination Date: Has the meaning specified in Annex
A to the Note Purchase Agreement.
Deposit Agreement: Means the Deposit Agreement (Class C) dated as of
February 15, 2000 relating to the Certificates, between the Depositary and the
Escrow Agent, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with its terms.
Depositary: Means Citibank, N.A., a national banking association.
Deposits: Has the meaning specified in the Deposit Agreement.
Direction: Has the meaning specified in Section 1.04(a).
Distribution Date: Means each Regular Distribution Date and each
Special Distribution Date.
DTC: Means The Depository Trust Company, its nominees and their
respective successors.
Equipment Note: Means the "Secured Certificates" as defined in the
Indentures.
ERISA: Means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor federal statute.
Escrow Agent: Means, initially, First Security Bank, National
Association, and any replacement or successor therefor appointed in accordance
with the Escrow Agreement.
Escrow Agreement: Means the Escrow and Paying Agent Agreement (Class
C) dated as of February 15, 2000 relating to the Certificates, among the
Escrow Agent, the Escrow Paying Agent, the Trustee and the Initial Purchasers,
as the same may be amended, supplemented or otherwise modified from time to
time in accordance with its terms.
Escrow Paying Agent: Means the Person acting as paying agent under
the Escrow Agreement.
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Escrow Receipt: Means the receipt substantially in the form annexed
to the Escrow Agreement representing a fractional undivided interest in the
funds held in escrow thereunder.
Euroclear: Means the Euroclear System.
Event of Default: Means the occurrence of an Indenture Default under
any Indenture pursuant to which Equipment Notes held by the Trust were issued.
Exchange Act: Has the meaning specified in Section 5.03.
Exchange Certificates: Means the pass through certificates
substantially in the form of Exhibit A hereto issued in exchange for the
Initial Certificates pursuant to the Registration Rights Agreement and
authenticated hereunder.
Exchange Offer: Means the exchange offer which may be made pursuant
to the Registration Rights Agreement to exchange Initial Certificates for
Exchange Certificates.
Exchange Offer Registration Statement: Means the registration
statement that, pursuant to the Registration Rights Agreement, is filed by the
Company with the SEC with respect to the exchange of Initial Certificates for
Exchange Certificates.
FAA: Has the meaning specified in Section 5.02(a).
Final Withdrawal: Has the meaning specified in the Escrow Agreement.
Final Withdrawal Date: Has the meaning specified in the Escrow
Agreement.
Final Withdrawal Notice: Has the meaning specified in Section 2.03.
Fractional Undivided Interest: Means the fractional undivided
interest in the Trust that is evidenced by a Certificate.
Global Certificates: Has the meaning assigned to such term in
Section 3.01(d).
Global Exchange Certificate: Has the meaning specified in Section
3.01(h).
Guarantor: Means Amtran, Inc., an Indiana corporation, or its
successor in interest.
Indenture: Means each of the seven separate trust indenture and
mortgage agreements relating to the Aircraft, each entered into pursuant to
the related Participation Agreement, in each case as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
Indenture Default: With respect to any Indenture, means any Event of
Default (as such term is defined in such Indenture).
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Initial Certificates: Means the certificates issued and
authenticated hereunder substantially in the form of Exhibit A hereto other
than the Exchange Certificates.
Initial Purchasers: Means Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxx Xxxxxxx
& Co. Incorporated, Chase Securities Inc. and Banc One Capital Markets, Inc.
Initial Regular Distribution Date: Means the first Regular
Distribution Date on which a Scheduled Payment is to be made.
Institutional Accredited Investor: Means an institutional investor
that is an "accredited investor" within the meaning set forth in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act.
Intercreditor Agreement: Means the Intercreditor Agreement dated
February 15, 2000 among the Trustee, the Other Trustees, the Liquidity
Provider, the liquidity providers, if any, relating to the Certificates issued
under (and as defined in) the Other Pass Through Trust Agreements, the Policy
Provider and Wilmington Trust Company, as Subordination Agent thereunder, as
amended, supplemented or otherwise modified from time to time in accordance
with its terms.
Issuance Date: Means the date of the issuance of the Initial
Certificates.
Lease: Means, with respect to each Leased Aircraft, the lease
between an Owner Trustee, as the lessor, and the Company, as the lessee,
referred to in the related Indenture, as each such lease may be amended,
supplemented or otherwise modified in accordance with its terms.
Leased Aircraft: Has the meaning specified in the second recital to
this Agreement.
Letter of Representations: Means the agreement dated the Issuance
Date among the Company, the Trustee and the initial Clearing Agency.
Liquidity Facility: Means the Revolving Credit Agreement (2000-1C)
dated February 15, 2000 relating to the Certificates between the Liquidity
Provider and the Subordination Agent, as amended, replaced, supplemented or
otherwise modified from time to time in accordance with its terms and the
terms of the Intercreditor Agreement.
Liquidity Provider: Means, initially, Citibank, N.A., and any
replacement or successor therefor appointed in accordance with the Liquidity
Facility and the Intercreditor Agreement.
Loan Trustee: With respect to any Equipment Note or the Indenture
applicable thereto, means the bank or trust company designated as loan or
indenture trustee under such Indenture, not in its individual capacity but
solely as trustee; and any successor to such Loan Trustee as such trustee; and
Loan Trustees means all of the Loan Trustees under the Indentures.
Non-U.S. Person: Means a Person that is not a U.S. Person as defined
in Regulation S.
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Note Documents: With respect to any Equipment Note, means the
related Indenture, Lease (if the related Aircraft is leased to the Company)
and Participation Agreement.
Note Purchase Agreement: Means the Note Purchase Agreement dated as
of February 15, 2000 among the Trustee, the Other Trustees, the Company, the
Escrow Agent, the Escrow Paying Agent and the Subordination Agent, providing
for, among other things, the purchase of Equipment Notes by the Trustee on
behalf of the Trust, as the same may be amended, supplemented or otherwise
modified from time to time, in accordance with its terms.
Notice of Purchase Withdrawal: Has the meaning specified in the
Deposit Agreement.
Offering Memorandum: Means the Offering Memorandum dated February 8,
2000 relating to the offering of the Certificates and the certificates issued
under the Other Pass Through Trust Agreements.
Officer's Certificate: Means a certificate signed (a) in the case of
the Guarantor or the Company, by (i) the President or any Executive Vice
President or Senior Vice President of the Guarantor or the Company,
respectively, signing alone or (ii) any Vice President of the Guarantor or the
Company signing together with the Secretary, the Assistant Secretary, the
Treasurer or any Assistant Treasurer of the Guarantor or the Company,
respectively, or (b) in the case of the Trustee or an Owner Trustee or a Loan
Trustee, a Responsible Officer of the Trustee or such Owner Trustee or such
Loan Trustee, as the case may be.
Offshore Global Certificates: Has the meaning assigned to such term
in Section 3.01(d).
Offshore Physical Certificates: Has the meaning assigned to such
term in Section 3.01(e).
Opinion of Counsel: Means a written opinion of legal counsel who (a)
in the case of counsel for the Guarantor or the Company, may be (i) a senior
attorney in rank of the officers of the Guarantor or the Company a principal
duty of which is furnishing advice as to legal matters or (ii) such other
counsel designated by the Guarantor or the Company and reasonably acceptable
to the Trustee and (b) in the case of any Owner Trustee or any Loan Trustee,
may be such counsel as may be designated by any of them whether or not such
counsel is an employee of any of them, and who shall be reasonably acceptable
to the Trustee.
Other Pass Through Trust Agreement: Means the American Trans Air
2000-1G-O Pass Through Trust Agreement relating to the American Trans Air
2000-1G- O Pass Through Trust, dated the date hereof.
Other Trust: Means the American Trans Air 2000-1G-O Pass Through
Trust.
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Other Trustee: Means the trustee under the Other Pass Through Trust
Agreement, and any successor or other trustee appointed as provided therein.
Outstanding: With respect to Certificates, means, as of the date of
determination, all Certificates theretofore authenticated and delivered under
this Agreement, except:
(i) Certificates theretofore canceled by the Registrar or delivered
to the Trustee or the Registrar for cancellation;
(ii) Certificates for which money in the full amount required to
make the final distribution with respect to such Certificates pursuant to
Section 11.01 hereof has been theretofore deposited with the Trustee in
trust for the Holders of such Certificates as provided in Section 4.01
pending distribution of such money to such Certificateholders pursuant to
payment of such final distribution; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this
Agreement.
Owned Aircraft: Has the meaning specified in the second recital to
this Agreement.
Owner Participant: With respect to any Equipment Note, means the
"Owner Participant" as referred to in the Indenture pursuant to which such
Equipment Note is issued and any permitted successor or assign of such Owner
Participant; and Owner Participants at any time of determination means all of
the Owner Participants thus referred to in the Indentures.
Owner Trustee: With respect to any Equipment Note relating to a
Leased Aircraft, means the "Owner Trustee", as referred to in the Indenture
pursuant to which such Equipment Note is issued, not in its individual
capacity but solely as trustee; and Owner Trustees means all of the Owner
Trustees party to any of the Indentures.
Participation Agreement: Means each Participation Agreement to be
entered into by the Trustee and the Other Trustees pursuant to the Note
Purchase Agreement, as the same may be amended, supplemented or otherwise
modified in accordance with its terms; and Participation Agreements means all
such agreements.
Paying Agent: Means the paying agent maintained and appointed for
the Certificates pursuant to Section 7.11.
Permitted Investments: Means obligations of the United States of
America or agencies or instrumentalities thereof for the payment of which the
full faith and credit of the United States of America is pledged, maturing in
not more than 60 days after the acquisition thereof or such lesser time as is
required for the distribution of any Special Payments on a Special
Distribution Date.
Person: Means any person, including any individual, corporation,
limited liability company, partnership, joint venture, association, joint
stock company, trust, trustee, unincorporated organization, or government or
any agency or political subdivision thereof.
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Physical Certificates: Has the meaning specified in Section 3.01(e).
Policy: Has the meaning specified in the Intercreditor Agreement.
Policy Provider Agreement: Has the meaning specified in the
Intercreditor Agreement.
Policy Provider Default: Has the meaning specified in the
Intercreditor Agreement.
Pool Balance: Means, as of any date, (i) the original aggregate face
amount of the Certificates less (ii) the aggregate amount of all payments made
in respect of such Certificates other than payments made in respect of
interest or premium thereon or reimbursement of any costs or expenses incurred
in connection therewith less (iii) the aggregate amount of unused Deposits
distributed as a Final Withdrawal other than payments in respect of interest
or premium thereon. The Pool Balance as of any Distribution Date shall be
computed after giving effect to the payment of principal, if any, on the
Equipment Notes or other Trust Property held in the Trust and the distribution
thereof to be made on such Distribution Date and the distribution of the Final
Withdrawal to be made on such Distribution Date.
Pool Factor: Means, as of any date, the quotient (rounded to the
seventh decimal place) computed by dividing (i) the Pool Balance as at such
date by (ii) the original aggregate face amount of the Certificates. The Pool
Factor as of any Distribution Date shall be computed after giving effect to
the payment of principal, if any, on the Equipment Notes or other Trust
Property and the distribution thereof to be made on such Distribution Date and
the distribution of the Final Withdrawal to be made on such Distribution Date.
Private Placement Legend: Has the meaning specified in Section 3.02.
PTC Event of Default: Means any failure to pay within 10 Business
Days of the due date thereof: (i) the outstanding Pool Balance on the Final
Legal Distribution Date or (ii) interest due on the Certificates on any
Distribution Date (unless the Subordination Agent shall have made an Interest
Drawing (as defined in the Intercreditor Agreement), a withdrawal or
withdrawals from a cash collateral account pursuant to Section 3.6(f) of the
Intercreditor Agreement, with respect thereto in an amount sufficient to pay
such interest (or such Pool Balance, as the case may be) and shall have
distributed such amount to the Trustee entitled thereto).
Purchase Agreement: Means the Purchase Agreement dated February 8,
2000 among the Initial Purchasers, the Company, the Guarantor and the
Depositary, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with its terms.
QIB: Means a qualified institutional buyer as defined in Rule 144A.
Record Date: Means (i) for Scheduled Payments to be distributed on
any Regular Distribution Date, other than the final distribution, the 15th day
(whether or not a Business Day) preceding such Regular Distribution Date, and
(ii) for Special Payments to
11
be distributed on any Special Distribution Date, other than the final
distribution, the 15th day (whether or not a Business Day) preceding such
Special Distribution Date.
Register and Registrar: Mean the register maintained and the
registrar appointed pursuant to Sections 3.04 and 7.11.
Registration Event: Means the declaration of the effectiveness by
the SEC of the Exchange Offer Registration Statement or the Shelf Registration
Statement.
Registration Rights Agreement: Means the Exchange and Registration
Rights Agreement dated as of February 15, 2000, among the Initial Purchasers,
the Trustee, the Other Trustees and the Company, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Regular Distribution Date: With respect to distributions of
Scheduled Payments in respect of the Certificates, means each date designated
as a Regular Distribution Date in the Certificates issued pursuant to this
Agreement, until payment of all the Scheduled Payments to be made under the
Equipment Notes held in the Trust have been made; provided, however, that, if
any such day shall not be a Business Day, the related distribution shall be
made on the next succeeding Business Day without additional interest.
Regulation S: Means Regulation S under the Securities Act and any
successor regulation thereto.
Regulation S Restricted Date: Means the date 40-days after the later
of the commencement of the initial offering of the Initial Certificates and
the date of initial issuance thereof.
Related Pass Through Trust Agreement: Means the American Trans Air
2000-1C-S Pass Through Trust Agreement relating to the American Trans Air
2000-1C-S Pass Through Trust, dated the date hereof, entered into by the
Company and the institution acting as trustee thereunder, which agreement
becomes effective upon the execution and delivery of the Assignment and
Assumption Agreement pursuant to Section 11.01.
Related Trust: Means the American Trans Air 2000-1C-S Pass Through
Trust, formed under the Related Pass Through Trust Agreement.
Related Trustee: Means the trustee under the Related Pass Through
Trust Agreement.
Request: Means a request by the Company setting forth the subject
matter of the request accompanied by an Officer's Certificate and an Opinion
of Counsel as provided in Section 1.02 of this Agreement.
Responsible Officer: With respect to the Trustee, any Loan Trustee
and any Owner Trustee, means any officer in the Corporate Trust Office of the
Trustee, Loan Trustee or Owner Trustee or any other officer customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to
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whom any corporate trust matter is referred because of his knowledge of and
familiarity with a particular subject.
Rule 144A: Means Rule 144A under the United States Securities Act
and any successor rule thereto.
Scheduled Payment: With respect to any Equipment Note, means (i) any
payment of principal or interest on or in respect of such Equipment Note or
any payment of interest on the Certificates with funds drawn under the
Liquidity Facility (other than any such payment which is not in fact received
by the Trustee or any Subordination Agent within five days of the date on
which such payment is scheduled to be made) due from the obligor thereon or
(ii) any payment of interest on the Certificates with funds drawn under the
Liquidity Facility, which payment in any such case represents the installment
of principal at the stated maturity of such installment of principal on such
Equipment Note, the payment of regularly scheduled interest accrued on the
unpaid principal amount of such Equipment Note, or both; provided that any
payment of principal, premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute a Scheduled
Payment.
SEC: Means the Securities and Exchange Commission as from time to
time constituted or created under the United States Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on such
date.
Securities Act: Means the United States Securities Act of 1933, as
amended from time to time, or any successor thereto.
Shelf Registration Statement: Means the shelf registration statement
which may be required to be filed by the Company with the SEC pursuant to any
Registration Rights Agreement, other than an Exchange Offer Registration
Statement.
Special Distribution Date: Means each date on which a Special
Payment is to be distributed as specified in this Agreement; provided,
however, that, if any such day shall not be a Business Day, the related
distribution shall be made on the next succeeding Business Day without
additional interest.
Special Redemption Premium: Means the premium payable by the Company
in respect of the Final Withdrawal pursuant to the Note Purchase Agreement.
Special Payment: Means any payment (other than a Scheduled Payment)
in respect of, or any proceeds of, any Equipment Note or Trust Indenture
Estate (as defined in each Indenture) or Special Redemption Premium (if
applicable).
Special Payments Account: Means the account or accounts created and
maintained pursuant to Section 4.01(b).
Subordination Agent: Has the meaning specified therefor in the
Intercreditor Agreement.
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Substitute Aircraft: Has the meaning specified in Section 1(g) of
the Note Purchase Agreement.
Transfer Date: Has the meaning specified in Section 11.01.
Triggering Event: Has the meaning specified therefor in the
Intercreditor Agreement.
Trust: Means the trust created by this Agreement, the estate of
which consists of Trust Property.
Trust Indenture Act: Means the United States Trust Indenture Act of
1939, as amended from time to time.
Trust Property: Means (i) the Equipment Notes held as the property
of the Trust and, subject to the Intercreditor Agreement, all monies at any
time paid thereon and all monies due and to become due thereunder, (ii) all
rights of the Trust and the Trustee, on behalf of the Trust, under the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase Agreement and
the Liquidity Facilities, including, without limitation, all rights to receive
certain payments thereunder, and all monies paid to the Trustee on behalf of
the Trust pursuant to the Intercreditor Agreement or the Liquidity Facilities,
provided, that rights with respect to the Deposits or under the Escrow
Agreement, except for the right to direct withdrawals for the purchase of
Equipment Notes to be held herein, will not constitute Trust Property, and
(iii) the funds from time to time deposited in the Certificate Account and the
Special Payments Account and, subject to the Intercreditor Agreement, any
proceeds from the sale by the Trustee pursuant to Article VI hereof of any
such Equipment Note.
Trustee: Means Wilmington Trust Company, not in its individual
capacity but solely as trustee, or its successor in interest, and any
successor trustee appointed as provided herein.
Trustee's Lien: Has the meaning specified in section 7.16.
U.S. Global Certificate: Has the meaning specified in Section
3.01(c).
U.S. Physical Certificates: Has the meaning specified in Section
3.01(e).
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request (except with respect to matters set forth in Article
II) by the Company, any Owner Trustee or any Loan Trustee to the Trustee to
take any action under any provision of this Agreement, the Company, such Owner
Trustee or such Loan Trustee, as the case may be, shall furnish to the Trustee
(i) an Officer's Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and (ii) an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Agreement relating to such particular application or
request, no additional certificate or opinion need be furnished.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement (other than a certificate
provided pursuant to Section 8.04(d)) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions in this
Agreement relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any Opinion of Counsel stated to be based on the opinion of other
counsel shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
Section 1.04. Directions of Certificateholders.
(a) Any direction, consent, request, demand, authorization, notice,
waiver or other action provided by this Agreement to be given or taken by
Certificateholders (a "Direction") may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such
Certificateholders in person or by an agent or proxy duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required pursuant to this Agreement,
to the Company or any Loan Trustee. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to as the Directions of the Certificateholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent or proxy shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee, the Company and any Loan
Trustee, if made in the manner provided in this Section.
15
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of deeds
or administer oaths that the Person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or such other officer and where such execution
is by an officer of a corporation or association or a member of a partnership,
on behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact
and date of the execution of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any other reasonable
manner which the Trustee deems sufficient.
(c) In determining whether the Certificateholders of the requisite
Fractional Undivided Interests of Certificates Outstanding have given any
Direction under this Agreement, Certificates owned by the Company, the
Guarantor, any Owner Trustee, any Owner Participant or any Affiliate of any
such Person shall be disregarded and deemed not to be Outstanding for purposes
of any such determination. In determining whether the Trustee shall be
protected in relying upon any such Direction, only Certificates which the
Trustee knows to be so owned shall be so disregarded. Notwithstanding the
foregoing, (i) if any such Person owns 100% of the Certificates Outstanding,
such Certificates shall not be so disregarded as aforesaid, and (ii) if any
amount of Certificates so owned by any such Person have been pledged in good
faith, such Certificates shall not be disregarded as aforesaid if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Certificates and that the pledgee is not the Company, the
Guarantor, any Owner Trustee, any Owner Participant or any Affiliate of any
such Person.
(d) The Company may, at its option by delivery of an Officer's
Certificate to the Trustee, set a record date to determine the
Certificateholders entitled to give a Direction. Notwithstanding Section
316(c) of the Trust Indenture Act, such record date shall be the record date
specified in such Officer's Certificate which shall be a date not more than 30
days prior to the first solicitation of Certificateholders in connection
therewith. If such a record date is fixed, such Direction may be given before
or after such record date, but only the Certificateholders of record at the
close of business on such record date shall be deemed to be Certificateholders
for the purposes of determining whether Certificateholders of the requisite
proportion of Outstanding Certificates have authorized or agreed or consented
to such Direction, and for that purpose the Outstanding Certificates shall be
computed as of such record date; provided that no such Direction by the
Certificateholders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Agreement not later
than one year after the record date.
(e) Any Direction by the Holder of any Certificate shall bind the
Holder of every Certificate issued upon the transfer thereof or in exchange
therefor or in lieu thereof, whether or not notation of such Direction is made
upon such Certificate.
(f) Except as otherwise provided in Section 1.04(c), Certificates
owned by or pledged to any Person shall have an equal and proportionate
benefit under the provisions of this Agreement, without preference, priority,
or distinction as among all of the Certificates.
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(g) For all purposes of this Agreement, all Initial Certificates and
all Exchange Certificates shall vote and take all actions of
Certificateholders together as one series of Certificates.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF EQUIPMENT NOTES
Section 2.01. Issuance of Certificates; Acquisition of Equipment
Notes.
(a) The Trustee is hereby directed to (i) execute and deliver the
Intercreditor Agreement, the Registration Rights Agreement, the Escrow
Agreement and the Note Purchase Agreement on or prior to the Issuance Date,
each in the form delivered to the Trustee by the Company and (ii) subject to
the respective terms thereof, to perform its obligations thereunder. Upon the
request of the Company and the satisfaction or waiver of the closing
conditions specified in the Purchase Agreement, the Trustee shall, execute,
deliver, authenticate, issue and sell Certificates in authorized denominations
equaling in the aggregate the amount set forth, with respect to the Trust, in
Schedule A to the Purchase Agreement, and evidencing the entire ownership
interest in the Trust, which amount equals the maximum aggregate principal
amount of Equipment Notes which may be purchased by the Trustee pursuant to
the Note Purchase Agreement. Except as provided in Sections 3.04, 3.05, 3.06,
3.07 and 3.10 hereof, the Trustee shall not execute, authenticate or deliver
Certificates in excess of the aggregate amount specified in this paragraph.
(b) On or after the Issuance Date, the Company may deliver from time
to time to the Trustee a Delivery Notice relating to one or more Equipment
Notes. After receipt of a Delivery Notice and in any case no later than one
Business Day prior to a Delivery Date as to which such Delivery Notice relates
(the "Applicable Delivery Date") (or, if the Issuance Date is an Applicable
Delivery Date, on the Issuance Date), the Trustee shall (as and when specified
in the Delivery Notice) instruct the Escrow Agent to provide a Notice of
Purchase Withdrawal to the Depositary requesting (i) the withdrawal of one or
more Deposits on the Applicable Delivery Date in accordance with and to the
extent permitted by the terms of the Escrow Agreement and the Deposit
Agreement and (ii) the payment of all, or a portion, of such Deposit or
Deposits, in an aggregate amount equal to the purchase price of the Equipment
Notes relating to the Aircraft to be delivered on such Applicable Delivery
Date, to or on behalf of the Owner Trustee or the Company, as the case may be,
issuing such Equipment Notes, all as shall be described in the Delivery
Notice; provided that, if the Issuance Date is an Applicable Delivery Date,
such purchase price shall be paid from a portion of the proceeds of the sale
of the Certificates. The Trustee shall (as and when specified in such Delivery
Notice), subject to the conditions set forth in Sections 1 and 2 of the Note
Purchase Agreement, enter into and perform its obligations under the
Participation Agreement specified in such Delivery Notice (the "Applicable
Participation Agreement") and cause such certificates, documents and legal
opinions relating to the Trustee to be duly delivered as required by the
Applicable Participation Agreement. If at any time prior to the Applicable
Delivery Date, the Trustee receives a notice of postponement pursuant to
Section 1(d) or 1(e) of the Note Purchase Agreement, then the Trustee shall
give the Depositary (with a copy to the Escrow Agent) a notice of cancellation
of such Notice of Purchase Withdrawal relating to such Deposit or Deposits on
such Applicable Delivery Date. Upon satisfaction of the conditions specified
17
in the Note Purchase Agreement and the Applicable Participation Agreement, the
Trustee shall purchase the applicable Equipment Notes with the proceeds of the
withdrawals of one or more Deposits made on the Applicable Delivery Date in
accordance with the terms of the Deposit Agreement and the Escrow Agreement
(or, if the Issuance Date is the Applicable Delivery Date with respect to such
Applicable Participation Agreement, from a portion of the proceeds of the sale
of the Certificates). The purchase price of such Equipment Notes shall equal
the principal amount of such Equipment Notes. Amounts withdrawn from such
Deposit or Deposits in excess of the purchase price of the Equipment Notes or
to the extent not applied on the Applicable Delivery Date to the purchase
price of the Equipment Notes, shall be re-deposited by the Trustee with the
Depositary on the Applicable Delivery Date in accordance with the terms of the
Deposit Agreement.
Section 2.02. Withdrawal of Deposits. If any Deposits remain
outstanding on the Business Day next succeeding the Cut-Off Date, (i) the
Trustee shall give the Escrow Agent notice that the Trustee's obligation to
purchase Equipment Notes under the Note Purchase Agreement has terminated and
instruct the Escrow Agent to provide a notice of Final Withdrawal to the
Depositary substantially in the form of Exhibit B to the Deposit Agreement
(the "Final Withdrawal Notice") and (ii) the Trustee will make a demand upon
the Company under the Note Purchase Agreement for an amount equal to the
Special Redemption Premium, if applicable, such payment to be made on the
Final Withdrawal Date.
Section 2.03. Acceptance by Trustee. The Trustee, upon the execution
and delivery of this Agreement, acknowledges its acceptance of all right,
title, and interest in and to the Trust Property and declares that the Trustee
holds and will hold such right, title, and interest for the benefit of all
then present and future Certificateholders, upon the trusts herein set forth.
Subject to Section 7.13, the Trustee shall take all actions reasonably
necessary to effect the registration of all such Equipment Notes in the name
of the Subordination Agent. By its payment for and acceptance of each
Certificate issued to it under this Agreement, each initial Certificateholder
as grantor of the Trust thereby joins in the creation and declaration of the
Trust.
Section 2.04. Limitation of Powers. The Trust is constituted solely
for the purpose of making the investment in the Equipment Notes, and, except
as set forth herein, the Trustee shall not be authorized or empowered to
acquire any other investments or engage in any other activities and, in
particular, the Trustee shall not be authorized or empowered to do anything
that would cause such Trust to fail to qualify as a "grantor trust" for
federal income tax purposes (including as subject to this restriction
acquiring the Aircraft (as defined in the respective related Indentures) by
bidding such Equipment Notes or otherwise, or taking any action with respect
to any such Aircraft once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01. Title, Form, Denomination and Execution of
Certificates.
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(a) The Initial Certificates shall be known as the "9.644% Initial
Pass Through Certificates, Series 2000-1C-O" and the Exchange Certificates
shall be known as the "9.644% Exchange Pass Through Certificates, Series
2000-1C-O", in each case of the Trust. Each Certificate will represent a
fractional undivided interest in the Trust and shall be substantially in the
form set forth as Exhibit A hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the Trustee or the officers executing
such Certificates, as evidenced by the Trustee's or the officer's execution of
the Certificates. Any portion of the text of any Certificate may be set forth
on the reverse thereof, with an appropriate reference thereto on the face of
the Certificate. At the Escrow Agent's request under the Escrow Agreement, the
Trustee shall affix the corresponding Escrow Receipt to each Certificate. Any
transfer or exchange of any Certificate shall also effect a transfer or
exchange of the related Escrow Receipt. Prior to the Final Withdrawal Date, no
transfer or exchange of any Certificate shall be permitted unless the
corresponding Escrow Receipt is attached thereto and also is so transferred or
exchanged. By acceptance of any Certificate to which an Escrow Receipt is
attached, each Holder of such a Certificate acknowledges and accepts the
restrictions on transfer of the Escrow Receipt set forth herein and in the
Escrow Agreement.
(b) The Initial Certificates shall be issued only in fully
registered form without coupons in minimum denominations of $1,000 or integral
multiples of $1,000 in excess thereof, except that one Certificate may be
issued in a denomination of less than $1,000. Each Certificate shall be dated
the date of its authentication. The aggregate Fractional Undivided Interest of
Certificates shall not at any time exceed $36,740,000.
(c) The Initial Certificates offered and sold in reliance on Rule
144A shall be issued initially in the form of a single permanent global
Certificate in registered form, substantially in the form set forth as Exhibit
A hereto with such applicable legends as are provided for in clauses (a) and
(b) of Section 3.02 (the "U.S. Global Certificate"), duly executed and
authenticated by the Trustee as hereinafter provided. The U.S. Global
Certificate will be registered in the name of a nominee for DTC and deposited
with the Trustee, as custodian for DTC. The aggregate principal amount of the
U.S. Global Certificate may from time to time be increased or decreased by
adjustments made on the records of DTC or its nominee, or of the Trustee, as
custodian for DTC or its nominee, as hereinafter provided.
(d) The Initial Certificates offered and sold in offshore
transactions in reliance on Regulation S shall be issued in the form of a
single global Certificate in registered form, substantially in the form set
forth as Exhibit A hereto with such applicable legends as are provided for in
clause (b) of Section 3.02 (the "Offshore Global Certificate") duly executed
and authenticated by the Trustee as hereinafter provided. The U.S. Global
Certificate and the Offshore Global Certificates are sometimes referred to as
the "Global Certificates".
(e) The Initial Certificates offered and sold to Institutional
Accredited Investors shall be issued in the form of permanent certificated
Certificates in registered form in substantially the form set forth as Exhibit
A hereto with such applicable legends
19
as are provided for in clauses (a) and (b) of Section 3.02 hereto (the "U.S.
Physical Certificates"). Initial Certificates issued pursuant to Section
3.05(b) in exchange for interests in any Offshore Global Certificate shall be
in the form of permanent certificated Certificates in registered form
substantially in the form set forth in Exhibit A (the "Offshore Physical
Certificates"). The Offshore Physical Certificates and U.S. Physical
Certificates are sometimes collectively herein referred to as the "Physical
Certificates".
(f) Certificates offered and sold to any Institutional Accredited
Investor which is not a QIB in a transaction exempt from registration under
the Securities Act (and other than as described in Section 3.01(c)) shall be
issued substantially in the form set forth in Exhibit A (the "Restricted
Definitive Certificates") duly executed and authenticated by the Pass Through
Trustee as hereinafter provided. Certificates issued pursuant to Section
3.06(b) in exchange for interests in a U.S. Global Certificate shall be issued
in the form of a Restricted Definitive Certificate and Certificates issued
pursuant to Section 3.06(b) in exchange for an interest in a Offshore Global
Certificate shall be issued in definitive, fully registered form without
interest coupons (the "Regulation S Definitive Certificates"). The Restricted
Definitive Certificates and the Regulation S Definitive Certificates are
sometimes collectively referred to herein as the "Definitive Certificates".
(g) The Certificates shall be in registered form and shall be typed,
printed, lithographed or engraved or produced by any combination of these
methods or may be produced in any other manner, all as determined by the
officers executing such Certificates, as evidenced by their execution of such
Certificates.
(h) The Exchange Certificates shall be issued in the form of one or
more Global Certificates substantially in the form of Exhibit A hereto (each,
a "Global Exchange Certificate"), except that (i) the Private Placement Legend
(hereinafter defined) shall be omitted and (ii) such Exchange Certificates
shall contain such appropriate insertions, omissions, substitutions and other
variations from the form set forth in Exhibit A hereto relating to the nature
of the Exchange Certificates as the Responsible Officer of the Trustee
executing such Exchange Certificates on behalf of the Trust may determine, as
evidenced by such officer's execution on behalf of the Trust of such Exchange
Certificates. Such Global Exchange Certificates shall be in registered form
and be registered in the name of DTC and deposited with the Trustee, at its
Corporate Trust Office, as custodian for DTC. The aggregate principal amount
of any Global Exchange Certificate may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
DTC for such Global Exchange Certificate, which adjustments shall be
conclusive as to the aggregate principal amount of any such Global Exchange
Certificate. Subject to clause (i) and (ii) of the first sentence of this
Section 3.01(g), the terms hereof applicable to U.S. Global Certificates
and/or Global Certificates shall apply to the Global Exchange Certificates
mutatis mutandis.
Section 3.02. Restrictive Legends.
(a) Subject to Section 3.01 and 3.06, each U.S. Global Certificate
and each U.S. Physical Certificate shall bear the following legend (the
"Private Placement Legend") on the face thereof:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
20
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT
AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS
AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT)
(AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS CERTIFICATE IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES
THAT IT WILL NOT, WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUANCE OF THIS CERTIFICATE OR THE LAST DATE ON WHICH THIS
CERTIFICATE WAS HELD BY AMERICAN TRANS AIR, INC. ("ATA") OR AN
AFFILIATE OF ATA, RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE
EXCEPT (A) TO ATA OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED
STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING $100,000 OR MORE
AGGREGATE PRINCIPAL AMOUNT OF SUCH CERTIFICATES THAT TAKES DELIVERY
OF THIS CERTIFICATE IN DEFINITIVE FORM, AND PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS CERTIFICATE (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE), (D) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CASE THIS CERTIFICATE IS IN DEFINITIVE FORM, IN
CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE WITHIN TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THE CERTIFICATE OR THE
LAST DATE ON WHICH THIS CERTIFICATE WAS HELD BY ATA OR AN AFFILIATE
OF ATA, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE PASS
THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE
TO REFUSE TO REGISTER ANY
21
TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
(b) Each Global Certificate shall also bear the following legend on
the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN. TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE
LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC
OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS
OF PORTIONS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 3.05
AND 3.06 OF THE PASS THROUGH TRUST AGREEMENT REFERRED TO HEREIN.
Section 3.03. Authentication of Certificates.
(a) On the Issuance Date, the Trustee shall duly execute,
authenticate and deliver Certificates in authorized denominations equaling in
the aggregate the amount set forth, with respect to the Trust, in Schedule A
to the Purchase Agreement, and evidencing the entire ownership interest of the
Trust, which amount equals the maximum aggregate principal amount of Equipment
Notes to be purchased by the Trustee pursuant to the Note Purchase Agreement.
(b) No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, unless there appears on
such Certificate a certificate of authentication substantially in the form
provided for herein executed by the Trustee by the manual signature of one of
its authorized signatories, and such certificate upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been
duly authenticated and delivered hereunder.
Section 3.04. Transfer and Exchange.
(a) The Trustee shall cause to be kept at the office or agency to be
maintained by it in accordance with the provisions of Section 7.11 of this
Agreement a register (the "Register") for the Certificates in which, subject
to such reasonable regulations as it may prescribe, the Trustee shall provide
for the registration of the Certificates and of transfers and exchanges of the
Certificates as herein provided. The
22
Trustee shall initially be the registrar (the "Registrar") for the purpose of
registering the Certificates and transfers and exchanges of the Certificates
as herein provided. A Certificateholder may transfer a Certificate by written
application to the Registrar stating the name of the proposed transferee and
otherwise complying with the terms of this Agreement, including providing a
written certificate or other evidence of compliance with any restrictions on
transfer, in form satisfactory to the Trustee and the Registrar; provided that
no exchange of Initial Certificates for Exchange Certificates shall occur
until an Exchange Offer Registration Statement shall have been declared
effective by the SEC (notice of which shall be provided to the Trustee by the
Company). No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Certificateholder only upon, final acceptance and
registration of the transfer by the Registrar in the Register. Prior to the
registration of any transfer by a Certificateholder as provided herein, the
Trustee shall treat the person in whose name the Certificate is registered as
the owner thereof for all purposes, and the Trustee shall not be affected by
notice to the contrary. Furthermore, DTC shall, by acceptance of a Global
Certificate, agree that transfers of beneficial interests in such Global
Certificate may be effected only through a book-entry system maintained by DTC
(or its agent), and that ownership of a beneficial interest in the Certificate
shall be required to be reflected in a book entry. When Certificates are
presented to the Registrar with a request to register the transfer thereof or
to exchange them for an equal face amount of Certificates of other authorized
denominations, the Registrar shall register the transfer or make the exchange
as requested if its requirements for such transactions are met. To permit
registrations of transfers and exchanges in accordance with the terms,
conditions and restrictions hereof, the Trustee shall execute and authenticate
Certificates at the Registrar's request. No service charge shall be made to a
Certificateholder for any registration of transfer or exchange of the
Certificates, but the Trustee shall require payment of a sum sufficient to
cover any tax or similar governmental charge payable in connection therewith.
All Certificates surrendered for registration of transfer or exchange shall be
canceled and subsequently destroyed by the Trustee.
Section 3.05. Book-Entry Provisions for U.S. Global Certificate and
Offshore Global Certificates.
(a) Members of, or participants in, DTC ("Agent Members") shall have
no rights under this Agreement with respect to any Global Certificate held on
their behalf by DTC, or the Trustee as its custodian, and DTC may be treated
by the Trustee and any agent of the Trustee as the absolute owner of such
Global Certificate for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Trustee or any agent of the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by DTC or shall impair, as between DTC and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
holder of any Certificate. Upon the issuance of any Global Certificate, the
Registrar or its duly appointed agent shall record a nominee of DTC as the
registered holder of such Global Certificate.
(b) Transfers of any Global Certificate shall be limited to
transfers of such Global Certificate in whole, but not in part, to nominees of
DTC, its successor or such successor's nominees. Beneficial interests in the
U.S. Global Certificate and any Offshore Global Certificate may be transferred
in accordance with the rules and procedures of DTC and the provisions of
Section 3.06. Beneficial interests in the U.S. Global Certificate or an
Offshore Global Certificate shall be delivered to all beneficial
23
owners in the form of U.S. Physical Certificates or Offshore Physical
Certificates, as the case may be, if (i) the Company notifies the Trustee in
writing that DTC is unwilling or unable to discharge properly its
responsibilities as depositary for the U.S. Global Certificate or such
Offshore Global Certificate, as the case may be, and the Company is unable to
locate a qualified successor depositary within 90 days of such notice or (ii)
after the occurrence of an Event of Default, beneficial owners of the U.S.
Global Certificate or Offshore Global Certificates evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in the
Trust, by Direction of such Certificateholders delivered to the Company and
the Trustee, advise the Company, the Trustee and DTC through its Clearing
Agency Participants in writing that the continuation of a book-entry system
through DTC is no longer in the best interests of the Certificateholders, then
the Trustee shall notify all owners of beneficial interests in the U.S. Global
Certificate or an Offshore Global Certificate, through DTC, of the occurrence
of any such event and the availability of definitive Certificates.
(c) Any beneficial interest in one of the Global Certificates that
is transferred to a Person who takes delivery in the form of an interest in
the other Global Certificate will, upon such transfer, cease to be an interest
in such Global Certificate and become an interest in another Global
Certificate and, accordingly, will thereafter be subject to all transfer
restrictions, if any, and other procedures applicable to beneficial interests
in such other Global Certificate for as long as it remains such an interest.
(d) In connection with the transfer of the entire U.S. Global
Certificate or an entire Offshore Global Certificate to the beneficial owners
thereof pursuant to paragraph (b) of this Section 3.05, such U.S. Global
Certificate or Offshore Global Certificate, as the case may be, shall be
deemed to be surrendered to the Trustee for cancellation, and the Trustee
shall execute, authenticate and deliver, to each beneficial owner identified
by DTC in exchange for its beneficial interest in such U.S. Global Certificate
or Offshore Global Certificate, as the case may be, an equal aggregate
principal amount of U.S. Physical Certificates or Offshore Physical
Certificates, as the case may be, of authorized denominations.
(e) Any U.S. Physical Certificate delivered in exchange for an
interest in the U.S. Global Certificate pursuant to paragraph (b) of this
Section 3.05 shall, except as otherwise provided by paragraph (f) of Section
3.06, bear the Private Placement Legend.
(f) Any Offshore Physical Certificate delivered in exchange for an
interest in an Offshore Global Certificate pursuant to paragraph (b) of this
Section shall, except as otherwise provided by paragraph (f) of Section 3.06,
bear the applicable legend regarding transfer restrictions set forth in
Section 3.02(a).
(g) The registered holder of the U.S. Global Certificate or any
Offshore Global Certificate may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under
this Agreement or the Certificates.
Section 3.06. Special Transfer Provisions. Unless and until (i) an
Initial Certificate is sold under an effective Shelf Registration Statement,
or (ii) an Initial Certificate is exchanged for an Exchange Certificate
pursuant to an effective Exchange
24
Offer Registration Statement, in each case pursuant to the terms of the
Registration Rights Agreement, the following provisions shall apply to the
Initial Certificates:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of an Initial Certificate to any Institutional Accredited
Investor which is not a QIB (excluding transfers to, or on or after the
Regulation S Restricted Date, by Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Initial
Certificate, whether or not such Initial Certificate bears the Private
Placement Legend, if (x) the requested transfer is at least two years
after the later of the original issue date of the Initial Certificates
and the last date on which such Certificate was held by the Company or
any affiliate thereof or (y) the proposed transferee has delivered to the
Registrar a letter substantially in the form of Exhibit C hereto and the
aggregate principal amount of the Initial Certificates being transferred
is at least $100,000.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Certificate or, at a date prior to
the Regulation S Restricted Date, an Offshore Global Certificate, upon
receipt by the Registrar of (x) the documents, if any, required by
paragraph (i) and (y) instructions given in accordance with DTC's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date of the transfer and a decrease in the principal amount
of such U.S. Global Certificate in an amount equal to the principal
amount of the beneficial interest in such U.S. Global Certificate to be
transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver to the transferor or at its direction, one or
more U.S. Physical Certificates of like tenor and amount.
(b) Transfers to QIBS. The following provisions shall apply with
respect to the registration of any proposed transfer of an Initial Certificate
to a QIB (excluding Non-U.S. Persons):
(i) If the Initial Certificate to be transferred consists of U.S.
Physical Certificates or an interest in any Offshore Global Certificate
prior to the Regulation S Restricted Date, the Registrar shall register
the transfer if such transfer is being made by a proposed transferor who
has checked the box provided for on the form of U.S. Physical Certificate
or delivered a certificate to the Trustee in the form of Exhibit E hereto
stating, or has otherwise advised the Trustee and the Registrar in
writing, that the sale has been made in compliance with the provisions of
Rule 144A to a transferee who, in the case of a transfer of a U.S.
Physical Certificate, has signed the certification provided for on the
form of Initial Certificate and, in the case of an Offshore Global
Certificate transferred prior to the Regulation S Restricted Date, who
has signed the certification provided for in Exhibit E hereto, stating,
or has otherwise advised the Trustee and the Registrar in writing, that
it is purchasing the Initial Certificate for its own account or an
account with respect to which it exercises sole investment discretion and
that it, or the Person on whose behalf it is acting with respect to any
such account, is a QIB within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and has been
advised of the
25
applicable transfer restrictions relating to the Initial Certificates and
acknowledges that it has received such information regarding the Trust
and/or the Company as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A.
(ii) Upon receipt by the Registrar of the documents referred to in
clause (i) above and instructions given in accordance with DTC's and the
Registrar's procedures therefor, the Registrar shall reflect on its books
and records the date of such transfer and an increase in the principal
amount of the U.S. Global Certificate in an amount equal to the principal
amount of the U.S. Physical Certificates or interests in the Offshore
Global Certificate, as the case may be, being transferred, and the
Trustee shall cancel such U.S. Physical Certificates or decrease the
amount of such Offshore Global Certificate so transferred.
(c) Transfers of Interests in the Offshore Global Certificate on or
after the Regulation S Restricted Date. The Registrar shall register any
transfer of interests in the Offshore Global Certificate on or after the
Regulation S Restricted Date without requiring any additional certification.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any registration of any transfer of an
Initial Certificate to a Non-U.S. Person:
(i) The Registrar shall register any proposed transfer of a U.S.
Global Certificate or U.S. Physical Certificate to any Non-U.S. Person,
upon receipt of a certificate substantially in the form of Exhibit B
hereto from the proposed transferor. The Registrar shall promptly send a
copy of such certificate to the Company.
(ii) (A) Upon receipt by the Registrar of (x) the documents, if any,
required by paragraph (c) and (y) instructions in accordance with DTC's
and the Registrar's procedures, the Registrar shall reflect on its books
and records the date of such transfer and shall cancel the Physical
Certificate, if any, so transferred, or decrease the principal amount of
any such U.S. Global Certificate in an amount equal to the principal
amount of the beneficial interest in such U.S. Global Certificate to be
transferred, and (B) upon receipt by the Registrar of instructions given
in accordance with DTC's and the Registrar's procedures, the Registrar
shall reflect on its books and records the date and an increase in the
principal amount of the Offshore Global Certificate in an amount equal to
the principal amount of the U.S. Physical Certificate or the U.S. Global
Certificate, as the case may be, to be transferred, and the Trustee shall
cancel the Physical Certificate, if any, so transferred or decrease the
amount of such U.S. Global Certificate.
(e) Private Placement Legend. Upon the transfer, exchange or
replacement of Certificates not bearing the Private Placement Legend, the
26
Registrar shall deliver Certificates that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Certificates bearing the
Private Placement Legend, the Registrar shall deliver only Certificates that
bear the Private Placement Legend unless either (i) the circumstances
contemplated by paragraph (a)(i)(x) or (e)(ii) of this Section 3.06 exist or
(ii) there is delivered to the Registrar an Opinion of Counsel to the effect
that neither such legend nor the related restrictions on transfer are required
in order to maintain compliance with the provisions of the Securities Act.
(f) General. By its acceptance of any Certificate bearing the
Private Placement Legend, each Holder of such a Certificate acknowledges the
restrictions on transfer of such Certificate set forth in this Agreement and
agrees that it will transfer such Certificate only as provided in this
Agreement. The Registrar shall not register a transfer of any Certificate
unless such transfer complies with the restrictions on transfer of such
Certificate set forth in this Agreement. In connection with any transfer of
Certificates, each Certificateholder agrees by its acceptance of the
Certificates to furnish the Registrar or the Trustee such certifications,
legal opinions or other information as either of them may reasonably require
to confirm that such transfer is being made pursuant to an exemption from, or
a transaction not subject to, the registration requirements of the Securities
Act; provided that the Registrar shall not be required to determine the
sufficiency of any such certifications, legal opinions or other information.
Until such time as no Certificates remain Outstanding, the Registrar
shall retain copies of all letters, notices and other written communications
received pursuant to Section 3.05 or this Section 3.06. The Trustee, if not
the Registrar at such time, shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Registrar.
Section 3.07. Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Registrar, or the
Registrar receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate, and (b) there is delivered to the Registrar and the
Trustee such security, indemnity or bond, as may be required by them to save
each of them harmless, then, in the absence of notice to the Registrar or the
Trustee that such destroyed, lost or stolen Certificate has been acquired by a
protected purchaser, and provided that the requirements of Section 8-405 of
the Uniform Commercial Code in effect in any applicable jurisdiction are met,
the Trustee shall execute, authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate or Certificates, in authorized denominations and of like
Fractional Undivided Interest.
In connection with the issuance of any new Certificate under this
Section 3.07, the Trustee shall require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
and the Registrar) connected therewith. Any duplicate Certificate issued
pursuant to this Section 3.07 shall constitute conclusive evidence of the
appropriate Fractional Undivided Interest in the related Trust, as if
originally issued, whether or not the lost stolen or destroyed Certificate
shall be found at any time.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Certificates.
27
Section 3.08. Persons Deemed Owners. Prior to due presentment of a
Certificate for registration of transfer, the Trustee, the Registrar, and any
Paying Agent of the Trustee may treat the Person in whose name any Certificate
is registered (as of the day of determination) as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section
4.02 and for all other purposes whatsoever, and neither
the Trustee, the Registrar, nor any Paying Agent of the Trustee shall be
affected by any notice to the contrary.
Section 3.09. Cancellation. All Certificates surrendered for payment
or transfer or exchange shall, if surrendered to any Person party hereto other
than the Registrar, be delivered to the Registrar for cancellation. No
Certificates shall be authenticated in lieu of or in exchange for any
Certificates cancelled as provided in this Section, except as expressly
permitted by this Agreement. All cancelled Certificates held by the Registrar
shall be destroyed and a certification of their destruction delivered to the
Trustee.
Section 3.10. Limitation of Liability for Payments. All payments or
distributions made to Certificateholders shall be made only from the Trust
Property and only to the extent that the Trustee shall have sufficient income
or proceeds from the Trust Property to make such payments in accordance with
the terms of Article IV of this Agreement. Each Certificateholder, by its
acceptance of a Certificate, agrees that it will look solely to the income and
proceeds from the Trust Property for any payment or distribution due to such
Certificateholder pursuant to the terms of this Agreement and that it will not
have any recourse to the Company, the Trustee, the Loan Trustee, the Liquidity
Provider, the Owner Trustees or the Owner Participants, except as otherwise
expressly provided herein or in the Intercreditor Agreement. The Company is a
party to this Agreement solely for purposes of meeting the requirements of the
Trust Indenture Act.
Section 3.11. Temporary Certificates. Until definitive Certificates
are ready for delivery, the Trustee shall authenticate temporary Certificates.
Temporary Certificates shall be substantially in the form of definitive
Certificates but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the officers executing the
temporary Certificates, as evidenced by their execution of such temporary
Certificates. If temporary Certificates are issued, the Trustee will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee designated for such
purpose pursuant to Section 7.11, without charge to the Certificateholder.
Upon surrender for cancellation of any one or more temporary Certificates, the
Trustee shall execute, authenticate and deliver in exchange therefor a like
face amount of definitive Certificates of authorized denominations. Until so
exchanged, the temporary Certificates shall be entitled to the same benefits
under this Agreement as definitive Certificates.
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ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account.
(a) The Trustee shall establish and maintain on behalf of the
Certificateholders a Certificate Account as one or more non-interest-bearing
accounts. The Trustee shall hold the Certificate Account in trust for the
benefit of the Certificateholders, and shall make or permit withdrawals
therefrom only as provided in this Agreement. On each day when a Scheduled
Payment is made to the Trustee under the Intercreditor Agreement, the Trustee,
upon receipt thereof, shall immediately deposit the aggregate amount of such
Scheduled Payment into the Certificate Account.
(b) The Trustee shall establish and maintain on behalf of
the Certificateholders a Special Payments Account as one or more accounts,
which shall be non-interest-bearing except as provided in Section 4.04. The
Trustee shall hold the Special Payments Account in trust for the benefit of
the Certificateholders, and shall make or permit withdrawals therefrom only as
provided in this Agreement. On each day when one or more Special Payments are
made to the Trustee under the Intercreditor Agreement, the Trustee, upon
receipt thereof, shall immediately deposit the aggregate amount of such
Special Payments into the Special Payments Account.
(c) The Trustee shall cause the Subordination Agent to
present to the Loan Trustee to which an Equipment Note relates such Equipment
Note on the date of its stated final maturity or, in the case of any Equipment
Note which is to be redeemed in whole pursuant to the relevant Indenture, on
the applicable redemption date under such Indenture.
Section 4.02. Distributions from Certificate Account and Special
Payments Account.
(a) On each Regular Distribution Date or as soon thereafter as the
Trustee has confirmed receipt of the payment of all or any part of the
Scheduled Payments due on such date, the Trustee shall distribute out of the
Certificate Account the entire amount deposited therein pursuant to Section
4.01 (a). There shall be so distributed to each Certificateholder of record on
the Record Date with respect to such Regular Distribution Date (other than as
provided in Section 11.01 concerning the final distribution), by check mailed
to such Certificateholder at the address appearing in the Register, such
Certificateholder's pro rata share (based on the aggregate Fractional
Undivided Interest in the Trust held by such Certificateholder) of the
aggregate amount in the Certificate Account, except that, with respect to
Certificates registered on the Record Date in the name of the nominee of DTC
(initially, such nominee to be Cede & Co.), such distribution shall be made by
wire transfer in immediately available funds to the account designated by such
nominee.
(b) On each Special Distribution Date with respect to any Special
Payment or as soon thereafter as the Trustee has confirmed receipt of any
Special Payments due on the Equipment Notes or realized upon the sale of such
Equipment Notes, the Trustee shall distribute out of the Special Payments
Account the entire amount
29
deposited therein pursuant to Section 4.01(b) of such Special Payment. There
shall be so distributed to each Certificateholder of record on the Record Date
with respect to such Special Distribution Date (other than as provided in
Section 11.01 concerning the final distribution), by check mailed to such
Certificateholder at the address appearing in the Register, such
Certificateholder's pro rata share (based on the aggregate Fractional
Undivided Interest in the Trust held by such Certificateholder) of the
aggregate amount in the Special Payments Account on account of such Special
Payment, except that, with respect to Certificates registered on the Record
Date in the name of the nominee of DTC (initially, such nominee to be Cede &
Co.), such distribution shall be made by wire transfer in immediately
available funds to the account designated by such nominee.
(c) The Trustee shall, at the expense of the Company, cause notice
of each Special Payment to be mailed to each Certificateholder at his address
as it appears in the Register. In the event of redemption or purchase of
Equipment Notes held in the Trust, such notice shall be mailed not less than
20 days prior to the date any such Special Payment is scheduled to be
distributed. In the event the Company is required to pay a Special Redemption
Premium to the Trustee under the Note Purchase Agreement, such notice shall be
mailed, together with the notice by the Escrow Paying Agent under Section 2.06
of the Escrow Agreement, not less than 20 days prior to the Special
Distribution Date for such amount, which Special Distribution Date shall be
the Final Withdrawal Date. In the case of any other Special Payments, such
notice shall be mailed as soon as practicable after the Trustee has confirmed
that it has received funds for such Special Payment, stating the Special
Distribution Date for such Special Payment which shall occur not less than 20
days after the date of such notice and as soon as practicable thereafter.
Notices mailed by the Trustee shall set forth:
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 11.01),
(ii) the amount of the Special Payment for each $1,000 face amount
Certificate and the amount thereof constituting principal, premium, if
any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a Regular
Distribution Date for the Certificates, the total amount to be received
on such date for each $1,000 face amount Certificate.
If the amount of (i) premium, if any, payable upon the redemption or
purchase of an Equipment Note or (ii) the Special Redemption Premium, if any,
has not been calculated at the time that the Trustee mails notice of a Special
Payment, it shall be sufficient if the notice sets forth the other amounts to
be distributed and states that any premium received will also be distributed.
If any redemption of the Equipment Notes held in the Trust is
cancelled, the Trustee, as soon as possible after learning thereof, shall
cause notice thereof to be mailed to each Certificateholder at its address as
it appears on the Register.
Section 4.03. Statements to Certificateholders.
30
(a) On each Regular Distribution Date and Special Distribution Date,
the Trustee will include with each distribution to Certificateholders a
statement, giving effect to such distribution to be made on such Regular
Distribution Date or Special Distribution Date, as the case may be, setting
forth the following information (in the case of a Special Payment, including
any Special Redemption Premium, reflecting in part the information provided by
the Escrow Paying Agent under the Escrow Agreement) (per a $1,000 face amount
Certificate as to clauses (ii), (iii), (iv) and (v) below):
(i) the aggregate amount of funds distributed on such Distribution
Date hereunder and under the Escrow Agreement, indicating the amount
allocable to each source including any portion thereof paid by the
Liquidity Provider;
(ii) the amount of such distribution allocable to principal and the
amount allocable to premium (including any Special Redemption Premium),
if any;
(iii) the amount of such distribution hereunder allocable to
interest;
(iv) the amount of such distribution under the Escrow Agreement
allocable to interest on the Deposits;
(v) the amount of such distribution under the Escrow Agreement
allocable to the principal of the unused Deposits; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Certificates registered in the name of a
Clearing Agency or its nominee, on the Record Date prior to each Distribution
Date, the Trustee will request from the Clearing Agency a securities position
listing setting forth the names of all the Clearing Agency Participants
reflected on the Clearing Agency's books as holding interests in the
Certificates on such Record Date. On each Distribution Date, the Trustee will
mail to each such Clearing Agency Participant the statement described above
and will make available additional copies as requested by such Clearing Agency
Participant for forwarding to holders of Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Trustee
shall furnish to each Person who at any time during such calendar year was a
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i) through (a)(v), inclusive, above with
respect to the Trust for such calendar year or, in the event such Person was a
Certificateholder of record during a portion of such calendar year, for the
applicable portion of such year, and such other items as are readily available
to the Trustee and which a Certificateholder shall reasonably request as
necessary for the purpose of such Certificateholder's preparation of its
federal income tax returns. With respect to Certificates registered in the
name of a Clearing Agency or its nominee, such report and such other items
shall be prepared on the basis of information supplied to the Trustee by the
Clearing Agency Participants and shall be delivered by the Trustee to such
Clearing Agency Participants to be available for forwarding by such Clearing
Agency Participants.
31
(c) Promptly following (i) the Delivery Period Termination Date, if
there has been any change in the information set forth in clauses (x), (y) and
(z) below from that set forth on pages 86 and AIII-1 of the Offering
Memorandum, and (ii) any early redemption or purchase of, or any default in
the payment of principal or interest in respect of, any of the Equipment Notes
held in the Trust, or any Final Withdrawal, the Trustee shall furnish to
Certificateholders of record on such date a statement setting forth (x) the
expected Pool Balances for each subsequent Regular Distribution Date following
the Delivery Period Termination Date, (y) the related Pool Factors for such
Regular Distribution Dates and (z) the expected principal distribution
schedule of the Equipment Notes, in the aggregate, held as Trust Property at
the date of such notice. With respect to the Certificates registered in the
name of a Clearing Agency or its nominee, on the Delivery Period Termination
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 date. The Trustee will mail to each such Clearing Agency
Participant the statement described above and will make available additional
copies as requested by such Clearing Agency Participant for forwarding to
holders of Certificates.
Section 4.04. Investment of Special Payment Moneys. Any money
received by the Trustee pursuant to Section 4.01(b) representing a Special
Payment which is not to be promptly distributed shall, to the extent
practicable, be invested in Permitted Investments by the Trustee (and such
Permitted Investments shall be registered in the name of the Trustee) as
directed in writing by the Company pending distribution of such Special
Payment pursuant to Section 4.02. Any investment made pursuant to this Section
4.04 shall be in such Permitted Investments having maturities not later than
the date that such moneys are required to be used to make the payment required
under Section 4.02 on the applicable Special Distribution Date and the Trustee
shall hold any such Permitted Investments until maturity. The Trustee shall
have no liability with respect to any investment made pursuant to this Section
4.04, other than by reason of the willful misconduct or negligence of the
Trustee. All income and earnings from such investments shall be distributed on
such Special Distribution Date as part of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence. The Company, at
its own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises, except as otherwise specifically permitted in Section 5.02;
provided, however, that the Company shall not be required to preserve any
right or franchise if the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company.
Section 5.02. Consolidation, Merger, Etc. The Company shall not
consolidate with or merge into any other corporation or convey, transfer or
lease substantially all of its assets as an entirety to any Person unless:
32
(a) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer or
lease substantially all of the assets of the Company as an entirety shall
be organized and validly existing under the laws of the United States of
America or any state thereof or the District of Columbia and a "citizen
of the United States" (as defined in Section 40102(a)(15) of Title 49 of
the United States Code) holding an air carrier operating certificate
issued by the Federal Aviation Administration, or any successor agency
thereto (the "FAA"), pursuant to Xxxxxxx 000 xx Xxxxx 00, Xxxxxx Xxxxxx
Code, authorizing the operation in air transportation of aircraft capable
of carrying 10 or more individuals or 6,000 pounds or more of cargo
pursuant to Part 121 of the FAA's regulations (14 CFR Part 121);
(b) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer or
lease substantially all of the assets of the Company as an entirety shall
execute and deliver to the Trustee a duly authorized, valid, binding and
enforceable agreement in form and substance reasonably satisfactory to
the Trustee containing an assumption by such successor corporation or
Person of the due and punctual performance and observance of each
covenant and condition of the Note Documents, the Note Purchase
Agreement, the Other Pass Through Trust Agreements and this Agreement to
be performed or observed by the Company;
(c) immediately after giving effect to such transaction, no Event of
Default applicable to the Certificates shall have occurred and be
continuing; and
(d) the Company shall have delivered to the Trustee an Officers'
Certificate of the Company and an Opinion of Counsel of the Company
(which may be the Company's General Counsel) reasonably satisfactory to
the Trustee, each stating that such consolidation, merger, conveyance,
transfer or lease and the assumption agreement mentioned in clause (b)
above comply with this Section 5.02 and that all conditions precedent
herein provided for relating to such transaction have been complied with.
Upon any consolidation or merger, or any conveyance, transfer or
lease of substantially all of the assets of the Company as an entirety in
accordance with this Section 5.02, the successor corporation or Person formed
by such consolidation or into which the Company is merged or to which such
conveyance, offer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Agreement
with the same effect as if such successor corporation or Person had been named
as the Company herein. No such conveyance, transfer or lease of substantially
all of the assets of the Company as an entirety shall have the effect of
releasing the Company or any successor corporation or Person which shall
theretofore have become such in the manner prescribed in this Section 5.02
from its liability in respect of this Agreement, the Note Purchase Agreement
or any Note Document to which it is a party.
Section 5.03. Rule 144A(d)(4) Information. So long as any of the
Certificates are "restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act, at any time when the Guarantor is neither subject to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Company
33
and the Guarantor will provide to any holder of such restricted securities, or
to any prospective purchaser of such restricted securities designated by a
holder, upon the request of such holder or prospective purchaser, any
information required to be delivered to holders and prospective purchasers of
the Certificates pursuant to Rule 144A(d)(4) under the Securities Act.
ARTICLE VI
DEFAULT
Section 6.01. Events of Default.
(a) Exercise of Remedies. Upon the occurrence and during the
continuation of any Indenture Default under any Indenture, the Trustee may, to
the extent it is the Controlling Party at such time (as determined pursuant to
the Intercreditor Agreement), direct the exercise of remedies as provided in
the Intercreditor Agreement.
(b) Purchase Rights of Certificateholders. By acceptance of its
Certificate, each Certificateholder agrees that at any time after the
occurrence and during the continuation of a Triggering Event:
(i) each Certificateholder shall have the right to purchase for the
purchase price set forth in the Class G Trust Agreement, all, but not
less than all, of the Class G Certificates upon ten days' written notice
to the Class G Trustee and each other Certificateholder, provided that
(A) if prior to the end of such ten- day period any other
Certificateholder notifies such purchasing Certificateholder that such
other Certificateholder wants to participate in such purchase, then such
other Certificateholder may join with the purchasing Certificateholder to
purchase all, but not less than all, of the Class G Certificates pro rata
based on the Fractional Undivided Interest in the Trust held by each such
Certificateholder and (B) if prior to the end of such ten-day period any
other Certificateholder fails to notify the purchasing Certificateholder
of such other Certificateholder's desire to participate in such a
purchase, then such other Certificateholder shall lose its right to
purchase the Class G Certificates pursuant to this Section 6.01(b);
(ii) each Class D Certificateholder shall have the right (which
shall not expire upon any purchase of the Certificates pursuant to clause
(i) above) to purchase all, but not less than all, of the Certificates
and the Class G Certificates upon ten days' written notice to the
Trustee, the Class G Trustee and each other Class D Certificateholder,
provided that (A) if prior to the end of such ten-day period any other
Class D Certificateholder notifies such purchasing Class D
Certificateholder that such other Class D Certificateholder wants to
participate in such purchase, then such other Class D Certificateholder
may join with the purchasing Class D Certificateholder to purchase all,
but not less than all, of the Certificates and the Class G Certificates
pro rata based on the Fractional Undivided Interest in the Class D Trust,
taken as a whole, held by each such Class D Certificateholder and (B) if
prior to the end of such ten-day period any other Class D
Certificateholder fails to notify the purchasing Class D
Certificateholder of such other Class D Certificateholder's desire to
participate in such a purchase,
34
then such other Class D Certificateholder shall lose its right to
purchase the Certificates pursuant to this Section 6.01(b); and
(iii) by acceptance of its Certificate, each Certificateholder
agrees that at any time after the 180 days have elapsed since the
occurrence of a Triggering Event that is continuing, regardless of
whether the Certificateholders exercise their right to purchase the Class
G Certificates pursuant to clause (b)(i) above, the Policy Provider, if
it is then the Controlling Party, shall have the right (except in the
event of a Policy Provider Default) to purchase all, but not less than
all, of the Class G Certificates upon ten days' written notice to the
Class G Trustee and the Class G Certificateholders.
The purchase price with respect to the Certificates shall be equal
to the Pool Balance of the Certificates, together with accrued and unpaid
interest thereon to the date of such purchase, without premium, but including
any other amounts then due and payable to the Certificateholders under this
Agreement, the Intercreditor Agreement, the Escrow Agreement, the Note
Purchase Agreement or any Note Document or on or in respect of the
Certificates; provided, however, that (i) if such purchase occurs after the
Record Date with respect to the Final Withdrawal Date, such purchase price
shall be reduced by the aggregate amount of unused Deposits and interest to be
distributed under the Escrow Agreement (which deducted amounts shall remain
distributable to, and may be retained by, the Certificateholder as of such
Record Date) and (ii) if such purchase occurs after a Record Date but prior to
the Distribution Date relating to such Record Date, such purchase price shall
be reduced by the amount to be distributed hereunder on such related
Distribution Date (which deducted amounts shall remain distributable to, and
may be retained by, the Certificateholder as of such Record Date); provided,
further, that no such purchase of Certificates shall be effective unless the
purchaser shall certify to the Trustee that contemporaneously with such
purchase, such purchaser is purchasing, pursuant to the terms of this
Agreement and the Other Pass Through Trust Agreement, the Certificates, and
the Class G Certificates which are senior to the securities held by such
purchaser. Each payment of the purchase price of the Certificates referred to
in the first sentence hereof shall be made to an account or accounts
designated by the Trustee and each such purchase shall be subject to the terms
of this Section. Each Certificateholder agrees by its acceptance of its
Certificate that it will, subject to Section 3.04 hereof, upon payment from
such Class D Certificateholder(s) of the purchase price set forth in the first
sentence of this paragraph, forthwith sell, assign, transfer and convey to the
purchaser thereof (without recourse, representation or warranty of any kind
except for its own acts), all of the right, title, interest and obligation of
such Certificateholder in, this Agreement, the Escrow Agreement, the Deposit
Agreement, the Intercreditor Agreement, the Liquidity Facility, the Note
Documents, the Note Purchase Agreement and all Certificates and Escrow
Receipts held by such Certificateholder (excluding all right, title and
interest under any of the foregoing to the extent such right, title or
interest is with respect to an obligation not then due and payable as respects
any action or inaction or state of affairs occurring prior to such sale) and
the purchaser shall assume all of such Certificateholder's obligations under
this Agreement, the Escrow Agreement, the Deposit Agreement, the Intercreditor
Agreement, the Liquidity Facility, the Note Documents and the Note Purchase
Agreement and all such Certificates and Escrow Receipts. The Certificates will
be deemed to be purchased on the date payment of the purchase price is made
notwithstanding the failure of the Certificateholders to deliver any
Certificates (whether in the form of Physical Certificates or beneficial
interests in Global Certificates) and, upon such a purchase, (i) the only
rights of the Certificateholders will
35
be to deliver the Certificates to the purchaser and receive the purchase price
for such Certificates and (ii) if the purchaser shall so request such
Certificateholder will comply with all of the provisions of Section 3.04
hereof to enable new Certificates to be issued to the purchaser in such
denominations as it shall request. All charges and expenses in connection with
the issuance of any such new Certificates shall be borne by the purchaser
thereof.
As used in this Section 6.01(b), the terms "Class G Certificate",
"Class G Certificateholder", "Class G Trust", "Class G Trustee", "Class D
Certificate", "Class D Trust" and "Class D Trustee", shall have the respective
meanings assigned to such terms in the Intercreditor Agreement.
Section 6.02. Incidents of Sale of Equipment Notes. Upon any sale of
all or any part of the Equipment Notes made either under the power of sale
given under this Agreement or otherwise for the enforcement of this Agreement,
the following shall be applicable:
(1) Certificateholders and Trustee May Purchase Equipment Notes. Any
Certificateholder, the Trustee in its individual or any other capacity or
any other Person may bid for and purchase any of the Equipment Notes, and
upon compliance with the terms of sale, may hold, retain, possess and
dispose of such Equipment Notes in their own absolute right without
further accountability.
(2) Receipt of Trustee Shall Discharge Purchaser. The receipt of the
Trustee or of the officer making such sale shall be a sufficient
discharge to any purchaser for his purchase money, and, after paying such
purchase money and receiving such receipt, such purchaser or its personal
representative or assigns shall not be obliged to see to the application
of such purchase money, or be in any way answerable for any loss,
misapplication or non-application thereof.
(3) Application of Moneys Received upon Sale. Any moneys collected
by the Trustee upon any sale made either under the power of sale given by
this Agreement or otherwise for the enforcement of this Agreement shall
be applied as provided in Section 4.02.
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee
May Bring Suit. If there shall be a failure to make payment of the principal
of, premium, if any, or interest on any Equipment Note, or if there shall be
any failure to pay Rent (as defined in the relevant Lease) under any Lease
when due and payable, then the Trustee, in its own name, and as trustee of an
express trust, as holder of such Equipment Notes, to the extent permitted by
and in accordance with the terms of the Intercreditor Agreement and the rights
of the Controlling Party thereunder, the Note Purchase Agreement and the Note
Documents (subject to the rights of the applicable Owner Trustee or Owner
Participant to cure any such failure to pay principal of, or premium, if any,
or interest on any Equipment Note or to pay Rent under any Lease in accordance
with the applicable Indenture), shall be entitled and empowered to institute
any suits, actions or proceedings at law, in equity or otherwise, for the
collection of the sums so due and unpaid on such Equipment Notes or under such
Lease and may prosecute any such claim or proceeding to judgment or final
decree with respect to the whole amount of any such sums so due and unpaid.
36
Section 6.04. Control by Certificateholders. Subject to Section 6.03
and the Intercreditor Agreement and the rights of the Controlling Party
thereunder, the Certificateholders holding Certificates evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in the
Trust shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee with respect to the
Trust or pursuant to the terms of the Intercreditor Agreement, or exercising
any trust or power conferred on the Trustee under this Agreement or the
Intercreditor Agreement, including any right of the Trustee as Controlling
Party under the Intercreditor Agreement or as holder of the Equipment Notes,
provided that:
(1) such Direction shall not be in conflict with any rule of law or
with this Agreement and would not involve the Trustee in personal
liability or expense,
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Certificateholders not taking part
in such Direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such Direction.
Section 6.05. Waiver of Past Defaults. Subject to the Intercreditor
Agreement and the rights of the Controlling Party thereunder, the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust (i)
may on behalf of all of the Certificateholders waive any past Event of Default
hereunder and its consequences or (ii) if the Trustee is the Controlling
Party, may direct the Trustee to instruct the applicable Loan Trustee to waive
any past Indenture Default under any Indenture and its consequences, and
thereby annul any Direction given by such Certificateholders or the Trustee to
such Loan Trustee with respect thereto, except a default:
(1) in the deposit of any Scheduled Payment or Special Payment under
Section 4.01 or in the distribution of any payment under Section 4.02 on
the Certificates, or
(2) in the payment of the principal of (premium, if any) or interest
on the Equipment Notes, or
(3) in respect of a covenant or provision hereof which under Article
IX hereof cannot be modified or amended without the consent of each
Certificateholder holding an Outstanding Certificate affected thereby.
Upon any such waiver, such default shall cease to exist with respect
to the Certificates and any Event of Default arising therefrom shall be deemed
to have been cured for every purpose and any direction given by the Trustee on
behalf of the Certificateholders to the relevant Loan Trustee shall be
annulled with respect thereto; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Upon any such waiver, the Trustee shall vote the Equipment Notes
issued under the relevant Indenture to waive the corresponding Indenture
Default.
37
Section 6.06. Right of Certificateholders to Receive Payments Not to
Be Impaired. Anything in this Agreement to the contrary notwithstanding,
including, without limitation, Section 6.07 hereof, but subject to the
Intercreditor Agreement, the right of any Certificateholder to receive
distributions of payments required pursuant to Section 4.02 hereof on the
Certificates when due, or to institute suit for the enforcement of any such
payment on or after the applicable Regular Distribution Date or Special
Distribution Date, shall not be impaired or affected without the consent of
such Certificateholder.
Section 6.07. Certificateholders May Not Bring Suit Except Under
Certain Conditions. A Certificateholder shall not have the right to institute
any suit, action or proceeding at law or in equity or otherwise with respect
to this Agreement, for the appointment of a receiver or for the enforcement of
any other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given written
notice to the Trustee of a continuing Event of Default;
(2) Certificateholders holding Certificates evidencing Fractional
Undivided Interests aggregating not less than 25% of the Trust shall have
requested the Trustee in writing to institute such action, suit or
proceeding and shall have offered to the Trustee indemnity as provided in
Section 7.02(e);
(3) the Trustee shall have refused or neglected to institute such an
action, suit or proceeding for 60 days after receipt of such notice,
request and offer of indemnity; and
(4) no Direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust.
It is understood and intended that no one or more of the
Certificateholders shall have any right in any manner whatsoever hereunder or
under the Certificates to (i) surrender, impair, waive, affect, disturb or
prejudice any property in the Trust Property or the lien of any Indenture on
any property subject thereto, or the rights of the Certificateholders or the
holders of the related Equipment Notes, (ii) obtain or seek to obtain priority
over or preference with respect to any other such Certificateholder or (iii)
enforce any right under this Agreement, except in the manner herein provided
and for the equal, ratable and common benefit of all the Certificateholders
subject to the provisions of this Agreement.
Section 6.08. Remedies Cumulative. Every remedy given hereunder to
the Trustee or to any of the Certificateholders shall not be exclusive of any
other remedy or remedies, and every such remedy shall be cumulative and in
addition to every other remedy given hereunder or now or hereafter given by
statute, law, equity or otherwise.
Section 6.09. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Agreement, or in any suit against the
Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs
38
of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company or the Guarantor.
ARTICLE VII
THE TRUSTEE
Section 7.01. Notice of Defaults. As promptly as practicable after,
and in any event within 90 days after the occurrence of any default (as such
term is defined below) hereunder actually known to the Trustee, the Trustee
shall transmit by mail to the Company, the related Owner Trustees, the related
Loan Trustees and the Certificateholders in accordance with Section 313(c) of
the Trust Indenture Act, notice of such default hereunder actually known to
the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (premium, if any) or interest on any Equipment Note, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Certificateholders. For the purpose of this
Section, the term "default" means any event that is, or after notice or lapse
of time or both would become, an Event of Default.
Section 7.02. Certain Rights of Trustee. Subject to the provisions
of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Request;
(c) whenever in the administration of this Agreement or the
Intercreditor Agreement the Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate of the Company, any Owner Trustee or
any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement or the Intercreditor
Agreement at the request or direction of any of the Certificateholders
pursuant to this
39
Agreement or the 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 request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, or report, notice, request, direction, consent,
order, bond, debenture or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this
Agreement or the Intercreditor Agreement or perform any duties under this
Agreement or the Intercreditor Agreement either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it under this Agreement or the Intercreditor Agreement;
(h) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in
interest in the Trust relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement or the Intercreditor Agreement;
(i) the Trustee shall not be required to expend or risk its own
funds in the performance of any of its duties under this Agreement, or in
the exercise of any of its rights or powers, if it shall have reason to
believe that repayment of such funds or adequate indemnity against such
risk is not reasonably assured to it; and
(j) except during the continuance of an Event of Default, the
Trustee undertakes and shall be responsible to perform only such duties
as are specifically set forth herein and no implied covenants or
obligations shall be read into this Agreement or be enforceable against
Trustee.
Section 7.03. Not Responsible for Recitals or Issuance of
Certificates. The recitals contained herein and in the Certificates, except
the certificates of authentication, shall not be taken as the statements of
the Trustee, and the Trustee assumes no responsibility for their correctness.
Subject to Section 7.14, the Trustee makes no representations as to the
validity or sufficiency of this Agreement, the Note Purchase Agreement, any
Note Documents, any Participation Agreement or any Intercreditor Agreement,
the Deposit Agreement, the Escrow Agreement and Equipment Notes or the
Certificates, except that the Trustee hereby represents and warrants that this
Agreement has been, and each Certificate, the Intercreditor Agreement, the
Registration Rights Agreement, the Note Purchase Agreement, the Escrow
Agreement and each Certificate will be, executed, authenticated and delivered
by one of its officers who is duly authorized to execute, authenticate and
deliver such document on its behalf.
Section 7.04. May Hold Certificates. The Trustee, any Paying Agent,
Registrar or any of their Affiliates or any other agent, in their respective
individual or
40
any other capacity, may become the owner or pledgee of Certificates and
subject to Sections 310(b) and 311 of the Trust Indenture Act, if applicable,
may otherwise deal with the Company, the Guarantor, the Owner Trustees or the
Loan Trustees with the same rights it would have if it were not Trustee,
Paying Agent, Registrar or such other agent.
Section 7.05. Money Held in Trust. Money held by the Trustee or the
Paying Agent in trust hereunder need not be segregated from other funds except
to the extent required herein or by law and neither the Trustee nor the Paying
Agent shall have any liability for interest upon any such moneys except as
provided for herein.
Section 7.06. Compensation and Reimbursement. The Company agrees
with respect to the trustee in its individual capacity:
(1) to pay, or cause to be paid, to the Trustee compensation (as set
out in a separate fee agreement between the Trustee and the Company) for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein to reimburse, or
cause to be reimbursed, the Trustee upon its request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Agreement or the
Intercreditor Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence, willful misconduct or bad faith or as may be incurred due to
the Trustee's breach of its representations and warranties set forth in
Section 7.14;
(3) to indemnify, or cause to be indemnified, the Trustee for, and
to hold it harmless against, any loss, liability or expense (other than
for or with respect to any tax) incurred without negligence, willful
misconduct or bad faith, on its part, arising out of or in connection
with the acceptance or administration of this Trust, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder, except for any such loss, liability or expense incurred
by reason of the Trustee's breach of its representations and warranties
set forth in Section 7.14. The Trustee shall notify the Company and the
Guarantor promptly of any claim for which it may seek indemnity. The
Company and the Guarantor shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel with the
consent of the Company and the Guarantor and the Company and the
Guarantor will pay the reasonable fees and expenses of such counsel.
Neither the Company nor the Guarantor need pay for any settlement made
without its consent; and
(4) to indemnify, or cause to be indemnified, the Trustee, solely in
its individual capacity, for, and to hold it harmless against, any tax
(except to the extent the Trustee actually receives reimbursement
therefor pursuant to the next paragraph, provided that no indemnification
shall be available with respect to any tax attributable to the Trustee's
compensation for serving as such) incurred without negligence, willful
misconduct or bad faith, on its part, arising out of or
41
in connection with the acceptance or administration of this Trust,
including any costs and expenses incurred in contesting the imposition of
any such tax. The Trustee, in its individual capacity, shall notify the
Company and the Guarantor promptly of any claim for any tax for which it
may seek indemnity. The Trustee shall permit the Company and the
Guarantor to contest the imposition of such tax and the Trustee, in its
individual capacity, shall cooperate in the defense. The Trustee, in its
individual capacity, may have separate counsel with the consent of the
Company and the Guarantor and the Company and the Guarantor will pay the
reasonable fees and expenses of such counsel. Neither the Company nor the
Guarantor need pay for any taxes paid, in settlement or otherwise,
without its consent.
The Trustee shall be entitled to reimbursement from, and shall have
a lien prior to the Certificates upon, the Trust Property for any tax incurred
without negligence, bad faith or willful misconduct on its part, arising out
of or in connection with the acceptance or administration of such Trust (other
than any tax attributable to the Trustee's compensation for serving as such),
including any costs and expenses incurred in contesting the imposition of any
such tax. The Trustee shall notify the Company of any claim for any tax for
which it may seek reimbursement. The Trustee shall cooperate in the contest by
the Company of any such claim. If the Trustee reimburses itself from the Trust
Property for any such tax it will within 30 days mail a brief report setting
forth the amount of such tax and the circumstances thereof to all
Certificateholders as their names and addresses appear in the Register.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Certificates
upon the Trust Property.
Section 7.07. Corporate Trustee Required, Eligibility. There shall
at all times be a Trustee hereunder which shall be eligible to act as a
trustee under Section 310(a) of the Trust Indenture Act and shall have a
combined capital and surplus of at least $75,000,000 (or a combined capital
and surplus in excess of $5,000,000 and the obligations of which, whether now
in existence or hereafter incurred, are fully and unconditionally guaranteed
by a corporation organized and doing business under the laws of the United
States, any State or Territory thereof or of the District of Columbia that has
a combined capital and surplus of at least $75,000,000). If such corporation
publishes reports of conditions at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section
7.07, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
conditions so published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.07 to act as Trustee, the
Trustee shall resign immediately as Trustee in the manner and with the effect
specified in Section 7.08.
Section 7.08. Resignation and Removal: Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 7.09.
42
(b) The Trustee may resign at any time as trustee by giving written
notice thereof to the Company, the Authorized Agents, the Owner Trustees and
the Loan Trustees. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Company, the Authorized Agents, the Owner
Trustees, the Loan Trustees and the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust
delivered to the Trustee, the Company, the Owner Trustees and the Loan
Trustees.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310 of the Trust
Indenture Act after written request therefor by the Company or by any
Certificateholder who has been a bona fide Certificateholder for at least
six months; or
(2) the Trustee shall cease to be eligible under Section 7.07 and
shall fail to resign after written request therefor by the Company or by
any such Certificateholder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any case, (i) the Company may remove the Trustee or (ii) any
Certificateholder who has been a bona fide Certificateholder for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(e) If a Responsible Officer of the Trustee shall obtain actual
knowledge of an Avoidable Tax (as hereinafter defined) which has been or is
likely to be asserted, the Trustee shall promptly notify the Company and
shall, within 30 days of such notification, resign as Trustee hereunder unless
within such 30-day period the Trustee shall have received notice that the
Company has agreed to pay such tax. The Company shall promptly appoint a
successor Trustee in a jurisdiction where there are no Avoidable Taxes. As
used herein, an "Avoidable Tax" means a state or local tax: (i) upon (w) the
Trust, (x) the Trust Property, (y) Certificateholders or (z) the Trustee for
which the Trustee is entitled to seek reimbursement from the Trust Property,
and (ii) which would be avoided if the Trustee were located in another state,
or jurisdiction within a state, within the United States. A tax shall not be
an Avoidable Tax if the Company or any Owner Trustee shall agree to pay, and
shall pay, such tax.
(f) If the Trustee shall resign, be removed or become incapable of
acting as trustee or if a vacancy shall occur in the office of the Trustee for
any cause, the Company shall promptly appoint a successor Trustee. If, within
90 days after such resignation, removal or incapability, or other occurrence
of such vacancy, a successor
43
Trustee shall be appointed by Direction of the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less
than a majority in interest in the Trust delivered to the Company, the Owner
Trustees, the Loan Trustee and the retiring Trustee, the successor Trustees so
appointed shall, with the approval of the Company, which approval shall not be
unreasonably withheld, forthwith upon its acceptance of such appointment,
become the successor Trustee and supersede the successor Trustee appointed as
provided above. If no successor Trustee shall have been so appointed as
provided above and accepted appointment in the manner hereinafter provided,
the resigning Trustee or any Certificateholder who has been a bona fide
Certificateholder for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(g) The successor Trustee of a Trust shall give notice of the
resignation and removal of the Trustee and appointment of the successor
Trustee by mailing written notice of such event by first-class mail, postage
prepaid, to the Certificateholders as their names and addresses appear in the
Register. Each notice shall include the name of such successor Trustee and the
address of its Corporate Trust Office.
Section 7.09. Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall execute and deliver an
instrument transferring to such successor Trustee all such rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee,
subject nevertheless to its lien, if any, provided for in Section 7.06. Upon
request of any such successor Trustee, the Company, the retiring Trustee and
such successor Trustee shall execute and deliver any and all instruments
containing such provisions as shall be necessary or desirable to transfer and
confirm to, and for more fully and certainly vesting in, such successor
Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 7.10. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Certificates shall have
been executed or authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such execution or authentication and deliver
the Certificates so executed or authenticated with the same effect as if such
successor Trustee had itself executed or authenticated such Certificates.
44
Section 7.11. Maintenance of Agencies.
(a) There shall at all times be maintained an office or agency where
Certificates may be presented or surrendered for registration of transfer or
for exchange, and for payment thereof and where notices and demands to or upon
the Trustee in respect of such Certificates may be served. Presentations and
demands may be made and notices may be served at the Corporate Trust Office of
the Trustee.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder with respect to the Certificates. Each such Authorized Agent shall
be a bank or trust company, shall be a corporation organized and doing
business under the laws of the United States or any state, with a combined
capital and surplus of at least $75,000,000, or a corporation having a
combined capital and surplus in excess of $5,000,000 the obligations of which
are guaranteed by a corporation organized and doing business under the laws of
the United States or any state, with a combined capital and surplus of at
least $75,000,000, and shall be authorized under such laws to exercise
corporate trust powers, subject to supervision by federal or state
authorities. The Trustee shall initially be the Paying Agent and, as provided
in Section 3.04, Registrar hereunder with respect to the Certificates. Each
Registrar shall furnish to the Trustee, at stated intervals of not more than
six months, and at such other times as the Trustee may request in writing, a
copy of the Register maintained by such Registrar.
(c) Any corporation into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authorized Agent,
shall be a party, or any corporation succeeding to the corporate trust
business of any Authorized Agent, shall be the successor of such Authorized
Agent hereunder, if such successor corporation is otherwise eligible under
this Section, without the execution or filing of any paper or any further act
on the part of the parties hereto or such Authorized Agent or such successor
corporation.
(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Trustee, the Company, the Owner Trustees and the
Loan Trustees. The Company may, and at the request of the Trustee shall, at
any time terminate the agency of any Authorized Agent by giving written notice
of termination to such Authorized Agent and to the Trustee. Upon the
resignation or termination of an Authorized Agent or in case at any time any
such Authorized Agent shall cease to be eligible under this Section (when in
either case, no other Authorized Agent performing the functions of such
Authorized Agent shall have been appointed), the Company shall promptly
appoint one or more qualified successor Authorized Agents, reasonably
satisfactory to the Trustee, to perform the functions of the Authorized Agent
which has resigned or whose agency has been terminated or who shall have
ceased to be eligible under this Section. The Company shall give written
notice of any such appointment made by it to the Trustee, the Owner Trustees
and the Loan Trustees; and in each case the Trustee shall mail notice of such
appointment to all Certificateholders as their names and addresses appear on
the Register.
(e) The Company agrees to pay, or cause to be paid, from time to
time to each Authorized Agent reasonable compensation for its services and to
reimburse it for its reasonable expenses.
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Section 7.12. Money for Certificate Payments to Be Held in Trust.
All moneys deposited with any Paying Agent for the purpose of any payment on
Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of this
Section. Moneys so deposited and held in trust shall constitute a separate
trust fund for the benefit of the Certificateholders with respect to which
such money was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.13. Registration of Equipment Notes in Name of
Subordination Agent. The Trustee agrees that all Equipment Notes to be
purchased by the Trust shall be issued in the name of the Subordination Agent
or its nominee and held by the Subordination Agent in trust for the benefit of
the Certificateholders, or, if not so held, the Subordination Agent or its
nominee shall be reflected as the owner of such Equipment Notes in the
register of the issuer of such Equipment Notes.
Section 7.14. Representations and Warranties of Trustee. The Trustee
hereby represents and warrants that:
(a) the Trustee is a Delaware banking corporation organized and
validly existing, and in good standing under the laws of the State of
Delaware;
(b) the Trustee has full corporate power, authority and legal right
to execute, deliver and perform this Agreement, the Intercreditor
Agreement, the Registration Rights Agreement, the Escrow Agreement, the
Note Purchase Agreement and the Note Documents to which it is a party and
has taken all necessary corporate action to authorize the execution,
delivery and performance by it of this Agreement, the Intercreditor
Agreement, the Registration Rights Agreement, the Escrow Agreement, the
Note Purchase Agreement and the Note Documents to which it is a party;
(c) the execution, delivery and performance by the Trustee of this
Agreement, the Intercreditor Agreement, the Registration Rights
Agreement, the Escrow Agreement, the Note Purchase Agreement and the Note
Documents to which it is a party (i) will not violate any provision of
the law of the State of Delaware or governing the banking and trust
powers of the Trustee or any order, writ, judgment, or decree of any
court, arbitrator, or governmental authority applicable to the Trustee or
any of its assets, (ii) will not violate any provision of the articles of
association or by-laws of the Trustee, or (iii) will not violate any
provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of any lien on any
properties included in the Trust Property pursuant to the provisions of,
any mortgage, indenture, contract, agreement or other undertaking to
which it is a party, which violation, default or lien could reasonably be
expected to have an adverse effect on the Trustee's performance or
ability to perform its duties hereunder or thereunder or on the
transactions contemplated herein or therein;
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(d) the execution, delivery and performance by the Trustee of this
Agreement, the Intercreditor Agreement, the Registration Rights
Agreement, the Escrow Agreement, the Note Purchase Agreement and the Note
Documents to which it is a party will not require the authorization,
consent, or approval of, the giving of notice to, the filing or
registration with, or the taking of any other action in respect of, any
governmental authority or agency of the State of Delaware or the United
States regulating the banking and corporate trust activities of the
Trustee; and
(e) this Agreement, the Intercreditor Agreement, the Registration
Rights Agreement, the Escrow Agreement, the Note Purchase Agreement and
the Note Documents to which it is a party have been duly executed and
delivered by the Trustee and constitute the legal, valid, and binding
agreements of the Trustee, enforceable against it in accordance with
their respective terms, provided that enforceability may be limited by
(i) applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and (ii) general
principles of equity, regardless of whether applied in a proceeding at
equity or at law.
Section 7.15. Withholding Taxes, Information Reporting. (a) The
Trustee, as trustee of the grantor trust created by this Agreement, shall
exclude and withhold from each distribution of principal, premium, if any, and
interest and other amounts due under this Agreement or under the Certificates
any and all federal United States withholding taxes applicable thereto as
required by law. The Trustee agrees to act as such withholding agent and, in
connection therewith, whenever any taxes or similar charges are required to be
withheld with respect to any amounts paid by or on behalf of the Trustee in
respect of the Certificates, to withhold such amounts and timely pay the same
to the authority in the name of and on behalf of the Certificateholders, that
it will file any necessary withholding tax returns or statements when due, and
that, as promptly as possible after the payment thereof, it will deliver to
each such Certificateholder necessary documentation showing the payment
thereof, together with such additional documentary evidence as such
Certificateholders may reasonably request from time to time. The Trustee
agrees to file any other information reports as it may be required to file
under United States law. In the event that any withholding tax is imposed on a
payment to a Certificateholder, such tax shall reduce the amount otherwise
distributable to the Certificateholder in accordance with this Section.
(b) Any Certificateholder which is organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date such
Certificateholder becomes a Certificateholder, (a) so notify the Trustee,
(b)(i) provide the Trustee with Internal Revenue Service form W-8BEN, W-8ECI,
W-8IMY or W-8EXP, or any substitute or successor form, or (ii) notify the
Trustee that it is not entitled to an exemption from United States withholding
tax or a reduction in the rate thereof on payments of interest. Any such
Certificateholder agrees by its acceptance of a Trust Security, on an ongoing
basis, to provide like certification should any previously provided form
become invalid and to notify the Trustee should subsequent circumstances arise
affecting the information provided the Trustee in clauses (a) and (b) above.
The Trustee shall be fully protected in relying upon, and each
Certificateholder by its acceptance of a Security agrees to indemnify and hold
the Trustee harmless against all claims or liability of any kind arising in
connection with or related to the Trustee's reliance upon any documents, forms
or information provided by any Certificateholder to
47
the Trustee. In addition, if the Trustee has not withheld taxes on any payment
made to any Certificateholder, and the Trustee is subsequently required to
remit to any taxing authority any such amount not withheld, such
Certificateholder shall return such amount to the Trustee upon written demand
by the Trustee. The Trustee shall be liable only for direct (but not
consequential) damages to any Certificateholder due to the Trustee's violation
of the Code and only to the extent such liability is caused by the Trustee's
gross negligence or willful misconduct.
(c) The Trustee may satisfy certain of its obligations with respect
to this Agreement by retaining, at the expense of the Company, a firm of
independent public accountants (the "Accountants") which shall (i) be
responsible for all tax filing requirements and (ii) perform the obligations
of the Trustee in respect of tax filing requirements. The Trustee shall be
deemed to have discharged its tax filing obligations under this Agreement upon
its retention of the Accountants, and, if the Trustee shall have selected the
Accountants in good faith and without gross negligence or with the prior
approval of or notice to the Company, the Trustee shall not have any liability
with respect to the default or misconduct of the Accountants.
(d) The Trustee, at the request and instruction of the Company, will
make such United States federal income tax elections as may be necessary to
prevent the Trust from being classified for federal income tax purposes as an
association taxable as a corporation.
Section 7.16. Trustee's Liens. The Trustee in its individual
capacity agrees that it will at its own cost and expense promptly take any
action as may be necessary to duly discharge and satisfy in full any mortgage,
pledge, lien, charge, encumbrance, security interest or claim ("Trustee's
Liens") on or with respect to the Trust Property which is attributable to the
Trustee either (i) in its individual capacity and which is unrelated to the
transactions contemplated by this Agreement, the Registration Rights
Agreement, the Intercreditor Agreement, the Participation Agreements, the Note
Purchase Agreement or the Note Documents, or (ii) in its individual capacity
and which arises out of acts or omissions of the Trustee in its individual
capacity which are not contemplated by this Agreement.
Section 7.17. Preferential Collection of Claims. The Trustee shall
comply with Section 311(a) of the Trust Indenture Act, excluding any creditor
relationship listed in Section 311(b) of the Trust Indenture Act. If the
Trustee shall resign or be removed as Trustee, it shall be subject to Section
311(a) of the Trust Indenture Act to the extent provided therein.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and
Addresses of Certificateholders. The Company will furnish or cause to be
furnished to the Trustee within 15 days after each Record Date with respect to
a Scheduled Payment, and at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such request, a
list, in such form as the Trustee may reasonably require, of all information
in the possession or control of the Company as to the names and
48
addresses of the Certificateholders, in each case as of a date not more than
15 days prior to the time such list is furnished; provided, however, that so
long as the Trustee is the sole Registrar, no such list need be furnished; and
provided further, however, that no such list need be furnished for so long as
a copy of the Register is being furnished to the Trustee pursuant to Section
7.11.
Section 8.02. Preservation of Information; Communications to
Certificateholders. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders
contained in the most recent list furnished to the Trustee as provided in
Section 7.11 or Section 8.01, as the case may be, and the names and addresses
of Certificateholders received by the Trustee in its capacity as Registrar, if
so acting. The Trustee may destroy any list furnished to it as provided in
Section 7.11 or Section 8.01, as the case may be, upon receipt of a new list
so furnished.
Section 8.03. Reports by Trustee. Within 60 days after May
15 of each year commencing with the first full year following the issuance of
the Certificates, the Trustee shall transmit to the Certificateholders, as
provided in Section 313(c) of the Trust Indenture Act, a brief report dated as
of such May 15, if required by Section 313(a) of the Trust Indenture Act.
Section 8.04. Reports by the Guarantor and Company. The Guarantor
and the Company each shall:
(a) file with the Trustee, within 30 days after the Guarantor or the
Company is required to file the same with the SEC, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may from time to time by
rules and regulations prescribe) which the Guarantor or the Company is
required to file with the SEC pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934, as amended; or, if the Guarantor or
the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and
the SEC, in accordance with rules and regulations prescribed by the SEC,
such of the supplementary and periodic information, documents and reports
which may be required pursuant to section 13 of the Securities Exchange
Act of 1934, as amended, in respect of a security listed and registered
on a national securities exchange as may be prescribed in such rules and
regulations;
(b) file with the Trustee and the SEC, in accordance with the rules
and regulations prescribed by the SEC, such additional information,
documents and reports with respect to compliance by the Guarantor and the
Company with the conditions and covenants of the Guarantor and the
Company provided for in this Agreement, as may be required by such rules
and regulations, including, in the case of annual reports, if required by
such rules and regulations, certificates or opinions of independent
public accountants, conforming to the requirements of Section 1.02;
(c) transmit to all Certificateholders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports required to be filed
by the Guarantor and the Company pursuant to subsections (a) and (b) of
this Section 8.04 as may be required by rules and regulations prescribed
by the SEC; and
49
(d) furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Guarantor's and the Company's compliance with all conditions and
covenants under this Agreement (it being understood that for purposes of
this paragraph (d), such compliance shall be determined without regard to
any period of grace or requirement of notice provided under this
Agreement).
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders. Without the consent of the Certificateholders, the
Guarantor and the Company may, and the Trustee (subject to Section 9.03)
shall, at any time and from time to time, enter into one or more agreements
supplemental hereto or, if applicable, to the Indenture, the Lease, the
Participation Agreement, Intercreditor Agreement, the Escrow Agreement, the
Note Purchase Agreement, the Deposit Agreement, the Registration Rights
Agreement or the Liquidity Facility in form satisfactory to the Trustee, for
any of the following purposes:
(1) to evidence the succession of another corporation to the Company
or the Guarantor and the assumption by any such successor of the
covenants of the Company or the Guarantor contained herein or in each of
the other related documents to which the Company or the Guarantor is a
party or of the Company's or the Guarantor's obligations under the Note
Purchase Agreement, the Registration Rights Agreement or the Liquidity
Facility; or
(2) to add to the covenants of the Guarantor or the Company for the
benefit of the Certificateholders, or to surrender any right or power in
this Agreement, the Note Purchase Agreement, the Registration Rights
Agreement or the Liquidity Facility conferred upon the Guarantor or the
Company; or
(3) to correct or supplement any provision in this Agreement, the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase
Agreement, the Deposit Agreement, Registration Rights Agreement or the
Liquidity Facility which may be defective or inconsistent with any other
provision herein or therein or to cure any ambiguity or correct any
mistake or to modify any other provision with respect to matters or
questions arising under this Agreement, the Intercreditor Agreement, the
Escrow Agreement, the Note Purchase Agreement, the Deposit Agreement,
Registration Rights Agreement or the Liquidity Facility, provided that
any such action shall not materially adversely affect the interests of
the Certificateholders; or to cure any ambiguity or correct any mistake
in such documents, or as provided in the Intercreditor Agreement, to give
effect to or provide for a Replacement Liquidity Facility (as defined in
the Intercreditor Agreement); or
50
(4) to comply with any requirement of the SEC, any applicable law,
rules or regulations of any exchange or quotation system on which the
Certificates are listed, or any regulatory body or the Registration
Rights Agreement to effectuate the Exchange Offer; or
(5) to modify, eliminate or add to the provisions of this Agreement
to such extent as shall be necessary to continue the qualification of
this Agreement (including any supplemental agreement) under the Trust
Indenture Act, or under any similar Federal statute hereafter enacted,
and to add to this Agreement such other provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in effect
at the date as of which this instrument was executed or any corresponding
provision in any similar Federal statute hereafter enacted; or
(6) to evidence and provide for the acceptance of appointment under
this Agreement by the Trustee of a successor Trustee and to add to or
change any of the provisions of this Agreement as shall be necessary to
provide for or facilitate the administration of the Trust, pursuant to
the requirements of Section 7.09;
(7) if with respect to any Owned Aircraft the Company issues "class
D" pass through certificates, to modify, eliminate or add to the
provisions of this Agreement to the extent necessary to provide for the
subordination of such "class D" pass through certificates to the
Certificates; or
(8) to modify or eliminate provisions relating to the transfer or
exchange of Exchange Certificates or the Initial Certificates upon
consummation of the Exchange Offer (as defined in the Registration Rights
Agreement) or effectiveness of the Shelf Registration Statement or the
Exchange Offer Registration Statement;
provided that no such action described in this Section 9.01 shall materially
adversely affect the interests of the Certificateholders.
Section 9.02. Supplemental Agreements with Consent of
Certificateholders. With the consent of the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less
than a majority in interest in the Trust, by Direction of said
Certificateholders delivered to the Guarantor, the Company and the Trustee,
the Guarantor and the Company may (with the consent of the Owner Trustees, if
any, which consent shall not be unreasonably withheld), and the Trustee
(subject to Section 9.03) shall, enter into an agreement or agreements
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement, the
Intercreditor Agreement, the Registration Rights Agreement, the Escrow
Agreement, the Note Purchase Agreement, the Deposit Agreement or the Liquidity
Facility to the extent applicable to such Certificateholders or of modifying
in any manner the rights and obligations of such Certificateholders under this
Agreement, the Intercreditor Agreement, the Liquidity Facility, the
Registration Rights Agreement, the Escrow Agreement, the Deposit Agreement or
the Note Purchase Agreement; provided, however, that no such
51
supplemental agreement shall, without the consent of the Certificateholder of
each Outstanding Certificate affected thereby:
(1) reduce in any manner the amount of, or delay the timing of, any
receipt by the Trustee (or, with respect to the Deposits, the
Certificateholders) of payments on the Equipment Notes or other Trust
Property held in the Trust or on the Deposits or distributions that are
required to be made herein on any Certificate, or change any date of
payment on any Certificate, or change the place of payment where, or the
coin or currency in which, any Certificate is payable, or impair the
right to institute suit for the enforcement of any such payment or
distribution on or after the Regular Distribution Date or Special
Distribution Date applicable thereto; or
(2) permit the disposition of any Equipment Note included in the
Trust Property except as permitted by this Agreement, or otherwise
deprive such Certificateholder of the benefit of the ownership of the
Equipment Notes in the Trust; or
(3) alter the priority of distributions specified in the
Intercreditor Agreement; or
(4) modify any of the provisions of this Section or Section 6.05,
except to increase any such percentage or to provide that certain other
provisions of this Agreement cannot be modified or waived without the
consent of the Certificateholder of each Certificate affected thereby; or
(5) adversely affect the status of any Trust as a grantor trust
under Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle A of the
Internal Revenue Code of 1986, as amended, for U.S. federal income tax
purposes.
It shall not be necessary for any Direction of Certificateholders
under this Section to approve the particular form of any proposed supplemental
agreement but it shall be sufficient if such Direction shall approve the
substance thereof.
Section 9.03. Documents Affecting Immunity or Indemnity. If in the
opinion of the Trustee any document required to be executed by it pursuant to
the terms of Section 9.01 or 9.02 affects any interest, right, duty, immunity
or indemnity in favor of the Trustee under this Agreement, the Trustee may in
its discretion decline to execute such document.
Section 9.04. Execution of Supplemental Agreements. In executing, or
accepting the additional trusts created by, any supplemental agreement
permitted by this Article or the modifications thereby of the trust created by
this Agreement, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, written advice of counsel or an Opinion of Counsel
stating that the execution of such supplemental agreement is authorized or
permitted by this Agreement.
Section 9.05. Effect of Supplemental Agreements. Upon the execution
of any supplemental agreement under this Article, this Agreement shall be
modified in accordance therewith, and such supplemental agreement shall form a
part of this
52
Agreement for all purposes; and every Certificateholder theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.06. Conformity with Trust Indenture Act. Every
supplemental agreement executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.07. Reference in Certificates to Supplemental Agreements.
Certificates authenticated and delivered after the execution of any
supplemental agreement pursuant to this Article may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
agreement; and, in such case, suitable notation may be made upon Outstanding
Certificates after proper presentation and demand.
ARTICLE X
AMENDMENTS TO INDENTURES AND NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indentures and Other
Note Documents. In the event that the Trustee, as holder (or beneficial owner
through the Subordination Agent) of any Equipment Note in trust for the
benefit of the Certificateholders or as Controlling Party under the
Intercreditor Agreement, receives (directly or indirectly through the
Subordination Agent) a request for a consent to any amendment, modification,
waiver or supplement under any Indenture, any other Note Document, any
Equipment Note, the Note Purchase Agreement or any other related document, the
Trustee shall forthwith send a notice of such proposed amendment,
modification, waiver or supplement to each Certificateholder registered on the
Register as of the date of such notice. The Trustee shall request from the
Certificateholders a Direction as to (a) whether or not to take or refrain
from taking (or direct the Subordination Agent to take or refrain from taking)
any action which a holder of such Equipment Note has the option to direct, (b)
whether or not to give or execute (or direct
the Subordination Agent to give or execute) any waivers, consents, amendments,
modifications or supplements as a holder of such Equipment Note or a
Controlling Party and (c) how to vote (or direct the Subordination Agent to
vote) any Equipment Note if a vote has been called for with respect thereto.
Provided such a request for Certificateholder Direction shall have been made,
in directing any action or casting any vote or giving any consent as the
holder of any Equipment Note (or in directing the Subordination Agent in any
of the foregoing), (i) other than as Controlling Party, the Trustee shall vote
for or give consent to any such action with respect to such Equipment Note in
the same proportion as that of (A) the aggregate face amounts of all
Certificates actually voted in favor of or for giving consent to such action
by such Direction of Certificateholders to (B) the aggregate face amount of
all Outstanding Certificates and (ii) as Controlling Party, the Trustee shall
vote as directed in such Certificateholder Direction by the Crtificateholders
evidencing a Fractional Undivided Interest aggregating not less than a
majority in interest in the Trust. For purposes of the immediately preceding
sentence, a Certificate shall have been "actually voted" if the Holder of such
Certificate has delivered to the Trustee an instrument evidencing such
Holder's consent to such Direction prior to two Business Days before the
Trustee directs such action or casts such vote or gives such consent.
Notwithstanding the foregoing, but subject to Section 6.04 and the
Intercreditor Agreement, the Trustee may, in its own discretion and
53
at its own
direction, consent and notify the relevant Loan Trustee of such consent (or
direct the Subordination Agent to consent and notify the Loan Trustee of such
consent) to any amendment, modification, waiver or supplement under the
relevant Indenture, any other Note Document, any Equipment Note, the Note
Purchase Agreement or any other related document, if an Event of Default
hereunder shall have occurred and be continuing, or if such amendment,
modification, waiver or supplement will not materially adversely affect the
interests of the Certificateholders.
ARTICLE XI
TERMINATION OF TRUST
Section 11.01. Termination of the Trust. The respective obligations
and responsibilities of the Company, the Guarantor and the Trustee with
respect to the Trust shall terminate upon the earlier of (A) the completion of
the assignment, transfer and discharge described in the first sentence of the
immediately following paragraph and (B) distribution to all Holders of the
Certificates and the Trustee of all amounts required to be distributed to them
pursuant to this Agreement and the disposition of all property held as part of
the Trust Property; provided, however, that in no event shall the Trust
continue beyond one hundred ten (110) years following the date of the earliest
execution of this Agreement.
Upon the earlier of (i) the first Business Day following December
31, 2000, or, if later, the fifth Business Day following the Delivery Period
Termination Date and (ii) the fifth Business Day following the date on which a
Triggering Event occurs (such date, the "Transfer Date"), or, if later the
date on which all of the conditions set forth in the immediately following
sentence have been satisfied, the Trustee is hereby directed (subject only to
the immediately following sentence) to, and the Company shall direct the
institution that will serve as the Related Trustee under the Related Pass
Through Trust Agreement to, execute and deliver the Assignment and Assumption
Agreement, pursuant to which the Trustee shall assign, transfer and deliver
all of the Trustee's right, title and interest to the Trust Property to the
Related Trustee under the Related Pass Through Trust Agreement. The Trustee
and the Related Trustee shall execute and deliver the Assignment and
Assumption Agreement upon the satisfaction of the following conditions:
(i) The Trustee, the Related Trustee and each of the Rating Agencies
(as defined in the Intercreditor Agreement) then rating the Certificates
shall have received an Officer's Certificate and an Opinion of Counsel
dated the date of the Assignment and Assumption Agreement and each
satisfying the requirements of Section 1.02, which Opinion of Counsel
shall be substantially to the effect set forth below and may be relied
upon by the Beneficiaries (as defined in the Assignment and Assumption
Agreement):
(a) upon the execution and delivery thereof by the parties thereto
in accordance with the terms of this Agreement and the Related
Pass Through Trust Agreement, the Assignment and Assumption
Agreement will constitute the valid and binding obligation of
each of the parties thereto enforceable against each such party
in accordance with its terms (subject to applicable bankruptcy,
54
insolvency, reorganization, moratorium or similar laws
affecting creditor's rights generally and to general principles
of equity);
(b) upon the execution and delivery of the Assignment and
Assumption Agreement in accordance with the terms of this
Agreement and the Related Pass Through Trust Agreement, each of
the Certificates then Outstanding will be entitled to the
benefits of the Related Pass Through Trust Agreement;
(c) the Related Trust is not required to be registered as an
investment company under the Investment Company Act of 1940, as
amended;
(d) the Related Pass Through Trust Agreement constitutes the valid
and binding obligation of the Company enforceable against the
Company in accordance with its terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditor's rights generally and to general
principles of equity); and
(e) neither the execution and delivery of the Assignment and
Assumption Agreement in accordance with the terms of this
Agreement and the Related Pass Through Trust Agreement, nor the
consummation by the parties thereto of the transactions
contemplated to be consummated thereunder on the date thereof,
will violate any law or governmental rule or regulation of the
State of New York or the United States of America known to such
counsel to be applicable to the transactions contemplated by
the Assignment and Assumption Agreement.
(ii) The Trustee and the Company shall have received (x) a copy of
the articles of incorporation and bylaws of the Related Trustee certified
as of the Transfer Date by the Secretary or Assistant Secretary of such
institution and (y) a copy of the filing (including all attachments
thereto) made by the institution serving as the Related Trustee with the
Office of the Superintendent, State of New York Banking Department for
the qualification of the Related Trustee under Section 131(3) of the New
York Banking Law.
Upon the execution of the Assignment and Assumption Agreement by the parties
thereto, the Trust shall be terminated, the Certificateholders shall receive
beneficial interests in the Related Trust in exchange for their interests in
the Trust equal to their respective beneficial interests in the Trust, and the
Outstanding Certificates representing Fractional Undivided Interests in the
Trust shall be deemed for all purposes of this Agreement and the Related Pass
Through Trust Agreement, without further signature or action of any party or
Certificateholder, to be certificates representing the same fractional
undivided interests in the Related Trust and its trust property. By acceptance
of its Certificate, each Certificateholder consents to such assignment,
transfer and delivery of the Trust Property to the trustee of the Related
Trust upon the execution and delivery of the Assignment and Assumption
Agreement.
55
In connection with the occurrence of the event set forth in clause
(B) above, notice of such termination, specifying the Regular Distribution
Date (or Special Distribution Date, as the case may be) upon which the
Certificateholders may surrender their Certificates to the Trustee for payment
of the final distribution and cancellation, shall be mailed promptly, upon
notice to the Trustee, by the Trustee to Certificateholders not earlier than
the 60th day and not later than the 20th day next preceding such final
distribution specifying (A) the Regular Distribution Date (or Special
Distribution Date, as the case may be) upon which the proposed final payment
of the Certificates will be made upon presentation and surrender of
Certificates at the office or agency of the Trustee therein specified, (B) the
amount of any such proposed final payment, and (C) that the Record Date
otherwise applicable to such Regular Distribution Date (or Special
Distribution Date, as the case may be) is not applicable, payments being made
only upon presentation and surrender of the Certificates at the office or
agency of the Trustee therein specified. The Trustee shall give such notice to
the Registrar at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates in accordance with such notice,
the Trustee shall cause to be distributed to Certificateholders amounts
distributable on such final payments.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above- mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. No additional interest shall accrue on the Certificates after the
Regular Distribution Date (or Special Distribution Date, as the case may be).
In the event that any money held by the Trustee for the payment of
distributions on the Certificates shall remain unclaimed for two years (or
such lesser time as the Trustee shall be satisfied, after sixty days' notice
from the Company, is one month prior to the escheat period provided under
applicable law) after the final distribution date with respect thereto, the
Trustee shall pay to each Loan Trustee the appropriate amount of money
relating to such Loan Trustee and shall give written notice thereof to the
related Owner Trustees, Owner Participants and the Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement, or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations, and liabilities of the
parties hereto or any of them.
Section 12.02. Liabilities of Certificateholders. Neither the
existence of the Trust nor any provision in this Agreement is intended to or
shall limit the liability the Certificateholders would otherwise incur if the
Certificateholders owned Trust Property as co-owners, or incurred any
obligations of the Trust, directly rather than through the Trust.
56
Section 12.03. Certificates Nonassessable and Fully Paid. Subject to
Section 12.02, Certificateholders shall not be personally liable for
obligations of the Trust, the Fractional Undivided Interests represented by
the Certificates shall be nonassessable for any losses or expenses of the
Trust or for any reason whatsoever, and Certificates upon authentication
thereof by the Trustee pursuant to Section 3.03 are and shall be deemed fully
paid. No Certificateholder shall have any right (except as expressly provided
herein) to vote or in any manner otherwise control the operation and
management of the Trust Property, the Trust, or the obligations of the parties
hereto, nor shall anything set forth herein, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from
time to time as partners or members of an association.
Section 12.04. Notices. (a) Unless otherwise specifically provided
herein, all notices required under the terms and provisions of this Agreement
shall be in English and in writing, and any such notice may be given by United
States mail, courier service, telecopy (confirmed by telephone or in writing
in the case of notice by telecopy) or any other customary means of
communication, and any such notice shall be effective upon receipt, if to the
Company or the Guarantor, to:
American Trans Air, Inc.
0000 Xxxx Xxxxxxxxxx Xxxxxx
Indianapolis International Airport
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Executive Vice President and Chief Financial Officer
Facsimile: (000) 000-0000
if to the Trustee, to:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
(b) The Company, the Guarantor or the Trustee, by notice to the
other, may designate additional or different addresses for subsequent notices
or communications.
(c) Any notice or communication to Certificateholders shall be
mailed by first-class mail to the addresses for Certificateholders shown on
the Register kept by the Registrar and to addresses filed with the Trustee.
Failure so to mail a notice or communication or any defect in such notice or
communication shall not affect its sufficiency with respect to other
Certificateholders.
(d) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is conclusively presumed to have been
duly given, whether or not the addressee receives it.
57
(e) If the Company mails a notice or communication to the
Certificateholders, it shall mail a copy to the Trustee and to each Paying
Agent at the same time.
(f) Notwithstanding the foregoing, all communications or notices to
the Trustee shall be deemed to be given only when received by a Responsible
Officer of the Trustee.
(g) The Trustee shall promptly furnish the Company with a copy of
any demand, notice or written communication received by the Trustee hereunder
from any Certificateholder, Owner Trustee or Loan Trustee.
Section 12.05. Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN
THE STATE OF DELAWARE AND THIS AGREEMENT AND THE CERTIFICATES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.06. Severability of Provisions. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or the Trust or of
the Certificates or the rights of the Certificateholders thereof.
Section 12.07. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 12.08. Successors and Assigns. All covenants, agreements,
representations and warranties in this Agreement by the Trustee, the Guarantor
and the Company shall bind and, to the extent permitted hereby, shall inure to
the benefit of and be enforceable by their respective successors and assigns,
whether so expressed or not.
Section 12.09. Benefits of Agreement. Nothing in this Agreement or
in the Certificates, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, and the Certificateholders,
any benefit or any legal or equitable right, remedy or claim under this
Agreement.
Section 12.10. Legal Holidays. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate
shall not be a Business Day, then (notwithstanding any other provision of this
Agreement) payment need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on such
Regular Distribution Date or Special Distribution Date, and no interest shall
accrue during the intervening period.
Section 12.11. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be
58
deemed to be an original, and all of which counterparts shall constitute but
one and the same instrument.
Section 12.12. Communication by Certificateholders with Other
Certificateholders. Certificateholders may communicate with other
Certificateholders with respect to their rights under this Agreement or the
Certificates pursuant to Section 3.12(b) of the Trust Indenture Act. The
Company, the Guarantor, the Trustee and any and all other persons benefited by
this Agreement shall have the protection afforded by Section 312(c) of the
Trust Indenture Act.
Section 12.13. Intention of Parties. The parties hereto intend that
the Trust be classified for U.S. federal income tax purposes as a grantor
trust under Subpart E, Part I of Subchapter J of the Internal Revenue Code of
1986, as amended, and not as a trust or association taxable as a corporation
or as a partnership. Each Certificateholder, by its acceptance of its
Certificate or a beneficial interest therein, agrees to treat the Trust as a
grantor trust for all U.S. federal, state and local income tax purposes. The
powers granted and obligations undertaken pursuant to this Agreement shall be
so construed so as to further such intent.
59
IN WITNESS WHEREOF, the Guarantor, the Company and the Trustee have
caused this Agreement to be duly executed by their respective officers, all as
of the day and year first written above.
AMTRAN, INC.,
by
------------------------------
Executive Vice President and
Chief Financial Officer
AMERICAN TRANS AIR, INC.,
by
------------------------------
Chief Financial Officer
WILMINGTON TRUST COMPANY, as Trustee,
by
------------------------------
Title:
EXHIBIT A
FORM OF CERTIFICATE
REGISTERED
No.________
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS CERTIFICATE IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (2) AGREES THAT IT WILL NOT, WITHIN TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE LAST DATE ON WHICH THIS
CERTIFICATE WAS HELD BY AMERICAN TRANS AIR, INC., ("ATA") OR AN AFFILIATE OF
ATA RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A) TO ATA OR ANY
SUBSIDIARY THEREOF,(B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING $100,000 OR
MORE AGGREGATE PRINCIPAL AMOUNT OF SUCH CERTIFICATES THAT, TAKES DELIVERY OF
THIS CERTIFICATE IN DEFINITIVE FORM AND PRIOR TO SUCH TRANSFER, FURNISHES TO
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS CERTIFICATE (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CASE THIS CERTIFICATE IS IN
DEFINITIVE FORM, IN CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE WITHIN
TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE
LAST DATE ON WHICH THIS CERTIFICATE WAS HELD BY ATA OR AN AFFILIATE OF ATA,
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT. THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
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TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.]1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL CERTIFICATE SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 3.05 AND 3.06 OF THE PASS THROUGH TRUST AGREEMENT REFERRED TO HEREIN
.]2
--------
1 Not to be included on the face of the Offshore Global Certificate or any
Offshore Physical Certificates.
2 To be included on the face of each Global Certificate.
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AMERICAN TRANS AIR, INC. 2000-1C-O PASS THROUGH TRUST
Pass Through
Certificate, Series 2000-1C-O
Issuance Date: February 15, 2000
Final Legal Distribution Date: July 15, 2007
Evidencing a Fractional Undivided Interest in the 2000-1C-O Trust,
the Property of Which Includes Certain Equipment Notes each secured
by Aircraft leased to American Trans Air, Inc.
$36,740 Fractional Undivided Interest representing 0.00002721829%
of the Trust per $1,000 of Reference Principal Amount
THIS CERTIFIES THAT Cede & Co., for value received, is the
registered owner of a Fractional Undivided Interest in the amount of
$36,740,000 (Thirty six million seven hundred forty thousand dollars) (the
"Reference Principal Amount") in the American Trans Air 2000-1C-O Pass Through
Trust (the "Trust") pursuant to a Pass Through Trust Agreement dated as of
February 15, 2000 (the "Agreement"), among Wilmington Trust Company, not in
its individual capacity but solely as trustee (the "Trustee"), Amtran, Inc., a
corporation incorporated under Indiana law (the "Guarantor"), and American
Trans Air, Inc., a corporation incorporated under Indiana law (the "Company"),
a summary of certain of the pertinent provisions of which is set forth below.
To the extent not otherwise defined herein, the capitalized terms used herein
have the meanings assigned to them in the Agreement. This Certificate is one
of the duly authorized Certificates designated as "Pass Through Certificates,
Series 2000-1C-O" (herein called the "Certificates"). This Certificate is
issued under and is subject to the terms, provisions, and conditions of the
Agreement and the Intercreditor Agreement, to which agreements the
Certificateholder of this Certificate by virtue of the acceptance hereof
assents and by which such Certificateholder is bound. The property of the
Trust includes certain Equipment Notes and all rights of the Trust to receive
any payments under the Intercreditor Agreement and the Liquidity Facility (the
"Trust Property"). Each issue of the Equipment Notes is secured by a security
interest in The Aircraft leased to the Company.
Each of the Certificates represents a fractional undivided interest
in the Trust and the Trust Property, and has no rights, benefits or interest
in respect of any assets or property other than the Trust Property. The
undivided percentage interest in the Trust represented by each of this
Certificate (as specified above) and the other Pass Through Certificates,
Series 2000-1C-O, was determined on the basis of (x) the aggregate of the
Reference Principal Amount of this Certificate (as specified above) and of the
other Pass Through Certificates, Series 2000-1C-O and (y) the aggregate
original principal amounts of the Equipment Notes constituting the Trust
Property.
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Subject to and in accordance with the terms of the Agreement and the
Intercreditor Agreement, from funds then available to the Trustee, there will
be distributed on each January 15, April 15, July 15 and October 15 (a
"Regular Distribution Date"), commencing April 15, 2000, to the Person in
whose name this Certificate is registered at the close of business on the 15th
day preceding the Regular Distribution Date, an amount in respect of the
Scheduled Payments on the Equipment Notes due on such Regular Distribution
Date, the receipt of which has been confirmed by the Trustee, equal to the
product of the percentage interest in the Trust evidenced by this Certificate
and an amount equal to the sum of such Scheduled Payments. Subject to and in
accordance with the terms of the Agreement and the Intercreditor Agreement, in
the event that Special Payments on the Equipment Notes are received by the
Trustee, from funds then available to the Trustee, there shall be distributed
on the applicable Special Distribution Date, to the Person in whose name this
Certificate is registered at the close of business on the 15th day preceding
the Special Distribution Date, an amount in respect of such Special Payments
on the Equipment Notes, the receipt of which has been confirmed by the
Trustee, equal to the product of the percentage interest in the Trust
evidenced by this Certificate and an amount equal to the sum of such Special
Payments so received. If a Regular Distribution Date or Special Distribution
Date is not a Business Day, distribution shall be made on the immediately
following Business Day with the same force and effect as if made on such
Regular Distribution Date or Special Distribution Date and no interest shall
accrue during the intervening period. The Trustee shall mail notice of each
Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Trustee by
check mailed to the Person entitled thereto, without the presentation or
surrender of this Certificate or the making of any notation hereon. Except as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after notice mailed by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency of the Trustee specified
in such notice.
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, the Guarantor, the Company or the
Trustee or any affiliate thereof. The Certificates are limited in right of
payment, all as more specifically set forth on the face hereof and in the
Agreement. All payments or distributions made to Certificateholders under the
Agreement shall be made only from the Trust Property and only to the extent
that the Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of the Agreement.
Each Certificateholder of this Certificate, by its acceptance hereof, agrees
that it will look solely to the income and proceeds from the Trust Property to
the extent available for distribution to such Certificateholder as provided in
the Agreement. This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby. A copy of the Agreement may be examined during normal business hours
at the principal office of the Trustee, and at such other places, if any,
designated by the Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Certificateholders under the Agreement at any
time by the
A-2
Guarantor, the Company and the Trustee with the consent of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust. Any
such consent by the Certificateholder of this Certificate shall be conclusive
and binding on such Certificateholder and upon all future Certificateholders
of this Certificate and of any Certificate issued upon the transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of such consent
is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the
Certificateholders of any of the Certificates.
As provided in the Agreement and subject to certain limitations set
forth, the transfer of this Certificate is registrable in the Register upon
surrender of this Certificate for registration of transfer at the offices or
agencies maintained by the Trustee in its capacity as Registrar, or by any
successor Registrar duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Registrar, duly executed
by the Certificateholder hereof or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates of
authorized denominations evidencing the same aggregate Fractional Undivided
Interest in the Trust will be issued to the designated transferee or
transferees.
[The Holder of this Certificate is entitled to the benefits of the
Exchange and Registration Rights Agreement, dated as of February 15, 2000,
among the Company, the Trustee and the Initial Purchasers named therein (the
"Registration Rights Agreement"). In the event that no Registration Event has
occurred on or prior to the 210th day after the date of the issuance of the
Certificates, the interest rate per annum payable in respect of the Equipment
Notes and the Deposits shall be increased by 0.50%, from and including the
210th day after the Issuance Date to but excluding the earlier of (i) the date
on which a Registration Event occurs and (ii) the date on which there cease to
be any Registrable Certificates (as defined in the Registration Rights
Agreement). In the event that the Shelf Registration Statement ceases to be
effective at any time during the period specified by Section 2(b)(B) of the
Registration Rights Agreement for more than 60 days, whether or not
consecutive, during any 12-month period, the interest rate per annum payable
in respect of the Equipment Notes and the Deposits shall be increased by 0.50%
from the 61st day of the applicable 12-month period such Shelf Registration
Statement ceases to be effective until such time as the Shelf Registration
Statement again becomes effective (or, if earlier, the end of the period
specified by Section 2(b)(B) of the Registration Rights Agreement).]*
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $1,000 Fractional Undivided
Interest and integral multiples of $1,000 in excess thereof, except that one
Certificate may be issued in a denomination of less than $1,000. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same aggregate Fractional Undivided Interest in the Trust, as
requested by the Certificateholder surrendering the same.
Any person acquiring or accepting this Certificate or an interest
herein will, by such acquisition or acceptance, be deemed to have represented
and warranted to
--------
* To be included only on each Initial Certificate.
A-3
and for the benefit of each Owner Participant and the Company that either: (i)
the assets of an employee benefit plan subject to Title I of the Employment
Retirement Income Security Act of 1974, as amended ("ERISA"), or of a plan
subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code"), have not been used to purchase this Certificate or interest herein
are exempt from the prohibited transaction restrictions of ERISA and the Code
pursuant to one or more prohibited transaction or statutory exemptions.
Each Certificateholder or Investor that is not a United States
person within the meaning of Section 7701(a)(30) of the Internal Revenue Code,
as amended, by its acceptance of a Certificate or a beneficial interest
therein, agrees to indemnify and hold harmless the Trust and the Trustee from
and against any improper failure to withhold taxes from amounts payable to it
or for its benefit. Each Certificateholder and Investor, by its acceptance of
this Certificate or a beneficial interest herein, agrees to treat the Trust as
a grantor trust for all U.S. federal, state and local income tax purposes.
Except as otherwise provided in the Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after
notice mailed by the Trustee of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency of
the Trustee specified in such notice.
Under certain circumstances set forth in Section 11.01 of the
Agreement, all of the Trustee's right, title and interest to the Trust
Property may be assigned, transferred and delivered to the Related Trustee of
the Related Trust pursuant to the Assignment and Assumption Agreement. Upon
the effectiveness of such Assignment and Assumption Agreement (the
"Transfer"), the Trust shall be terminated, the Certificateholders shall
receive beneficial interests in the Related Trust in exchange for their
interests in the Trust equal to their respective beneficial interests in the
Trust, the Certificates representing Fractional Undivided Interests in the
Trust shall be deemed for all purposes of the Agreement and the Related Pass
Through Trust Agreement to be certificates representing the same fractional
undivided interests in the Related Trust and its trust property. Each
Certificateholder, by its acceptance of this Certificate or a beneficial
interest herein, agrees to be bound by the Assignment and Assumption Agreement
and subject to the terms of the Related Pass Through Trust Agreement as a
certificateholder thereunder. From and after the Transfer, unless and to the
extent the context otherwise requires, references herein to the Trust, the
Agreement and the Trustee shall constitute references to the Related Trust,
the Related Pass Through Trust Agreement and trustee of the Related Trust,
respectively.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee shall require payment by the Holder of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Trustee, the Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and
the Trust created thereby shall terminate upon the distribution to
Certificateholders of all
A-4
amounts required to be distributed to them pursuant to the Agreement and the
disposition of all property held as part of the Trust Property.
UNTIL THE TRANSFER, THE AGREEMENT AND THIS CERTIFICATE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS. FROM AND AFTER THE TRANSFER, THE
AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement or be valid for any purpose.
All payments or distributions made to Certificateholders shall be
made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property to make such
payments in accordance with the terms of Article IV of this Agreement. Each
Certificateholder, by its acceptance of a Certificate, agrees that it will
look solely to the income and proceeds from the Trust Property to the extent
available for distribution to such Certificateholder as provided in this
Agreement.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
AMERICAN TRANS AIR, INC.,
PASS THROUGH TRUST, SERIES 2000-1C-O
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely
as Trustee
--------------------------------
Title:
Dated:
----------
[Attest:
-----------------------
Authorized signature]
A-5
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred to
in the within-mentioned Agreement.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Trustee
By: __________________________
Authorized Officer
A-6
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
[Insert Taxpayer Identification No.]
----------------------------------
--------------------------------
--------------------------------
please print or typewrite name and address including zip code of assignee
------------------------------------------------------------------------------
the within Certificate and all rights thereunder, hereby irrevocably
constituting and
------------------------------------------------------------------------------
appointing attorney to transfer said Certificate on the books of the Trustee
with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL U.S. PHYSICAL CERTIFICATES]
In connection with any transfer of this Certificate occurring prior
to the date that is the earlier of the date of an effective Registration
Statement or [ ________ ], the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
[ ] (a) this Certificate is being transferred in compliance
with the exemption from registration under the Securities
Act of 1933, as amended, provided by Rule 144A thereunder.
or
[ ] (b) this Certificate is being transferred other than in
accordance with (a) above and documents are being furnished
that comply with the conditions of transfer set forth in
this Certificate and the Agreement.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Certificate in the name of any Person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 3.06 of the Agreement
shall have been satisfied.
A-7
Date: [Name of Transferor]
------------ --------------------
NOTE: The signature must
correspond with the name as
written upon the face of the
within- mentioned instrument in
every particular, without
alteration or any change
whatsoever.
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Certificate for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, as amended, and is aware that the sale to it is being
made in reliance on Rule 144A and has been advised of the applicable transfer
restrictions relating to the Certificates and acknowledges that it has
received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
[Name of Transferee]
Dated:
------------
-----------------------------------------------
NOTE: To be executed by an executive officer.
A-8
EXHIBIT B
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
[date]
Wilmington Trust Company,
not in its individual
capacity but solely as Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
AMERICAN TRANS AIR
PASS-THROUGH TRUST, SERIES 2000-1C-S (the "Trust")
Pass Through Certificates, Series 2000-1C-S
(the "Certificates")
Sirs:
In connection with our proposed sale of $[ ] Fractional Undivided
Interest of the Certificates, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended, and, accordingly, we represent that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are applicable
thereto, we confirm
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that such sale has been made in accordance with the applicable provisions of
Rule 903(c)(3) or Rule 904(c)(1), as the case may be.
You and American Trans Air, Inc. are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
Authorized Signature
B-2
EXHIBIT C
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
[date]
Wilmington Trust Company,
not in its individual capacity
but solely as Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
American Trans Air, Inc.
0000 Xxxx Xxxxxxxxxx Xxxxxx
Indianapolis International Airport
Xxxxxxxxxxxx, Xxxxxxx 00000
AMERICAN TRANS AIR
PASS-THROUGH TRUST, SERIES 2000-1C-S (the "Trust")
Pass Through Certificates, Series 2000-1C-S
(the "Certificates")
Ladies and Gentlemen:
In connection with our proposed purchase of US$[ ] Fractional
Undivided Interest of Certificates, we confirm that:
1. We understand that any subsequent transfer of the Certificates is
subject to certain restrictions and conditions set forth in the Pass
Through Trust Agreement dated as of February 15, 2000 relating to the
Certificates (the "Pass Through Trust Agreement") and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer
the Certificates except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities
Act").
2. We are purchasing Certificates having an aggregate principal
amount of not less than $1,000 and each account (if any) for which we are
purchasing Certificates is purchasing Certificates having an aggregate
principal amount of not less than $1,000.
3. We understand that the Certificates have not been registered
under the Securities Act, that the Certificates are being sold to us in a
transaction that is exempt from the registration requirements of the
securities Act and that the Certificates may not be offered or sold
except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell any Certificate within two
years after the later of the original issuance of such certificate and
the last date on which such Certificate is owned by the Company, the
Trustee or any affiliate of any such persons, we will do so only (A) in
accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined therein), (B) to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
C-1
furnishes to you and American Trans Air, Inc., a signed letter
substantially in the form of this letter, (C) outside the United States
in accordance with Rule 904 of Regulation S under the Securities Act, (D)
pursuant to the exemption from registration provided by Rule 144 under
the Securities Act, or (E) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to
any person purchasing any of the Certificates from us a notice advising
such purchaser that resales of the Certificates are restricted as stated
herein. We further understand that the Certificates purchased by us will
bear a legend to the foregoing effect.
4. We understand that, on any proposed resale of any Certificates,
we will be required to furnish to you and American Trans Air, Inc. such
certifications, legal opinions and other information as you and American
Trans Air, Inc. may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the
Certificates purchased by us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of our investment in the
Certificates and we and any accounts for which we are acting are each
able to bear the economic risk of our or their investments.
6. We are acquiring the Certificates purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion and not with a view to any distribution of the Certificates,
subject, nevertheless to the understanding that the disposition of our
property shall at all times be and remain within our control.
You and American Trans Air, Inc. are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
Very truly yours,
By: _______________________
[Name of Transferee]
Authorized Signature
C-2
EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
American Trans Air 2000-1C Pass
Through Trust
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated [ ], (the "Agreement"),
between Wilmington Trust Company, a Delaware banking corporation ("WTC"), not
in its individual capacity but solely as trustee under the Pass Through Trust
Agreement dated as of February 15, 2000 (as amended, modified or otherwise
supplemented from time to time, the "Pass Through Trust Agreement") in respect
of the American Trans Air 2000-1C-O Pass Through Trust (the "Assignor"), and
Wilmington Trust Company, a Delaware banking corporation, not in its
individual capacity but solely as trustee under the Pass Through Trust
Agreement dated as of February 15, 2000 (the "New Pass Through Trust
Agreement") in respect of the American Trans Air 2000-1C-S Pass Through Trust
(the "Assignee").
W I T N E S S E T H:
WHEREAS, the parties hereto desire to effect on the date hereof (the
"Transfer Date") (a) the transfer by the Assignor to the Assignee of all of
the right, title and interest of the Assignor in, under and with respect to,
among other things, the Trust Property and each of the documents listed in
Schedule I hereto (the "Scheduled Documents") and (b) the assumption by the
Assignee of the obligations of the Assignor (i) under the Scheduled Documents
and (ii) in respect of the Certificates issued under the Pass Through Trust
Agreement; and
WHEREAS, the Scheduled Documents permit such transfer upon
satisfaction of certain conditions heretofore or concurrently herewith being
complied with;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto do hereby agree
as follows (capitalized terms used herein without definition having the
meaning ascribed thereto in the Pass Through Trust Agreement):
1. Assignment. The Assignor does hereby sell, assign, convey,
transfer and set over unto the Assignee as of the Transfer Date all of its
present and future right, title and interest in, under and with respect to the
Trust Property and the Scheduled Documents and each other contract, agreement,
document or instrument relating to the Trust Property or the Scheduled
Documents (such other contracts, agreements, documents or instruments,
together with the Scheduled Documents, to be referred to as the "Assigned
Documents"), and any proceeds therefrom, together with all documents and
instruments evidencing any of such right, title and interest.
2. Assumption. The Assignee hereby assumes for the benefit of the
Assignor and each of the parties listed in Schedule II hereto (collectively,
the "Beneficiaries") all of the duties and obligations of the Assignor,
whenever accrued, pursuant to the Assigned Documents and hereby confirms that
it shall be deemed a party to each of the Assigned Documents to which the
Assignor is a party and shall be bound by all the terms thereof (including the
agreements and obligations of the Assignor set forth therein) as if therein
named as the Assignor. Further, the Assignee hereby assumes for the benefit of
the Assignor and the Beneficiaries all of the duties and obligations of the
Assignor under the Outstanding Certificates and hereby confirms that the
Certificates representing Fractional Undivided Interests under the Pass
Through Trust Agreement shall be deemed for all purposes of the Pass Through
Trust Agreement and the New
D-1
Pass Through Trust Agreement to be certificates representing the same
fractional undivided interests under the New Pass Through Trust Agreement
equal to their respective beneficial interests in the trust created under the
Pass Through Trust Agreement.
3. Effectiveness. This Agreement shall be effective upon the
execution and delivery hereof by the parties hereto, and each
Certificateholder, by its acceptance of its Certificate or a beneficial
interest therein, agrees to be bound by the terms of this Agreement.
4. Payments. The Assignor hereby covenants and agrees to pay over to
the Assignee, if and when received following the Transfer Date, any amounts
(including any sums payable as interest in respect thereof) paid to or for the
benefit of the Assignor that, under Section 1 hereof, belong to the Assignee.
5. Further Assurances. The Assignor shall, at any time and from time
to time, upon the request of the Assignee, promptly and duly execute and
deliver any and all such further instruments and documents and take such
further action as the Assignee may reasonably request to obtain the full
benefits of this Agreement and of the right and powers herein granted. The
Assignor agrees to deliver the Global Certificates, and all Trust Property, if
any, then in the physical possession of the Assignor, to the Assignee.
6. Representations and Warranties. (a) The Assignee represents and
warrants to the Assignor and each of the Beneficiaries that:
(i) it has all requisite power and authority and legal right to
enter into and carry out the transactions contemplated hereby and to
carry out and perform the obligations of the "Pass Through Trustee" under
the Assigned Documents;
(ii) on and as of the date hereof, the representations and
warranties of the Assignee set forth in Section 7.14 of the New Pass
Through Trust Agreement are true and correct.
(b) The Assignor represents and warrants to the Assignee that:
(i) it is duly incorporated, validly existing and in good standing
under the laws of the State of Delaware and has the full trust power,
authority and legal right under the laws of the State of Delaware and the
United States pertaining to its trust and fiduciary powers to execute and
deliver this Agreement;
(ii) the execution and delivery by it of this Agreement and the
performance by it of its obligations hereunder have been duly authorized
by it and will not violate its articles of association or by-laws or the
provisions of any indenture, mortgage, contract or other agreement to
which it is a party or by which it is bound; and
(iii) this Agreement constitutes the legal, valid and binding
obligations of it enforceable against it in accordance with its terms,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity, whether
considered in a proceeding at law or in equity.
7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF
D-2
NEW YORK, INCLUDING MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
8. Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute a single instrument. It
shall not be necessary that any counterpart be signed by both parties so long
as each party shall sign at least one counterpart.
9. Third Party Beneficiaries. The Assignee hereby agrees, for the
benefit of the Beneficiaries, that its representations, warranties and
covenants contained herein are also intended to be for the benefit of each
Beneficiary, and each Beneficiary shall be deemed to be an express third party
beneficiary with respect thereto, entitled to enforce directly and in its own
name any rights or claims it may have against such party as such beneficiary.
10. Limitation of Trustee Liability. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and delivered
by Wilmington Trust Company, not individually or personally but solely as
Trustee, in the exercise of the powers and authority conferred and vested in
it in such capacity, (b) each of the representations, undertakings and
agreements herein made on the part of the Trustee is made and intended not as
personal representations, undertakings and agreements by Wilmington Trust
Company but is made for the purpose of binding only the Trustee and (c) under
no circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Trustee or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Trustee under this Agreement or any related documents.
D-3
IN WITNESS WHEREOF, the parties hereto, through their respective
officers thereunto duly authorized, have duly executed this Assignment as of
the day and year first above written.
ASSIGNOR:
WILMINGTON TRUST COMPANY,
not in its individual
capacity but solely as
trustee under the Pass
Through Trust Agreement
in respect of the
American Trans Air
2000-1C-O Pass Through
Trust
By:___________________________
Name:
Title:
ASSIGNEE:
WILMINGTON TRUST COMPANY,
not in its individual
capacity but solely as
trustee under the Pass
Through Trust Agreement
in respect of the
American Trans Air
2000-1C-S Pass Through
Trust
By:___________________________
Name:
Title:
D-4
Schedule I
Schedule of Assigned Documents
(1) Intercreditor Agreement dated as of February 15, 2000 among the Trustee,
the Other Trustees, the Liquidity Providers, the liquidity providers, if
any, relating to the Certificates issued under (and as defined in) each
of the Other Pass Through Trust Agreements and the Subordination Agent.
(2) Registration Rights Agreement dated as of February 15, 2000 among the
Initial Purchasers, the Trustee and the Company.
(3) Escrow and Paying Agent Agreement (Class C) dated as of February 15, 2000
among the Escrow Agent, the Initial Purchasers, the Trustee and the
Paying Agent.
(4) Note Purchase Agreement dated as of February 15, 2000 among the Company,
the Trustee, the Other Trustees, the Depositary, the Escrow Agent, the
Paying Agent and the Subordination Agent.
(5) Deposit Agreement (Class C) dated as of February 15, 2000 between the
Escrow Agent and the Depositary.
(6) Each of the Operative Documents (as defined in the Participation
Agreement for each Aircraft) in effect as of the Transfer Date.
Schedule II
Schedule of Beneficiaries
Wilmington Trust Company, not in its individual capacity but solely as
Subordination Agent.
Wilmington Trust Company, not in its individual capacity but
solely as Paying Agent
Citibank, N.A., as Liquidity Provider
Amtran, Inc.
American Trans Air, Inc.
Xxxxxxx Xxxxx Xxxxxx, as Initial Purchaser
Xxxxxx Xxxxxxx & Co. Incorporated, as Initial Purchaser
Chase Securities Inc., as Initial Purchaser
Banc One Capital Markets, Inc., as Initial Purchaser
First Security Bank, National Association, as Escrow Agent
Ambac Assurance Corporation, as Policy Provider
Each of the other parties to the Assigned Documents
EXHIBIT E
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS TO QIBs
[date]
Wilmington Trust Company,
not in its individual
capacity but solely as Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
AMERICAN TRANS AIR
PASS-THROUGH TRUST, SERIES 2000-1C-S (the "Trust")
Pass Through Certificates, Series 2000-1C-S
(the "Certificates")
Ladies and Gentlemen:
In connection with our proposed sale of $[ ] Fractional Undivided
Interest of the Certificates, we confirm that without utilizing any general
solicitation or general advertising that such Certificates are being
transferred in compliance with the exemption from registration under the
Securities Act of 1933, as amended, provided by Rule 144A thereunder.
Date: [Name of Transferor
NOTE: The signature must
correspond with the name
as written upon the face
of the within-mentioned
Certificate in every
particular, without
alteration or any change
whatsoever.
Signature Guarantee:
E-1
TO BE COMPLETED BY PURCHASER:
The undersigned represents and warrants that it is purchasing the
within-mentioned Certificate for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such account
is a "qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, as amended, and is aware that the sale to it is being
made in reliance on Rule 144A and has been advised of the applicable transfer
restrictions relating to the Certificates and acknowledges that it has
received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
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NOTE: To be executed by an executive officer.
E-2
