1
EXHIBIT 4(a)
PASS THROUGH TRUST AGREEMENT
Dated as of [ ], 1999
between
AMERICAN AIRLINES, INC.
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee
2
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 .................. 12
Section 1.04. Directions of Certificateholders ........................ 13
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES:
ACQUISITION OF TRUST PROPERTY
Section 2.01. Amount Unlimited; Issuable in Series .................... 15
Section 2.02. Acquisition of Equipment Notes .......................... 17
Section 2.03. Acceptance by Trustee .................................. 19
Section 2.04. Limitation of Powers .................................... 20
ARTICLE III
THE CERTIFICATES
Section 3.01. Form, Denomination and Execution of Certificates ........ 20
Section 3.02. Authentication of Certificates .......................... 21
Section 3.03. Temporary Certificates .................................. 21
Section 3.04. Transfer and Exchange ................................... 21
Section 3.05. Book-Entry and Definitive Certificates .................. 22
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates ....... 24
Section 3.07. Persons Deemed Owners ................................... 25
Section 3.08. Cancellation ............................................ 25
Section 3.09. Limitation of Liability for Payments .................... 25
Section 3.10. CUSIP Numbers ........................................... 26
i
3
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account ........ 26
Section 4.02. Distributions from Certificate Account and Special
Payments Account ............................... 27
Section 4.03. Statements to Certificateholders ........................ 29
Section 4.04. Investment of Special Payment Moneys .................... 30
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence ...................... 30
Section 5.02. Consolidation, Merger, Etc. ............................. 30
ARTICLE VI
DEFAULT
Section 6.01. Indenture Events of Default and Triggering Events ....... 31
Section 6.02. Incidents of Sale of Equipment Notes .................... 33
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee
May Bring Suit ................................. 33
Section 6.04. Control by Certificateholders ........................... 34
Section 6.05. Waiver of Past Defaults ................................. 34
Section 6.06. Right of Certificateholders to Receive Payments Not
to Be Impaired ................................. 35
Section 6.07. Certificateholders May Not Bring Suit Except Under
Certain Conditions ............................. 35
Section 6.08. Remedies Cumulative ..................................... 36
Section 6.09. Discontinuance of Proceedings ........................... 36
Section 6.10. Undertaking for Costs ................................... 37
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities ..................... 37
Section 7.02. Notice of Defaults ...................................... 38
Section 7.03. Certain Rights of Trustee ............................... 38
Section 7.04. Not Responsible for Recitals or Issuance of Certificates. 39
Section 7.05. May Hold Certificates ................................... 40
Section 7.06. Money Held in Trust ..................................... 40
ii
4
Section 7.07. Compensation and Reimbursement .......................... 40
Section 7.08. Corporate Trustee Required; Eligibility ................. 41
Section 7.09. Resignation and Removal; Appointment of Successor ....... 42
Section 7.10. Acceptance of Appointment by Successor .................. 44
Section 7.11. Merger, Conversion, Consolidation or Succession to
Business ....................................... 44
Section 7.12. Maintenance of Agencies ................................. 45
Section 7.13. Money for Certificate Payments to be Held in Trust ...... 46
Section 7.14. Registration of Equipment Notes in Trustee's Name ....... 46
Section 7.15. Representations and Warranties of Trustee ............... 47
Section 7.16. Withholding Taxes; Information Reporting ................ 48
Section 7.17. Trustee's Liens ......................................... 48
Section 7.18. Preferential Collection of Claims ....................... 48
Section 7.19. Capacity in Which Acting ................................ 49
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and
Addresses of Certificateholders ................ 49
Section 8.02. Preservation of Information; Communications to
Certificateholders ............................. 49
Section 8.03. Reports by Trustee ...................................... 49
Section 8.04. Reports by the Company .................................. 49
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders ............................. 50
Section 9.02. Supplemental Agreements with Consent of
Certificateholders ............................. 52
Section 9.03. Documents Affecting Immunity or Indemnity ............... 53
Section 9.04. Execution of Supplemental Agreements .................... 54
Section 9.05. Effect of Supplemental Agreements ....................... 54
Section 9.06. Conformity with Trust Indenture Act ..................... 54
Section 9.07. Reference in Certificates to Supplemental Agreement ..... 54
ARTICLE X
AMENDMENTS TO INDENTURES AND OTHER NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indentures and Other
Note Documents ................................. 54
iii
5
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01. Termination of the Trusts ............................. 55
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders ............ 56
Section 12.02. Certificates Nonassessable and Fully Paid ............. 57
Section 12.03. Registration of Equipment Notes in Name of
Subordination Agent ............................ 57
Section 12.04. Notices ............................................... 57
Section 12.05. Governing Law ......................................... 58
Section 12.06. Severability of Provisions ............................ 58
Section 12.07. Trust Indenture Act Controls .......................... 59
Section 12.08. Effect of Headings and Table of Contents .............. 59
Section 12.09. Successors and Assigns ................................ 59
Section 12.10. Benefits of Agreement ................................. 59
Section 12.11. Legal Holidays ........................................ 59
Section 12.12. Counterparts .......................................... 59
Section 12.13. Communication by Certificateholders with Other
Certificateholders ............................. 60
Section 12.14. Normal Commercial Relations ........................... 60
Section 12.15. No Recourse Against Others ............................ 60
EXHIBIT A - Form of Certificate ........................................... A-1
iv
6
Reconciliation and tie between American Airlines Pass Through Trust Agreement,
dated as of [], 1998 and the Trust Indenture Act of 1939. This reconciliation
does not constitute part of the Pass Through Trust Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
------------------- ------------------
310(a)(1) 7.08
(a)(2) 7.08
312(a) 7.12; 8.01; 8.02
313(a) 8.03
313(b) 8.03
314(a)(1)-(3) 8.04(a)-(c)
(a)(4) 8.04(d)
(c)(1) 1.02
(c)(2) 1.02
(d)(1) 1.02; 7.13; 11.01
(d)(2) 1.02; 7.13; 11.01
(d)(3) 1.02; 2.01
(e) 1.02
315(b) 7.02
315(c) 7.01(b)
316(a)(last sentence) 1.04(c)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(d)
317(a)(1) 6.03
(b) 7.13
318(a) 12.07
v
7
PASS THROUGH TRUST AGREEMENT
This PASS THROUGH TRUST AGREEMENT, dated as of [], 1999 (the "Basic
Agreement"), between American Airlines, Inc., a Delaware corporation, and State
Street Bank and Trust Company of Connecticut, National Association, a national
banking association, as Trustee, is made with respect to the formation from
time to time of separate American Airlines Pass Through Trusts, and the
issuance from time to time of separate series of Pass Through Certificates
representing fractional undivided interests in the respective Trusts.
W I T N E S S E T H:
WHEREAS, from time to time, the Company and the Trustee may enter into
a Trust Supplement (this and certain other defined terms used herein are
defined in Section 1.01) pursuant to which the Trustee shall declare the
creation of a separate Trust for the benefit of the Holders of the series of
Certificates to be issued in respect of such Trust, and the initial Holders of
the Certificates of such series, as the grantors of such Trust, by their
respective acceptances of the Certificates of such series, shall join in the
creation of such Trust with the Trustee;
WHEREAS, all Certificates to be issued in respect of each separate
Trust will be issued as a separate series pursuant to this Agreement, will
evidence fractional undivided interests in such Trust and will have no rights,
benefits or interests in respect of any other separate Trust or the property
held therein, subject, however, to the provisions of any Intercreditor
Agreement to which one or more Trusts may be a party and to any provisions to
the contrary in any applicable Trust Supplement;
WHEREAS, from time to time, pursuant to the terms and conditions of
this Agreement with respect to each separate Trust formed hereunder, the
Trustee on behalf of such Trust shall purchase one or more issues of Equipment
Notes having the identical interest rate as, and final maturity dates not later
than the final Regular Distribution Date of, the series of Certificates issued
in respect of such Trust and, subject to the terms of any related Intercreditor
Agreement and to any terms to the contrary in any applicable Trust Supplement,
shall hold such Equipment Notes in trust for the benefit of the
Certificateholders of such Trust;
WHEREAS, to facilitate the sale of Equipment Notes to, and the
purchase of Equipment Notes by, the Trustee on behalf of each Trust created
from time to time pursuant to this Agreement, the Company as the "issuer", as
such term is defined in and solely for purposes of the Securities Act of 1933,
as amended, of the Certificates to be issued in respect of each Trust and as
the "obligor", as such term is defined in and solely for purposes of the Trust
Indenture Act of 1939, as amended to date, has duly authorized the execution
and delivery of this Basic Agreement and is undertaking to perform certain
administrative and ministerial duties hereunder and is also undertaking to pay
the fees and expenses of the Trustee; and
1
8
WHEREAS, this Agreement, as supplemented from time to time, is subject
to the provisions of the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Basic Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms used herein that are defined in this Article I have
the meanings assigned to them in this Article I, and include
the plural as well as the singular;
(2) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, or by
the rules promulgated under the Trust Indenture Act, have the
meanings assigned to them therein;
(3) all references in this Basic Agreement to designated
"Articles", "Sections", "Subsections" and other subdivisions
are to the designated Articles, Sections, Subsections and
other subdivisions of this Basic Agreement;
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Basic Agreement as a whole
and not to any particular Article, Section, Subsection or
other subdivision;
(5) unless the context otherwise requires, whenever the words
"including", "include" or "includes" are used herein, it
shall be deemed to be followed by the phrase "without
limitation"; and
(6) the term "this Agreement" (as distinguished from "this Basic
Agreement") refers, unless the context otherwise requires, to
this Basic Agreement as supplemented by the Trust Supplement
creating a particular Trust and establishing the series of
Certificates issued or to be issued in respect thereof, with
reference to such Trust and such series of Certificates, as
this Basic Agreement as so supplemented may be further
supplemented with respect to such Trust and such series of
Certificates.
Act: Has the meaning, with respect to any Certificateholder, specified
in Section 1.04(a).
2
9
Affiliate: Means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power,
directly or indirectly, to direct the management and policies of such Person,
whether through the ownership of voting securities or by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
Aircraft: Means one or more aircraft, including engines therefor,
owned by or leased to the Company and securing one or more Equipment Notes.
Authorized Agent: Means, with respect to the Certificates of any
series, any Paying Agent or Registrar for the Certificates of such series.
Basic Agreement: Means this Pass Through Trust Agreement, as the same
may from time to time be supplemented, amended or modified, but does not
include any Trust Supplement.
Book-Entry Certificates: Means, with respect to the Certificates of
any series, a beneficial interest in the Certificates of such series, ownership
and transfers of which shall be made through book entries as described in
Section 3.05.
Business Day: Means, with respect to the Certificates of any series,
any day other than a Saturday, a Sunday or a day on which commercial banks are
required or authorized to close in New York, New York, Dallas, Texas, or, so
long as any Certificate of such series is outstanding, the city and state in
which the Trustee or any related Loan Trustee maintains its Corporate Trust
Office or receives and disburses funds.
Certificate: Means any one of the certificates executed and
authenticated by the Trustee, substantially in the form of Exhibit A hereto.
Certificate Account: Means, with respect to the Certificates of any
series, the account or accounts created and maintained for such series pursuant
to Section 4.01(a) and the related Trust Supplement.
Certificateholder or Holder: Means, with respect to the Certificates
of any series, the Person in whose name a Certificate of such series is
registered in the Register for Certificates of such series.
Certificate Owner: Means, with respect to the Certificates of any
series, for purposes of Section 3.05, the Person who owns a Book-Entry
Certificate of such series.
Clearing Agency: Means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
3
10
Clearing Agency Participant: Means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects, directly or indirectly, book-entry transfers and pledges of
securities deposited with the Clearing Agency.
Company: Means American Airlines, Inc., a Delaware corporation, or its
successor in interest pursuant to Section 5.02.
Controlling Party: Means the Person entitled to act as such pursuant
to the terms of any Intercreditor Agreement.
Corporate Trust Office: Means, with respect to the Trustee or any Loan
Trustee, the office of such trustee in the city at which at any particular time
its corporate trust business shall be principally administered.
Cut-off Date: Means, with respect to the Certificates of any series,
the date designated as such in the Trust Supplement establishing such series.
Definitive Certificates: Has the meaning, with respect to the
Certificates of any series, specified in Section 3.05.
Direction: Has the meaning specified in Section 1.04(a).
Distribution Date: Means any Regular Distribution Date, Special
Distribution Date or Initial Regular Distribution Date.
Equipment Note: Means, with respect to any Trust, any one of the
notes, certificates or instruments issued pursuant to any Indenture and
described as "Equipment Notes" in, or on a schedule attached to, the Trust
Supplement in respect of such Trust and to be held by the Trustee as part of
such Trust, including any Equipment Note (as so defined) issued under the
applicable Indenture in replacement thereof or substitution therefor.
ERISA: Means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor federal statute.
Escrow Account: Has the meaning, with respect to any Trust, specified
in Section 2.02(b).
Escrowed Funds: Has the meaning, with respect to any Trust, specified
in Section 2.02(b).
Event of Default: Means, in respect of any Trust, an Indenture Event
of Default under any Indenture pursuant to which Equipment Notes held by such
Trust were issued and such other event as may be designated under the related
Trust Supplement as an "Event of Default".
4
11
Fractional Undivided Interest: Means the fractional undivided interest
in a Trust that is evidenced by a Certificate relating to such Trust.
Holder: Has the meaning specified in the definition of
"Certificateholder or Holder".
Indenture: Means, with respect to any Trust, each of the one or more
separate trust indenture and security agreements or trust indenture and
mortgages or similar documents described in, or on a schedule attached to, the
Trust Supplement and an indenture having substantially the same terms and
conditions which relates to a Substitute Aircraft, as each such indenture may
be amended or supplemented in accordance with its respective terms; and
"Indentures" means all of such agreements.
Indenture Event of Default: Means, with respect to any Indenture, any
Indenture Event of Default (as such term is defined in such Indenture).
Initial Regular Distribution Date: Means, with respect to the
Certificates of any series, the first Regular Distribution Date on which a
Scheduled Payment is to be made.
Intercreditor Agreement: Means (a) any agreement by and among the
Trustee, as trustee with respect to one or more Trusts, one or more Liquidity
Providers, if applicable, and a Subordination Agent providing, among other
things, for the distribution of payments made in respect of Equipment Notes
held by such Trusts, or (b) such other agreement or agreements designated as an
"Intercreditor Agreement" in the Trust Supplement relating to any Trust.
Issuance Date: Means, with respect to the Certificates of any series,
the date of the issuance of such Certificates.
Lease: Means any lease between an Owner Trustee, as the lessor (or
such other Person acting as the lessor), and the Company, as the lessee,
referred to in the related Indenture, as such lease may be amended,
supplemented or otherwise modified in accordance with its terms; and "Leases"
means all such Leases.
Letter of Representations: Means, with respect to the Certificates of
any series, an agreement among the Company, the Trustee and the initial
Clearing Agency substantially in the form attached as an Exhibit to the related
Trust Supplement, as such letter may be modified or supplemented, or any
successor letter thereto.
Liquidity Facility: Means, with respect to the Certificates of any
series or any Equipment Notes, (a) any revolving credit agreement, letter of
credit, insurance policy, surety bond or financial guaranty or similar facility
for the provision of liquidity support relating to the Certificates of such
series between a Liquidity Provider and a Subordination Agent or one or more
other Persons, as amended, replaced, supplemented or otherwise modified from
time to time in accordance with its
5
12
terms and, if applicable, the terms of any Intercreditor Agreement, or (b) such
other agreement or agreements designated as a "Liquidity Facility" in the Trust
Supplement relating to any Trust.
Liquidity Provider: Means, with respect to the Certificates of any
series, a bank, insurance company, financial institution or other Person that
agrees to provide a Liquidity Facility for the benefit of the holders of
Certificates of such series.
Loan Trustee: Means, with respect to any Equipment Note or the
Indenture applicable thereto, the bank, trust company or other financial
institution designated as loan or indenture trustee under such Indenture, and
any successor to such Loan Trustee as such trustee; and "Loan Trustees" means
all of the Loan Trustees under the Indentures.
Note Documents: Means, with respect to the Certificates of any series,
the Equipment Notes with respect to such Certificates and, with respect to such
Equipment Notes, the related Indenture, Note Purchase Agreement, and, if the
related Aircraft is leased to the Company, the related Lease and the related
Purchase Agreement Assignment (as defined in the related Lease), if any.
Note Purchase Agreement: Means, with respect to the Certificates of
any series, any note purchase, refunding, participation or similar agreement
providing for, among other things, the purchase of Equipment Notes by the
Trustee on behalf of the relevant Trust; and "Note Purchase Agreements" means
all such agreements.
Officer's Certificate: Means a certificate signed, (a) in the case of
the Company, by the Chairman or Vice Chairman of the Board of Directors, the
President, any Executive Vice President, any Senior Vice President, any Vice
President or the Treasurer of the Company or (b) in the case of the Trustee or
an Owner Trustee or a Loan Trustee, a Responsible Officer of the Trustee or
such Owner Trustee or such Loan Trustee, as the case may be.
Opinion of Counsel: Means a written opinion of legal counsel who (a)
in the case of counsel for the Company may be (i) a senior attorney of the
Company one of whose principal duties is furnishing advice as to legal matters,
(ii) Debevoise & Xxxxxxxx or (iii) such other counsel designated by the Company
and reasonably acceptable to the Trustee and (b) in the case of any Owner
Trustee or any Loan Trustee, such counsel as they may designate, whether or not
such counsel is an employee of any of them, and who shall be reasonably
acceptable to the Trustee.
Outstanding: When used with respect to Certificates of any series,
means, as of the date of determination, all Certificates of such series
theretofore authenticated and delivered under this Agreement, except:
(i) Certificates of such series theretofore cancelled by the Registrar
or delivered to the Trustee or the Registrar for cancellation;
6
13
(ii) all of the Certificates of such series if money in the full
amount required to make the final distribution with respect to such series
pursuant to Section 11.01 hereof has been theretofore deposited with the
Trustee in trust for the Holders of the Certificates of such series as provided
in Section 4.01, pending distribution of such money to such Certificateholders
pursuant to payment of such final distribution payment; and
(iii) Certificates of such series in exchange for or in lieu of which
other Certificates of such series have been authenticated and delivered
pursuant to this Agreement.
Owner Participant: Means, with respect to any Equipment Note, the
"Owner Participant", if any, as referred to in the Indenture pursuant to which
such Equipment Note is issued and any permitted successor or assign of such
Owner Participant; and "Owner Participants" at any time of determination means
all of the Owner Participants thus referred to in the Indentures.
Owner Trustee: Means, with respect to any Equipment Note, the "Owner
Trustee", if any, as referred to in the Indenture pursuant to which such
Equipment Note is issued, not in its individual capacity but solely as trustee;
and "Owner Trustees" means all of the Owner Trustees party to any of the
related Indentures.
Paying Agent: Means, with respect to the Certificates of any series,
the paying agent maintained and appointed for the Certificates of such series
pursuant to Section 7.12.
Permitted Investments: Means obligations of the United States of
America or agencies or instrumentalities thereof for the payment of which the
full faith and credit of the United States of America is pledged, maturing in
not more than 60 days after the date of acquisition thereof or such lesser time
as is required for the distribution of any Special Payments on a Special
Distribution Date.
Person: Means any person, including any individual, corporation,
limited liability company, partnership, joint venture, association, joint-stock
company, trust, trustee, unincorporated organization, or government or any
agency or political subdivision thereof.
Pool Balance: Means, with respect to the Certificates of any series as
of any date, except to the extent otherwise provided in the applicable Trust
Supplements, (i) the original aggregate face amount of the Certificates of such
series less (ii) the aggregate amount of all distributions made in respect of
such Certificates other than distributions made in respect of interest or
premium or reimbursement of any costs or expenses incurred in connection
therewith. The Pool Balance as of any Regular Distribution Date or Special
Distribution Date with respect to such series shall be computed after giving
effect to the payment of principal, if any, on the Equipment Notes or other
Trust Property held in the Trust and the distribution thereof to be made on
such date.
Pool Factor: Means, with respect to any series of Certificates as of
any date, except to the extent otherwise provided in the applicable Trust
Supplement, the quotient (rounded to the seventh
7
14
decimal place, with 0.00000005 being rounded upward) computed by dividing (i)
the Pool Balance of such series as at such date by (ii) the original aggregate
face amount of the Certificates of such series. The Pool Factor as of any
Regular Distribution Date or Special Distribution Date with respect to such
series shall be computed after giving effect to the payment of principal, if
any, on the Equipment Notes or other Trust Property held in the Trust relating
to such series and the distribution thereof to be made on such date.
Postponed Notes: Means, with respect to any Trust or the related
series of Certificates, the Equipment Notes to be held in such Trust as to
which a Postponement Notice shall have been delivered pursuant to Section
2.02(b).
Postponement Notice: Means, with respect to any Trust or the related
series of Certificates, an Officer's Certificate of the Company (i) requesting
that the Trustee temporarily postpone purchase of the related Equipment Notes
to a date later than the Issuance Date of such series of Certificates, (ii)
identifying the amount of the purchase price of each such Equipment Note and
the aggregate purchase price for all such Equipment Notes, (iii) setting forth
the reasons for such postponement and (iv) with respect to each such Equipment
Note, either (a) setting or resetting a new Transfer Date (which shall be on or
prior to the applicable Cut-off Date) for payment by the Trustee of such
purchase price and issuance of the related Equipment Note (subject to
subsequent change from time to time in accordance with the relevant Note
Purchase Agreement), or (b) indicating that such new Transfer Date (which shall
be on or prior to the applicable Cut-off Date) will be set by subsequent
written notice not less than one Business Day prior to such new Transfer Date
(subject to subsequent change from time to time in accordance with the relevant
Note Purchase Agreement).
Potential Purchaser: Has the meaning, with respect to any
Certificateholder, specified in Section 6.01(d).
Purchasing Certificateholder: Has the meaning, with respect to any
Certificateholder, specified in Section 6.01(d).
Record Date: Means, with respect to any Trust or the related series of
Certificates, (i) for Scheduled Payments to be distributed on any Regular
Distribution Date, other than the final distribution with respect to such
series, the 15th day (whether or not a Business Day) preceding such Regular
Distribution Date, or such other date as shall be specified for such series in
the applicable Trust Supplement, and (ii) for Special Payments to be
distributed on any Special Distribution Date, other than the final distribution
with respect to such series, the 15th day (whether or not a Business Day)
preceding such Special Distribution Date, or such other date as shall be
specified for such series in the applicable Trust Supplement.
Register and Registrar: Means, each with respect to the Certificates
of any series, the register maintained and the registrar appointed pursuant to
Sections 3.04 and 7.12, respectively.
8
15
Regular Distribution Date: Means, with respect to distributions of
Scheduled Payments in respect of any series of Certificates, each date
designated as such in this Agreement, until payment of all the Scheduled
Payments to be made under the Equipment Notes held in the Trust have been made
or until such Equipment Notes have been redeemed or otherwise prepaid in full.
Request: Means a request by the Company setting forth the subject
matter of the request accompanied by an Officer's Certificate and an Opinion of
Counsel as provided in Section 1.02 of this Basic Agreement.
Responsible Officer: Means, with respect to any Trustee, any Loan
Trustee and any Owner Trustee, any officer in the Corporate Trust Department or
similar department of the Trustee, such Loan Trustee or such Owner Trustee, as
the case may be, or any other officer customarily performing functions similar
to those performed by the persons who at the time shall be such officers or to
whom any corporate trust matter is referred because of his knowledge of and
familiarity with a particular subject.
Responsible Party: Means, with respect to the Certificates of any
series, the Company or the other Person designated as such in the related Trust
Supplement.
Scheduled Payment: Means, with respect to any Equipment Note, except
to the extent otherwise provided in the applicable Trust Supplement, (i) any
payment of principal or interest on such Equipment Note (other than any such
payment which is not in fact received by the Trustee or any Subordination Agent
within five days of the date on which such payment is scheduled to be made) or
(ii) any distribution in respect of principal or interest on such Equipment
Note to the Holders of the Certificates of any series with funds drawn under
the Liquidity Facility for such series (other than any such payment which is
not in fact received by the Trustee or any Subordination Agent within five days
of the date upon which payment is scheduled to be made), which payment in the
case of clause (i) or clause (ii) represents an installment of principal on
such Equipment Note at the stated maturity of such installment, or the payment
of regularly scheduled interest accrued on the unpaid principal amount of such
Equipment Note, or both; provided, however, that any payment of principal,
premium, if any, or interest resulting from the redemption or purchase of any
Equipment Note shall not constitute a Scheduled Payment.
SEC: Means the Securities and Exchange Commission, as from time to
time constituted or created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
Selling Certificateholder: Has the meaning, with respect to any
Certificateholder, specified in Section 6.01(d).
9
16
Special Distribution Date: Means, with respect to the Certificates of
any series, each date on which a Special Payment is to be distributed as
specified in this Agreement.
Special Payment: Means, except to the extent otherwise provided in the
applicable Trust Supplement, (i) any payment (other than a Scheduled Payment)
in respect of, or any proceeds of, any Equipment Note held in a Trust or Trust
Indenture Estate (as defined in each Indenture), (ii) the amounts required to
be distributed pursuant to the last paragraph of Section 2.02(b), or (iii) the
amounts required to be distributed pursuant to the penultimate paragraph of
Section 2.02(b).
Special Payments Account: Means, with respect to the Certificates of
any series, the account or accounts created and maintained for such series
pursuant to Section 4.01(b) and the related Trust Supplement.
Specified Investments: Means, with respect to any Trust, unless
otherwise specified in the related Trust Supplement, (i) obligations of the
United States Government or agencies thereof, or obligations guaranteed by the
United States Government, (ii) open market commercial paper of any corporation
incorporated under the laws of the United States of America or any State
thereof rated at least P-2 or its equivalent by Xxxxx'x Investors Service, Inc.
or at least A-2 or its equivalent by Standard & Poor's Ratings Services
(including the Trustee if such conditions are met), (iii) certificates of
deposit issued by commercial banks organized under the laws of the United
States or of any political subdivision thereof having a combined capital and
surplus in excess of $500,000,000 which banks or their holding companies have a
rating of A or its equivalent by Xxxxx'x Investors Service, Inc. or A2 or its
equivalent by Standard & Poor's Ratings Services (including the Trustee if such
conditions are met); provided, however, that the aggregate amount at any one
time so invested in certificates of deposit issued by any one bank shall not
exceed 5% of such bank's capital and surplus, (iv) U.S. dollar denominated
offshore certificates of deposit issued by, or offshore time deposits with, any
commercial bank described in (iii) or any subsidiary thereof, and (v)
repurchase agreements with any financial institution having combined capital
and surplus of at least $500,000,000 (including the Trustee if such conditions
are met) with any of the obligations described in clauses (i) through (iv) as
collateral; provided further that if all of the above investments are
unavailable, the entire amounts to be invested may be used to purchase Federal
Funds from an entity described in clause (iii) above; and provided further that
no investment shall be eligible as a "Specified Investment" unless the final
maturity or date of return of such investment is on or before the Special
Distribution Date next following the Cut-off Date for such Trust by at least 15
days.
Subordination Agent: Has the meaning specified therefor in any
Intercreditor Agreement.
Substitute Aircraft: Means, with respect to any Trust, any Aircraft of
a type specified in this Agreement and, at the election of the Company,
substituted prior to the applicable Cut-off Date, if any, pursuant to the terms
of this Agreement.
10
17
Transfer Date: Has the meaning assigned to that term or any of the
terms "Delivery Date", "Funding Date" or "Closing Date" in a Note Purchase
Agreement, and in any event refers to any such date as it may be changed from
time to time in accordance with the terms of such Note Purchase Agreement.
Triggering Event: Has the meaning specified therefor in any
Intercreditor Agreement.
Trust: Means, with respect to the Certificates of any series, the
separate trust created under this Agreement.
Trustee: Means, with respect to any particular Trust, the institution
executing this Agreement as the Trustee, or its successor in interest, and any
successor or other trustee appointed as provided herein (it being understood
that the same institution need not act as the Trustee in respect of all of the
Trusts created pursuant to this Basic Agreement and the Trust Supplements).
Trust Indenture Act: Except as otherwise provided in Section 9.06,
means, with respect to any particular Trust, the Trust Indenture Act of 1939,
as amended and in force at the date as of which the related Trust Supplement
was executed.
Trust Property: Means, with respect to any Trust, except to the extent
otherwise provided in the applicable Trust Supplement, (i) subject to any
related Intercreditor Agreement, the Equipment Notes held as the property of
such Trust, all monies at any time paid thereon and all monies due and to
become due thereunder, (ii) debt instruments issued by the Company in
accordance with the first paragraph of Section 2.02(b), (iii) funds from time
to time deposited in the related Escrow Account, the related Certificate
Account and the related Special Payments Account and, subject to any related
Intercreditor Agreement, any proceeds from the sale by the Trustee pursuant to
Article VI hereof of any Equipment Note referred to in (i) above, (iv) all
rights of such Trust and the Trustee, on behalf of the Trust, under any
Intercreditor Agreement or Liquidity Facility, including, without limitation,
all rights to receive all monies and other property payable thereunder, and (v)
all monies or other property receivable under any Intercreditor Agreement or
Liquidity Facility for such Trust.
Trust Supplement: Means an agreement supplemental hereto pursuant to
which (i) a separate Trust is created for the benefit of the Holders of the
Certificates of a series, (ii) the issuance of the Certificates of such series
representing fractional undivided interests in such Trust is authorized and
(iii) the terms of the Certificates of such series are established, as such
agreement may from time to time be supplemented, amended or otherwise modified.
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request (except with respect to matters set forth in Article II)
by the Company, any Owner Trustee or any Loan Trustee to the Trustee to take
any action under any provision of this Basic Agreement or, in respect of the
Certificates of any series, this Agreement, the Company, such Owner Trustee or
such Loan Trustee, as the case may be, shall furnish to the Trustee (i) an
Officer's Certificate stating that,
11
18
in the opinion of the signer or signers, all conditions precedent, if any,
provided for in this Basic Agreement or this Agreement relating to the proposed
action have been complied with and (ii) an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Basic Agreement or this Agreement relating to such particular
application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Basic Agreement or, in respect of the
Certificates of any series, this Agreement (other than a certificate provided
pursuant to Section 8.04(d)) or any Trust Supplement shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the
definitions in this Basic Agreement or this Agreement
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters and any such Person may certify or give an
opinion as to such matters in one or several documents.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Basic Agreement or, in respect of the Certificates of
any series, this Agreement, they may, but need not, be consolidated and form
one instrument.
Section 1.04. Directions of Certificate Holders. (a) Any direction,
consent, request, demand, authorization, notice, waiver or other action
provided by this Agreement or in respect of the Certificates of any series to
be given or taken by Certificateholders (a "Direction") may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Certificateholders in person or by an agent or proxy duly appointed in
writing; and, except as herein
12
19
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, when it is
expressly required pursuant to this Agreement, to the Company or any Loan
Trustee. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Certificateholders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent or proxy shall
be sufficient for any purpose of this Agreement and conclusive in favor of the
Trustee, the Company and the related Loan Trustee, if made in the manner
provided in this Section 1.04.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of deeds
or administer oaths that the Person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or such other officer, and where such execution
is by an officer of a corporation or association or a member of a partnership,
on behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other reasonable
manner which the Trustee deems sufficient.
(c) In determining whether the Certificateholders of the requisite
Fractional Undivided Interests of Certificates of any series Outstanding have
given any Direction under this Agreement, Certificates owned by the Company,
any related Owner Trustee, any related Owner Participant or any Affiliate of
any such Person shall be disregarded and deemed not to be Outstanding for
purposes of any such determination. In determining whether the Trustee shall be
protected in relying upon any such Direction, only Certificates which the
Trustee knows to be so owned shall be so disregarded. Notwithstanding the
foregoing, (i) if any such Person owns 100% of the Certificates of any series
Outstanding, such Certificates shall not be so disregarded, and (ii) if any
amount of Certificates of any series so owned by any such Person have been
pledged in good faith, such Certificates shall not be disregarded if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Certificates and that the pledgee is not the
Company, any related Owner Trustee, any related Owner Participant or any
Affiliate of any such Person.
(d) The Company may, at its option, by delivery of an Officer's
Certificate to the Trustee, set a record date to determine the
Certificateholders in respect of the Certificates of any series entitled to
give any Direction. Notwithstanding Section 316(c) of the Trust Indenture Act,
such record date shall be the record date specified in such Officer's
Certificate, which shall be a date not more than 30 days prior to the first
solicitation of Certificateholders of the applicable series in connection
therewith. If such a record date is fixed, such Direction may be given before
or after such record date, but only the Certificateholders of record of the
applicable series at the close of business on such record date shall be deemed
to be Certificateholders for the purposes of determining whether
Certificateholders of the requisite proportion of Outstanding Certificates of
such series have
13
20
authorized or agreed or consented to such Direction, and for that purpose the
Outstanding Certificates of such series shall be computed as of such record
date; provided, however, that no such Direction by the Certificateholders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Agreement not later than one year after such
record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be deemed
cancelled and of no effect).
(e) Any Direction by the Holder of any Certificate shall bind the
Holder of every Certificate issued upon the transfer thereof or in exchange
therefor or in lieu thereof, whether or not notation of such Direction is made
upon such Certificate.
(f) Except as otherwise provided in Section 1.04(c), Certificates of
any series owned by or pledged to any Person shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority or distinction as among all of the Certificates of such
series.
(g) The Company and the Trustee may make reasonable rules for action
by or at a meeting of Certificateholders.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF TRUST PROPERTY
Section 2.01. Amount Unlimited; Issuable in Series. (a) The aggregate
face amount of Certificates that may be authenticated and delivered under this
Basic Agreement is unlimited. The Certificates may be issued from time to time
in one or more series and shall be designated generally as the "Pass Through
Certificates", with such further designations added or incorporated in such
title for the Certificates of each series as are specified in the related Trust
Supplement. Each Certificate shall bear upon its face the designation so
selected for the series to which it belongs. All Certificates of the same
series shall be substantially identical except that the Certificates of a
series may differ as to denomination and as may otherwise be provided in the
Trust Supplement establishing the Certificates of such series. Each series of
Certificates issued pursuant to this Agreement will evidence fractional
undivided interests in the related Trust and, except as may be specified in any
Intercreditor Agreement or in the applicable Trust Supplement, will have no
rights, benefits or interests in respect of any other Trust or the Trust
Property held therein. All Certificates of the same series shall be in all
respects equally and ratably entitled to the benefits of this Agreement without
preference, priority or distinction on account of the actual time or times of
authentication and delivery, all in accordance with the terms and provisions of
this Agreement.
14
21
(b) The following matters shall be established with respect to the
Certificates of each series issued hereunder by a Trust Supplement executed and
delivered by and between the Company and the Trustee:
(1) the formation of the Trust as to which the Certificates of
such series represent fractional undivided interests and its
designation (which designation shall distinguish such Trust
from each other Trust created under this Basic Agreement and
a Trust Supplement);
(2) the specific title of the Certificates of such series (which
title shall distinguish the Certificates of such series from
each other series of Certificates created under this Basic
Agreement and a Trust Supplement);
(3) subject to Section 2.01(a) hereof, any limit upon the
aggregate face amount of the Certificates of such series
which may be authenticated and delivered under this Basic
Agreement (which limit shall not pertain to Certificates
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Certificates of the
series pursuant to Sections 3.03, 3.04 and 3.06);
(4) the Cut-off Date with respect to the Certificates of such
series and the related Trust;
(5) the Regular Distribution Dates applicable to the Certificates
of such series;
(6) the Special Distribution Dates applicable to the Certificates
of such series;
(7) if other than as provided in Section 3.04 or Section 7.12(b),
the Registrar or the Paying Agent for the Certificates of
such series, including any Co-Registrar or additional Paying
Agent;
(8) if other than as provided in Section 3.01, the denominations
in which the Certificates of such series shall be issuable;
(9) if other than United States dollars, the currency or
currencies (including composite currencies or currency units)
in which the Certificates of such series shall be denominated
or payable;
(10) the specific form of the Certificates of such series
(including the interest rate applicable thereto) and whether
or not Certificates of such series are to be issued as
Book-Entry Certificates and, if such Certificates are to be
Book-Entry Certificates, the form of Letter of
Representations, if any (or, in the case of any Certificates
denominated or payable in a currency other than United States
dollars and if other than as provided in Section 3.05,
whether and the circumstances under which
15
22
beneficial owners of interests in such Certificates in
permanent global form may exchange such interests for
Certificates of such series and of like tenor of any
authorized form and denomination);
(11) a description of the Equipment Notes to be acquired and held
in the Trust formed by such Trust Supplement and of the
related Aircraft and Note Documents;
(12) provisions with respect to the terms for which the
definitions set forth in Article I hereof or the terms of any
Section hereof, including Section 11.01 hereof, permit or
require further specification in the related Trust
Supplement;
(13) any restrictions (including legends) in respect of ERISA;
(14) the acceptance of appointment by the institution named to act
as Trustee with respect to such Trust, if different from the
institution executing this Basic Agreement or its successor;
(15) whether such series will be subject to an Intercreditor
Agreement and, if so, the specific designation of such
Intercreditor Agreement and the rights of Potential
Purchasers upon the occurrence of a Triggering Event;
(16) whether such series will have the benefit of a Liquidity
Facility and, if so, any terms appropriate thereto;
(17) whether there will be a deposit agreement, escrow agreement
or other arrangement prior to the delivery of one or more
Aircraft or the commencement of the Lease in respect of one
or more Aircraft and, if so, any terms appropriate thereto;
(18) the extent, if any, to which the Company may acquire
Certificates and deliver such Certificates or cash to the
respective Trusts and obtain the release of Equipment Notes
or other Trust Property held by such Trusts;
(19) if the Certificates of such series are to be issued in bearer
form, the forms thereof and any other special terms relating
thereto;
(20) the "Responsible Party" for purposes of directing the Trustee
to make Specified Investments; and
(21) any other terms of the Certificates of such series (which
terms shall not be inconsistent with the provisions of the
Trust Indenture Act but may modify, amend, supplement or
delete any of the terms of this Basic Agreement), including
any terms of the Certificates of such series which may be
required or advisable under United
16
23
States laws or regulations or advisable (as determined by the
Company) in connection with the marketing of Certificates of
the series.
(c) At any time and from time to time after the execution and delivery
of this Basic Agreement and a Trust Supplement forming a Trust and establishing
the terms of Certificates of a series, Certificates of such series shall be
executed, authenticated and delivered by the Trustee to the Person or Persons
specified by the Company upon request of the Company and upon satisfaction or
waiver of any conditions precedent set forth in such Trust Supplement or in any
other document to which a Trustee is a party relating to the issuance of the
Certificates of such series.
Section 2.02. Acquisition of Equipment Notes. (a) Unless otherwise
specified in the related Trust Supplement, on or prior to the Issuance Date of
the Certificates of a series, the Trustee shall execute and deliver the related
Note Purchase Agreements in the form delivered to the Trustee by the Company.
The Trustee shall issue and sell such Certificates, in authorized denominations
and in such Fractional Undivided Interests, so as to result in the receipt of
consideration in an amount equal to the aggregate purchase price of the
Equipment Notes contemplated to be purchased by the Trustee under the related
Note Purchase Agreements and, concurrently therewith (unless the Company shall
have delivered to the Trustee the Postponement Notice relating to one or more
Postponed Notes pursuant to Subsection (b) below), the Trustee shall purchase,
pursuant to the terms and conditions of the Note Purchase Agreements, such
Equipment Notes (except Postponed Notes, if any) at a purchase price equal to
the amount of such consideration so received. Except as provided in Sections
3.03, 3.04 and 3.06 hereof, the Trustee shall not execute, authenticate or
deliver Certificates of such series in excess of the aggregate amount specified
in this paragraph. The provisions of this Subsection (a) are subject to the
provisions of Subsection (b) below.
(b) If on or prior to the Issuance Date with respect to a series of
Certificates the Company shall deliver to the Trustee a Postponement Notice
relating to one or more Postponed Notes, the Trustee shall postpone the
purchase of such Postponed Notes and shall deposit into an escrow account (as
to such Trust, the "Escrow Account") to be maintained as part of the related
Trust an amount equal to the purchase price of such Postponed Notes (the
"Escrowed Funds"). The portion of the Escrowed Funds so deposited with respect
to any particular Postponed Notes shall be invested (a) by the Trustee at the
direction and risk of, and for the benefit of, the Responsible Party in
Specified Investments or (b) if provided in the Trust Supplement relating to
such series of Certificates and subject to the terms and conditions set forth
therein, in debt instruments of the Company, in each case (i) maturing no later
than any scheduled Transfer Date relating to such Postponed Notes, or (ii) if
no such Transfer Date has been scheduled, maturing on the next Business Day, or
(iii) if subsequent to the giving of the applicable Postponement Notice the
Company has given notice to the Trustee that such Postponed Notes will not be
issued, maturing on the next applicable Special Distribution Date, if such
investments are reasonably available for purchase. The Trustee shall make
withdrawals from the Escrow Account only as provided in this Agreement. Upon
request of the Company on one or more occasions and the satisfaction or waiver
of the closing conditions specified in the applicable Note Purchase Agreements
on or prior to the related Cut-off
17
24
Date, the Trustee shall purchase the applicable Postponed Notes, on the terms
specified in such Note Purchase Agreements, with the Escrowed Funds withdrawn
from the Escrow Account.
The Trustee shall hold all Specified Investments until the maturity
thereof and will not sell or otherwise transfer Specified Investments. If
Specified Investments held in an Escrow Account mature prior to any applicable
Transfer Date, any proceeds received on the maturity of such Specified
Investments (other than any earnings thereon) shall be reinvested by the
Trustee at the written direction and risk of, and for the benefit of, the
Responsible Party in Specified Investments maturing as provided in the
preceding paragraph.
Subject to the provisions of the Intercreditor Agreement, any earnings
on Specified Investments received from time to time by the Trustee shall be
promptly distributed to the Responsible Party. The Responsible Party shall pay
to the Trustee for deposit to the relevant Escrow Account an amount equal to
any net losses on any Specified Investments made at its direction and risk as
incurred. On any Regular Distribution Date in respect of the Certificates of
any series occurring prior to the date of purchase of any Postponed Notes by
the Trustee, the Responsible Party will pay (in immediately available funds) to
the Trustee an amount equal to the interest that would have accrued on such
Postponed Notes if such Postponed Notes had been purchased on the later of the
Issuance Date or the previous Regular Distribution Date in respect of the
Certificates of such series to, but not including, such Regular Distribution
Date. On the first Regular Distribution Date in respect of the Certificates of
any series following the purchase of any Postponed Notes by the Trustee, the
Responsible Party will pay (in immediately available funds) to the Trustee an
amount equal to the interest that would have accrued on such Postponed Notes if
such Postponed Notes had been purchased on the later of the Issuance Date or
the previous Regular Distribution Date in respect of such series to, but not
including, the date of the purchase of such Postponed Notes by the Trustee.
If, in respect of the Certificates of any series, the Company notifies
the Trustee prior to the Cut-off Date that any Postponed Notes will not be
issued on or prior to the Cut-off Date for any reason, on the next Special
Distribution Date for such Certificates occurring not less than 15 days
following the date of such notice, (i) the Responsible Party shall pay (in
immediately available funds) to the Trustee for deposit in the related Special
Payments Account, an amount equal to the interest that would have accrued on
the Postponed Notes designated in such notice at a rate equal to the interest
rate applicable to such Certificates from the later of the Issuance Date or the
previous Regular Distribution Date in respect of the Certificates of such
series to, but not including, such Special Distribution Date and (ii) the
Trustee shall transfer an amount equal to that amount of Escrowed Funds that
would have been used to purchase the Postponed Notes designated in such notice
and the amount paid by the Responsible Party pursuant to the immediately
preceding clause (i) to the related Special Payments Account for distribution
as a Special Payment in accordance with the provisions hereof.
If, on such Cut-off Date, an amount equal to less than all of the
Escrowed Funds (other than Escrowed Funds referred to in the immediately
preceding paragraph) has been used to purchase
18
25
Postponed Notes, on the next such Special Distribution Date occurring not less
than 15 days following such Cut-off Date (i) the Responsible Party shall pay to
the Trustee for deposit in such Special Payments Account, in immediately
available funds, an amount equal to the interest that would have accrued on
such Postponed Notes contemplated to be purchased with such unused Escrowed
Funds (other than Escrowed Funds referred to in the immediately preceding
paragraph) but not so purchased at a rate equal to the interest rate applicable
to such Certificates from the later of the Issuance Date or the previous
Regular Distribution Date in respect of the Certificates of such series to, but
not including, such Special Distribution Date and (ii) the Trustee shall
transfer such unused Escrowed Funds and the amount paid by the Responsible
Party pursuant to the immediately preceding clause (i) to such Special Payments
Account for distribution as a Special Payment in accordance with the provisions
hereof.
Section 2.03. Acceptance by Trustee. The Trustee, by the execution and
delivery of a Trust Supplement creating a Trust and establishing a series of
Certificates, shall acknowledge its acceptance of all right, title and interest
in and to the Trust Property to be acquired pursuant to Section 2.02 hereof and
the related Note Purchase Agreements and shall declare that the Trustee holds
and will hold such right, title and interest for the benefit of all then
present and future Certificateholders of such series, upon the trusts herein
and in such Trust Supplement set forth. By the acceptance of each Certificate
of such series issued to it under this Agreement, each initial Holder of such
series as grantor of such Trust shall thereby join in the creation and
declaration of such Trust. No Certificateholder of any series shall have legal
title to any part of the Trust Property of the related Trust.
Section 2.04. Limitation of Powers. Each Trust shall be constituted
solely for the purpose of making the investment in the Equipment Notes provided
for in the related Trust Supplement, and, except as set forth herein or in such
related Trust Supplement, the Trustee shall not be authorized or empowered to
acquire any other investments or engage in any other activities. Except to the
extent otherwise provided in the applicable Trust Supplement, the Trustee shall
not be authorized or empowered to do anything that would cause such Trust to
fail to qualify as a "grantor trust" for federal income tax purposes (including
as subject to this restriction, acquiring any Aircraft (as defined in the
related Indentures) by bidding such Equipment Notes or otherwise, or taking any
action with respect to any such Aircraft once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01. Form, Denomination and Execution of Certificates. Except
to the extent otherwise specified in the applicable Trust Supplement, the
Certificates of each series shall be issued in fully registered form without
coupons and shall be substantially in the form attached hereto as Exhibit A,
with such omissions, variations and insertions as are permitted by this
Agreement, and
19
26
may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with any
applicable laws, rules, regulations or the rules of any securities exchange on
which such Certificates may be listed or to conform to any usage in respect
thereof, or as may, consistently herewith, be determined by the Trustee or the
officers executing such Certificates, as evidenced by the Trustee's or such
officers' execution of the Certificates.
Except as provided in Section 3.05, the definitive Certificates of
such series shall be typed, printed, lithographed or engraved or produced by
any combination of these methods or may be produced in any other manner
permitted by the rules of any securities exchange on which the Certificates may
be listed, all as determined by the officers executing such Certificates, as
evidenced by their execution of such Certificates.
Except as otherwise provided in the related Trust Supplement, the
Certificates of each series shall be issued in minimum denominations of $1,000
or integral multiples thereof except that one Certificate of such series may be
issued in a different denomination. The Certificates of such series shall be
executed on behalf of the Trustee by manual or facsimile signature of a
Responsible Officer of the Trustee. Certificates of any series bearing the
manual or facsimile signature of an individual who was, at the time when such
signature was affixed, authorized to sign on behalf of the Trustee shall be
valid and binding obligations of the Trustee, notwithstanding that such
individual has ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such office at the date of such
Certificates.
Section 3.02. Authentication of Certificates. (a) Except to the extent
otherwise specified in the applicable Trust Supplement, on the Issuance Date,
the Trustee shall duly execute, authenticate and deliver Certificates of each
series in authorized denominations equaling in the aggregate the aggregate face
amount of the Equipment Notes that may be purchased by the Trustee pursuant to
the related Note Purchase Agreements, and evidencing the entire ownership of
the related Trust. Thereafter, the Trustee shall duly execute, authenticate and
deliver the Certificates of such series as herein provided.
(b) No Certificate of any series shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A hereto executed by the Trustee by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates of any series shall be
dated the date of their authentication.
Section 3.03. Temporary Certificates. Until definitive Certificates
are ready for delivery, the Trustee shall execute, authenticate and deliver
temporary Certificates of each series. Temporary Certificates of each series
shall be substantially in the form of definitive Certificates of such series
but may have insertions, substitutions, omissions and other variations
determined to be
20
27
appropriate by the officers executing the temporary Certificates of such
series, as evidenced by their execution of such temporary Certificates. If
temporary Certificates of any series are issued, the Trustee will cause
definitive Certificates of such series to be prepared without unreasonable
delay. After the preparation of definitive Certificates of such series, the
temporary Certificates shall be exchangeable for definitive Certificates upon
surrender of such temporary Certificates at the Corporate Trust Office or the
office or agency of the Trustee designated for such purpose pursuant to Section
7.12, without charge to the Certificateholder. Upon surrender for cancellation
of any one or more temporary Certificates, the Trustee shall execute,
authenticate and deliver in exchange therefor a like face amount of definitive
Certificates of like series, in authorized denominations and of a like
Fractional Undivided Interest. Until so exchanged, such temporary Certificates
shall be entitled to the same benefits under this Agreement as definitive
Certificates of such series.
Section 3.04. Transfer and Exchange. The Trustee shall cause to be
kept at the office or agency to be maintained by it in accordance with the
provisions of Section 7.12 a register (the "Register") for each series of
Certificates in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of Certificates of
such series and of transfers and exchanges of such Certificates as herein
provided. The Trustee shall initially be the registrar (the "Registrar") for
the purpose of registering such Certificates of each series and transfers and
exchanges of such Certificates as herein provided.
All Certificates issued upon any registration of transfer or exchange
of Certificates of any series shall be valid obligations of the applicable
Trust, evidencing the same interest therein, and entitled to the same benefits
under this Agreement, as the Certificates of such series surrendered upon such
registration of transfer or exchange.
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office or such other office or agency, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of like series, in authorized
denominations of a like aggregate Fractional Undivided Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of like series, in authorized denominations and of a
like aggregate Fractional Undivided Interest, upon surrender of the
Certificates to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate and deliver the Certificates that the Certificateholder making the
exchange is entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Registrar duly executed by the Certificateholder thereof or its attorney duly
authorized in writing.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Trustee shall
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of
21
28
Certificates. All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Trustee.
Section 3.05. Book-Entry and Definitive Certificates. (a) Except for
one Certificate of each series that may be issued in a denomination of other
than an even multiple of $1,000, the Certificates of any series may be issued
at the option of the Company in the form of one or more typewritten
Certificates representing the Book-Entry Certificates of such series, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Company. In such case, the Certificates of such series
delivered to The Depository Trust Company shall initially be registered on the
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no Certificate Owner will receive a definitive certificate representing
such Certificate Owner's interest in the Certificates of such series, except as
provided in Subsection (d) below. As to the Certificates of any such series
(other than the one Certificate or such series issued in a denomination of
other than an even multiple of $1,000), unless and until definitive, fully
registered Certificates (the "Definitive Certificates") have been issued
pursuant to Subsection (d) below:
(1) the provisions of this Section 3.05 shall be in full force and
effect;
(2) the Company, the Paying Agent, the Registrar and the Trustee
may deal with the Clearing Agency for all purposes (including
the making of distributions on the Certificates);
(3) to the extent that the provisions of this Section 3.05
conflict with any other provisions of this Agreement (other
than the provisions of any Trust Supplement expressly
amending this Section 3.05 as permitted by this Basic
Agreement), the provisions of this Section 3.05 shall
control;
(4) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Certificate
Owners and the Clearing Agency Participants; and until
Definitive Certificates are issued pursuant to Subsection (d)
below, the Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and
transmit distributions of principal, interest and premium, if
any, on the Certificates to such Clearing Agency
Participants;
(5) such Certificates of such series may be transferred in whole,
but not in part, and in the manner provided in Section 3.04,
by the Clearing Agency holding such Certificates to a nominee
of such Clearing Agency, or by such Clearing Agency to a
successor Clearing Agency that has been selected or approved
by the Company or to a nominee of such successor Clearing
Agency; and
22
29
(6) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of
Certificateholders of such series holding Certificates of
such series evidencing a specified percentage of the
Fractional Undivided Interests in the related Trust, the
Clearing Agency shall be deemed to represent such percentage
only to the extent that it has received instructions to such
effect from Clearing Agency Participants owning or
representing, respectively, such required percentage of the
beneficial interest in Certificates of such series and has
delivered such instructions to the Trustee. Neither the
Company nor the Trustee shall have any obligation to
determine whether the Clearing Agency has in fact received
any such instructions.
(b) Whenever notice or other communication to the Certificateholders
of such series is required under this Agreement, unless and until Definitive
Certificates shall have been issued pursuant to Subsection (d) below, the
Trustee shall give all such notices and communications specified herein to be
given to Certificateholders of such series to the Clearing Agency.
(c) Unless and until Definitive Certificates of a series are issued
pursuant to Subsection (d) below, on the Record Date prior to each applicable
Regular Distribution Date and Special Distribution Date, the Trustee will
request from the Clearing Agency a securities position listing setting forth
the names of all Clearing Agency Participants reflected on the Clearing
Agency's books as holding interests in the Certificates on such Record Date.
(d) If with respect to the Certificates of any series (i) the Company
advises the Trustee in writing that the Clearing Agency is no longer willing or
able to discharge properly its responsibilities and the Trustee or the Company
is unable to locate a qualified successor, (ii) the Company, at its option,
advises the Trustee in writing that it elects to terminate the book-entry
system through the Clearing Agency or (iii) after the occurrence of an Event of
Default, Certificate Owners of Book-Entry Certificates of such series
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the related Trust, by Act of such Certificate Owners delivered
to the Company and the Trustee, advise the Company, the Trustee and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency Participants is
no longer in the best interests of the Certificate Owners of such series, then
the Trustee shall notify all Certificate Owners of such series, through the
Clearing Agency, of the occurrence of any such event and of the availability of
Definitive Certificates. Upon surrender to the Trustee of all the Certificates
of such series held by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency Participants for registration of
Definitive Certificates in the names of Certificate Owners of such series, the
Trustee shall issue and deliver the Definitive Certificates of such series in
accordance with the instructions of the Clearing Agency. Neither the Company,
the Registrar, the Paying Agent nor the Trustee shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such registration instructions. Upon the issuance of
Definitive Certificates of such series, the Trustee shall recognize the Persons
in whose names the Definitive Certificates are registered in the
23
30
Register as Certificateholders hereunder. Neither the Company nor the Trustee
shall be liable if the Trustee or the Company is unable to locate a qualified
successor Clearing Agency.
(e) Except as otherwise provided in the related Trust Supplement, the
Trustee shall enter into the applicable Letter of Representations with respect
to such series of Certificates and fulfill its responsibilities thereunder.
(f) The provisions of this Section 3.05 may be made inapplicable to
any series or may be amended with respect to any series in the related Trust
Supplement.
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates. If
(i) any mutilated Certificate is surrendered to the Registrar, or the Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) there is delivered to the Registrar and the Trustee such
security, indemnity or bond as may be required by them to save each of them
harmless, then, in the absence of notice to the Registrar or the Trustee that
such destroyed, lost or stolen Certificate has been acquired by a bona fide
purchaser, and provided that the requirements of Section 8-405 of the Uniform
Commercial Code in effect in any applicable jurisdiction are met, the Trustee
shall execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate or
Certificates of like series, in authorized denominations and of like Fractional
Undivided Interest and bearing a number not contemporaneously outstanding.
In connection with the issuance of any new Certificate under this
Section 3.06, the Trustee shall require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
and the Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section 3.06 shall
constitute conclusive evidence of the appropriate Fractional Undivided Interest
in the related Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
The provisions of this Section 3.06 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.07. Persons Deemed Owners. Prior to due presentment of a
Certificate for registration of transfer, the Company, the Trustee, the
Registrar and any Paying Agent may treat the Person in whose name any
Certificate is registered (as of the day of determination) as the owner of such
Certificate for the purpose of receiving distributions pursuant to Article IV
and for all other purposes whatsoever, and none of the Company, the Trustee,
the Registrar or any Paying Agent shall be affected by any notice to the
contrary. All payments or distributions made to any such Person shall be valid
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable on any such Certificate.
24
31
Section 3.08. Cancellation. All Certificates surrendered for payment
or transfer or exchange shall, if surrendered to the Trustee or any agent of
the Trustee other than the Registrar, be delivered to the Registrar for
cancellation and shall promptly be cancelled by it. No Certificates shall be
authenticated in lieu of or in exchange for any Certificates cancelled as
provided in this Section 3.08, except as expressly permitted by this Agreement.
All cancelled Certificates held by the Registrar shall be destroyed and a
certification of their destruction delivered to the Trustee.
Section 3.09. Limitation of Liability for Payments. All payments and
distributions made to Certificateholders of any series in respect of the
Certificates of such series shall be made only from the Trust Property of the
related Trust and only to the extent that the Trustee shall have sufficient
income or proceeds from such Trust Property to make such payments in accordance
with the terms of Article IV of this Agreement. Each Certificateholder, by its
acceptance of a Certificate, agrees that it will look solely to the income and
proceeds from the Trust Property of the related Trust for any payment or
distribution due to such Certificateholder pursuant to the terms of this
Agreement and that it will not have any recourse to the Company, the Trustee,
the Loan Trustees, any Owner Trustee or any Owner Participant except as
otherwise expressly provided in this Agreement, in any Note Document or in any
related Intercreditor Agreement.
The Company is a party to this Agreement solely for purposes of
meeting the requirements of the Trust Indenture Act, and therefore shall not
have any right, obligation or liability hereunder, or under the terms of any
Trust Supplement or any Certificates (except as otherwise expressly provided
herein or therein).
Section 3.10. CUSIP Numbers. The Certificates may include "CUSIP"
numbers (if then generally in use), and if so, the Trustee may use the CUSIP
numbers in notices in respect of the Certificates; provided, however, that any
such notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Certificates, that
reliance may be placed only on the other identification numbers printed on the
Certificates, and any such notice shall not be affected by any defect or
omission of such CUSIP numbers.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account. (a)
The Trustee shall establish and maintain on behalf of the Certificateholders of
each series a Certificate Account as one or more non-interest-bearing accounts.
The Trustee shall hold such Certificate Account in trust for the benefit of the
Certificateholders of such series, and shall make or permit withdrawals
therefrom only as provided in this Agreement or any Intercreditor Agreement. On
each day when a Scheduled Payment is made to the Trustee or the Subordination
Agent, as the case may be, as holder of the Equipment Notes issued under the
related Indenture, with respect to the Certificates of any series,
25
32
the Trustee, upon receipt of the payments to it, shall immediately deposit the
aggregate amount of such Scheduled Payment in the applicable Certificate
Account.
(b) The Trustee shall establish and maintain on behalf of the
Certificateholders of each series a Special Payments Account as one or more
accounts, which shall be non-interest bearing except as provided in Section
4.04. The Trustee shall hold the Special Payments Account in trust for the
benefit of the Certificateholders of such series and shall make or permit
withdrawals therefrom only as provided in this Agreement or any Intercreditor
Agreement. On each day when one or more Special Payments are made to the
Trustee or the Subordination Agent, as the case may be, as holder of the
Equipment Notes issued under the related Indenture or to the Trustee pursuant
to the last two paragraphs of Section 2.02(b) with respect to the Certificates
of any series, the Trustee, upon receipt of the payments to it, shall
immediately deposit the aggregate amount of such Special Payments in the
applicable Special Payments Account.
(c) The Trustee shall present (or, if applicable, cause the
Subordination Agent to present) to the Loan Trustee to which an Equipment Note
relates such Equipment Note on the date of its stated final maturity or, in the
case of any Equipment Note which is to be redeemed or purchased in whole
pursuant to the related Indenture, on the applicable redemption or purchase
date under such Indenture.
Section 4.02. Distributions from Certificate Account and Special
Payments Account. (a) Subject to the provisions of any Intercreditor Agreement,
on each Regular Distribution Date with respect to a series of Certificates or
as soon thereafter as the Trustee has confirmed receipt of the payment of all
or any part of the Scheduled Payments due on the Equipment Notes held in the
related Trust on such date, the Trustee shall distribute out of the applicable
Certificate Account the entire amount deposited therein pursuant to Section
4.01(a). There shall be so distributed to each Certificateholder of record of
such series on the Record Date with respect to such Regular Distribution Date
(other than as provided in Section 11.01 concerning the final distribution) by
check mailed to such Certificateholder, at the address appearing in the
Register, such Certificateholder's pro rata share (based on the aggregate
Fractional Undivided Interest in the related Trust held by such
Certificateholder) of the total amount in the applicable Certificate Account,
except that, with respect to Certificates registered on the Record Date in the
name of a Clearing Agency (or its nominee), such distribution shall be made by
wire transfer in immediately available funds to the account designated by such
Clearing Agency (or such nominee).
(b) Subject to the provisions of any Intercreditor Agreement, on each
Special Distribution Date with respect to any Special Payment with respect to a
series of Certificates or as soon thereafter as the Trustee has confirmed
receipt of any Special Payments due on the Equipment Notes held in the related
Trust or realized upon the sale of such Equipment Notes, the Trustee shall
distribute out of the applicable Special Payments Account the entire amount of
such applicable Special Payment deposited therein pursuant to Section 4.01(b).
There shall be so distributed to each Certificateholder of record of such
series on the Record Date with respect to such Special Distribution Date (other
than
26
33
as provided in Section 11.01 concerning the final distribution) by check
mailed to such Certificateholder, at the address appearing in the Register,
such Certificateholder's pro rata share (based on the aggregate Fractional
Undivided Interest in the related Trust held by such Certificateholder) of the
total amount in the applicable Special Payments Account on account of such
Special Payment, except that, with respect to Certificates registered on the
Record Date in the name of a Clearing Agency (or its nominee), such
distribution shall be made by wire transfer in immediately available funds to
the account designated by such Clearing Agency (or such nominee).
(c) The Trustee shall, at the expense of the Company, cause notice of
each Special Payment with respect to a series of Certificates to be mailed to
each Certificateholder of such series at his address as it appears in the
Register. Subject to the provisions of any Intercreditor Agreement: (i) in the
event of redemption or purchase of Equipment Notes held in the related Trust,
such notice shall be mailed not less than 15 days prior to the Special
Distribution Date for the Special Payment resulting from such redemption or
purchase, which Special Distribution Date shall be the date of such redemption
or purchase; (ii) in the event that the Trustee receives a notice from the
Company pursuant to Section 2.02(b) that Postponed Notes will not be purchased
by the Trustee, such notice of Special Payment shall be mailed as soon as
practicable after receipt of such notice from the Company and shall state the
Special Distribution Date for such Special Payment, which shall occur 15 days
after the date of such notice of Special Payment or (if such 15th day is not
practicable) as soon as practicable thereafter; (iii) in the event that any
Special Payment is to be made pursuant to the last paragraph of Section
2.02(b), such notice of Special Payment shall be mailed on the Cut-off Date
(or, if such mailing on the Cut-off Date is not practicable, as soon as
practicable after the Cut-off Date) and shall state the Special Distribution
Date for such Special Payment, which shall occur 15 days after the date of such
notice of Special Payment or (if such 15th day is not practicable) as soon as
practicable thereafter; and (iv) in the case of any other Special Payments,
such notice of Special Payment shall be mailed as soon as practicable after the
Trustee has confirmed that it has received funds for such Special Payment and
shall state the Special Distribution Date for such Special Payment, which shall
occur 15 days after the date of such notice of Special Payment or (if such 15th
day is not practicable) as soon as practicable thereafter. Notices mailed by
the Trustee as provided in the paragraphs above shall set forth:
(i) the Special Distribution Date and the Record Date therefor (except
as otherwise provided in Section 11.01);
(ii) the amount of the Special Payment (taking into account any
payment to be made by the Responsible Party pursuant to Section 2.02(b)) for
each $1,000 face amount Certificate and the amount thereof constituting
principal, premium, if any, and interest;
(iii) the reason for the Special Payment; and
27
34
(iv) if the Special Distribution Date is the same date as a Regular
Distribution Date for the Certificates of such series, the total amount to be
received on such date for each $1,000 face amount Certificate.
If the amount of premium, if any, payable upon the redemption or
purchase of an Equipment Note has not been calculated at the time that the
Trustee mails notice of a Special Payment, it shall be sufficient if the notice
sets forth the other amounts to be distributed and states that any premium
received will also be distributed.
If any redemption or purchase of the Equipment Notes held in any Trust
is cancelled, the Trustee, as soon as possible after learning thereof, shall
cause notice thereof to be mailed to each Certificateholder of the related
series at its address as it appears on the Register.
Section 4.03. Statements to Certificateholders. (a) On each Regular
Distribution Date and Special Distribution Date, the Trustee will include with
each distribution to Certificateholders of the related series a statement,
giving effect to the distribution to be made on such Regular Distribution Date
or Special Distribution Date, and, except to the extent otherwise provided in
the applicable Trust Supplement, setting forth the following information (per
$1,000 aggregate face amount of Certificate as to (i) and (ii) below):
(i) the amount of such distribution allocable to principal and the
amount allocable to premium, if any;
(ii) the amount of such distribution allocable to interest; and
(iii) the Pool Balance and the Pool Factor of the related Trust.
With respect to the Certificates registered in the name of a Clearing
Agency or its nominee, on the Record Date prior to each Regular Distribution
Date and Special Distribution Date, the Trustee will request from the Clearing
Agency a securities position listing setting forth the names of all the
Clearing Agency Participants reflected on the Clearing Agency's books as
holding interests in the Certificates on such Record Date. On each Regular
Distribution Date and Special Distribution Date, the applicable Trustee will
mail to each such Clearing Agency Participant the statement described above and
will make available additional copies as requested by such Clearing Agency
Participants for forwarding to holders of interests in the Certificates.
(b) Within a reasonable period of time after the end of each calendar
year but not later than the latest date permitted by law, except to the extent
otherwise provided in the applicable Trust Supplement, the Trustee shall
furnish to each Person who at any time during such calendar year was a
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i) and (a)(ii) above with respect to the
related Trust for such calendar year or, in the event such Person was a
Certificateholder of record during a portion of such calendar year, for the
28
35
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 statement and such other items shall
be prepared on the basis of information supplied to the Trustee by the Clearing
Agency Participants and shall be delivered by the Trustee to such Clearing
Agency Participants to be available for forwarding by such Clearing Agency
Participants to the holders of interests in the Certificates in the manner
described in Section 4.03(a).
Section 4.04. Investment of Special Payment Moneys. Any money received
by the Trustee pursuant to Section 4.01(b) representing a Special Payment which
is not distributed on the date received shall, to the extent practicable, be
invested by the Trustee in Permitted Investments selected by the Company in
telephonic (confirmed in writing) or written instructions to the Trustee
pending distribution of such Special Payment pursuant to Section 4.02. Any
investment made pursuant to this Section 4.04 shall be in such Permitted
Investments having maturities not later than the date that such moneys are
required to be used to make the payment required under Section 4.02 on the
applicable Special Distribution Date and the Trustee shall hold any such
Permitted Investments until maturity. Absent receipt of instructions from the
Company, such Special Payment shall remain uninvested by the Trustee pending
receipt of investment instructions. The Trustee shall have no liability with
respect to any investment made pursuant to this Section 4.04, other than by
reason of the willful misconduct or negligence of the Trustee. All income and
earnings from such investments shall be distributed on such Special
Distribution Date as part of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence.The Company, at its
own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises, except as otherwise specifically permitted in Section 5.02;
provided, however, that the Company shall not be required to preserve any right
or franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
Section 5.02. Consolidation, Merger, Etc. (a) The Company shall not
consolidate with or merge into any other corporation under circumstances where
the Company is not the surviving corporation or convey, transfer or lease
substantially all of its assets as an entirety to any Person unless the
corporation formed by such consolidation or into which the Company is merged or
the Person that acquires by conveyance, transfer or lease substantially all of
the assets of the Company as an entirety shall be organized and validly
existing under the laws of the United States of America or any state thereof or
the District of Columbia, and such corporation or Person shall execute and
29
36
deliver to the Trustee an agreement in form and substance reasonably
satisfactory to the Trustee containing an assumption by such successor
corporation or Person of the due and punctual performance and observance of
each covenant and condition of this Agreement.
(b) Upon any consolidation or merger, or any conveyance, transfer or
lease of substantially all of the assets of the Company as an entirety in
accordance with this Section 5.02, the successor corporation or Person formed
by such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Agreement
with the same effect as if such successor corporation or Person had been named
as the Company herein.
(c) The Trustee may receive an Officer's Certificate and an Opinion of
Counsel of the Company as conclusive evidence that any such consolidation,
merger, conveyance, transfer or lease, and any such assumption, complies with
the provisions of this Section 5.02.
ARTICLE VI
DEFAULT
Section 6.01. Indenture Events of Default and Triggering Events. (a)
If in respect of any Trust, any Event of Default shall occur and be continuing,
then, and in each and every case, so long as such Event of Default shall be
continuing and subject to the provisions of any Intercreditor Agreement, the
Trustee may vote all of the Equipment Notes issued under the related Indenture
and held in such Trust, and, upon the direction of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests in such Trust
aggregating not less than a majority in interest in such Trust, the Trustee
shall vote not less than a corresponding majority of such Equipment Notes in
favor of directing the Loan Trustee under such Indenture to declare the unpaid
principal amount of the Equipment Notes then outstanding to which such Event of
Default relates and accrued interest thereon to be due and payable under, and
in accordance with the provisions of, the relevant Indenture. In addition, if
an Indenture Event of Default shall have occurred and be continuing under any
Indenture, subject to the provisions of any Intercreditor Agreement, the
Trustee may in accordance with the relevant Indenture vote the Equipment Notes
held in the Trust to which such Event of Default relates to direct the Loan
Trustee regarding the exercise of remedies provided in such Indenture.
(b) In addition, after an Event of Default shall have occurred and be
continuing with respect to any Equipment Note, subject to the provisions of any
Intercreditor Agreement, the Trustee may in its discretion, and upon the
direction of the Certificateholders holding Certificates evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in the
related Trust shall, by such officer or agent as it may appoint, sell, convey,
transfer and deliver such Equipment Note or Equipment Notes, without recourse
to or warranty by the Trustee or any Certificateholder,
30
37
to any Person. In any such case, the Trustee shall sell, assign, contract to
sell or otherwise dispose of and deliver such Equipment Note or Equipment Notes
in one or more parcels at public or private sale or sales, at any location or
locations at the option of the Trustee, all upon such terms and conditions as
it may reasonably deem advisable and at such prices as it may reasonably deem
advisable, for cash. If the Trustee so decides or is required to sell or
otherwise dispose of any Equipment Note pursuant to this Section, the Trustee
shall take such of the actions described above as it may reasonably deem most
effectual to complete the sale or other disposition of such Equipment Note, so
as to provide for the payment in full of all amounts due on the related series
of Certificates. Notwithstanding the foregoing, any action taken by the Trustee
under this Section shall not, in the reasonable judgment of the Trustee, be
adverse to the best interests of the Certificateholders of such series.
(c) If an Intercreditor Agreement is applicable, upon the occurrence
and during the continuation of any Indenture Event of Default under any
Indenture, the Trustee may, to the extent it is the Controlling Party at such
time (as determined pursuant to the related Intercreditor Agreement), direct
the exercise of remedies as provided in such related Intercreditor Agreement.
(d) If an Intercreditor Agreement is applicable, by acceptance of its
Certificate, each Certificateholder agrees that at any time after the
occurrence and during the continuation of a Triggering Event, each
Certificateholder of Certificates of certain series (each, a "Potential
Purchaser" and, collectively, the "Potential Purchasers") may have certain
rights to purchase the Certificates of one or more other series, all as set
forth in the Trust Supplement applicable to the Certificates held by such
Potential Purchaser. The purchase price with respect to the Certificates of any
series, and the procedure for such purchase, shall be specified in such Trust
Supplement or the applicable Intercreditor Agreement. By acceptance of its
Certificate, each Certificateholder (each, a "Selling Certificateholder" and,
collectively, the "Selling Certificateholders") of a series that is subject to
purchase by Potential Purchasers, all as set forth in the Trust Supplement
applicable to the Certificates held by the Selling Certificateholders, agrees
that, at any time after the occurrence and during the continuance of a
Triggering Event, it will, upon payment of the applicable purchase price by one
or more Potential Purchasers (upon such purchase, a "Purchasing
Certificateholder"), forthwith sell, assign, transfer and convey to such
Purchasing Certificateholder (without recourse, representation or warranty of
any kind except for its own acts) all of the right, title, interest and
obligation of such Selling Certificateholder in this Agreement, any related
Intercreditor Agreement, any related Liquidity Facility, the related Note
Documents and all Certificates of such series held by such Selling
Certificateholder (excluding all right, title and interest under any of the
foregoing to the extent such right, title or interest is with respect to an
obligation not then due and payable as respects any action or inaction or state
of affairs occurring prior to such sale) and the Purchasing Certificateholder
shall assume all of such Selling Certificateholder's obligations under this
Agreement, any related Intercreditor Agreement, any related Liquidity Facility
and the related Note Documents. The Certificates of such series will be deemed
to be purchased on the date payment of the purchase price is made
notwithstanding the failure of any Selling Certificateholder to deliver any
Certificates of such series and, upon such a purchase, (i) the only rights of
the Selling
31
38
Certificateholders will be to deliver the Certificates to the Purchasing
Certificateholder and receive the purchase price for such Certificates of such
series and (ii) if the Purchasing Certificateholder shall so request, such
Selling Certificateholder will comply with all of the provisions of Section
3.04 hereof to enable new Certificates of such series to be issued to the
Purchasing Certificateholder in such denominations as it shall request. All
charges and expenses in connection with the issuance of any such new
Certificates shall be borne by the Purchasing Certificateholder.
Section 6.02. Incidents of Sale of Equipment Notes. Upon any sale of
all or any part of the Equipment Notes held in the Trust made either under the
power of sale given under this Agreement or otherwise for the enforcement of
this Agreement, the following shall be applicable:
(1) Certificateholders and Trustee May Purchase Equipment Notes.
Any Certificateholder, the Trustee in its individual or any
other capacity or any other Person may bid for and purchase
any of the Equipment Notes held in the Trust, and upon
compliance with the terms of sale, may hold, retain, possess
and dispose of such Equipment Notes in their own absolute
right without further accountability.
(2) Receipt of Trustee Shall Discharge Purchaser. The receipt of
the Trustee making such sale shall be a sufficient discharge
to any purchaser for its purchase money, and, after paying
such purchase money and receiving such receipt, such
purchaser or its personal representative or assigns shall not
be obliged to see to the application of such purchase money,
or be in any way answerable for any loss, misapplication or
non-application thereof.
(3) Application of Moneys Received Upon Sale. Any moneys
collected by the Trustee upon any sale made either under the
power of sale given by this Agreement or otherwise for the
enforcement of this Agreement shall be applied as provided in
Section 4.02. In the event that the proceeds of such sale of
Equipment Notes are less than the principal amount of the
Certificates of such series Outstanding, the
Certificateholders shall have no claim for such shortfall
against the Company, the Trustee or any other Person
including the related Owner Trustee or related Owner
Participant, if any.
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May
Bring Suit. If there shall be a failure to make payment of the principal of,
premium, if any, or interest on any Equipment Note held in the related Trust,
or if there shall be any failure to pay Rent (as defined in the relevant Lease)
under any Lease when due and payable, then the Trustee, in its own name and as
trustee of an express trust, as holder of such Equipment Notes, to the extent
permitted by and in accordance with the terms of any related Intercreditor
Agreement and any related Note Documents (subject to rights of the applicable
Owner Trustee or Owner Participant, if any, to cure any such failure to pay
principal of, premium, if any, or interest on any Equipment Note or to pay Rent
under any Lease in
32
39
accordance with the applicable Indenture and to the rights of the Lessee under
any applicable Lease), shall be entitled and empowered to institute any suits,
actions or proceedings at law, in equity or otherwise, for the collection of
the sums so due and unpaid on such Equipment Notes or under such Lease and may
prosecute any such claim or proceeding to judgment or final decree with respect
to the whole amount of any such sums so due and unpaid.
All rights of action and of asserting claims under this Agreement, or
under any of the Certificates, may be prosecuted and enforced by the Trustee
without the possession of any of such Certificates or the production thereof in
any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Certificateholders of the related series.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Agreement, any Trust
Supplement or any Intercreditor Agreement to which the Trustee shall be a
party) the Trustee shall be held to represent all the Certificateholders of the
related series, and it shall not be necessary to make any such
Certificateholders parties to any such proceedings.
Section 6.04. Control by Certificateholders. Subject to Section 6.03
and any related Intercreditor Agreement, the Certificateholders holding
Certificates of a series evidencing Fractional Undivided Interests aggregating
not less than a majority in interest in the related Trust shall have the right
to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee with respect to such Trust or pursuant to the
terms of such Intercreditor Agreement, or exercising any trust or power
conferred on the Trustee under this Agreement or such Intercreditor Agreement,
including any right of the Trustee as Controlling Party under such
Intercreditor Agreement or as holder of the Equipment Notes held in the related
Trust; provided that:
(1) such Direction shall not in the opinion of the Trustee be in
conflict with any rule of law or with this Agreement and
would not involve the Trustee in personal liability or
expense;
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Certificateholders of
such series not taking part in such Direction;
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such Direction; and
(4) if an Event of Default under a related Indenture shall have
occurred and be continuing, such direction shall not obligate
the Trustee to vote more than a corresponding majority of the
related Equipment Notes held by the Trust in favor of
directing any action by the related Loan Trustee with respect
to such Event of Default.
33
40
Section 6.05. Waiver of Past Defaults. Subject to any related
Intercreditor Agreement, the Certificateholders holding Certificates of a
series evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in the related Trust (i) may on behalf of all of the
Certificateholders of such series waive any past default or Event of Default
hereunder and its consequences or (ii) if the Trustee is the Controlling Party,
may direct the Trustee to instruct the applicable Loan Trustee to waive any
past Indenture default, Indenture Event of Default or, if applicable, the
corresponding Lease default, under any related Indenture and its consequences,
and thereby annul any Direction given by such Certificateholders or the Trustee
to such Loan Trustee with respect thereto, except a default:
(1) in the deposit of any Scheduled Payment or Special Payment
under Section 4.01 or in the distribution of any payment
under Section 4.02 on the Certificates of a series; or
(2) in the payment of the principal of, premium, if any, or
interest on the Equipment Notes held in the related Trust; or
(3) in respect of a covenant or provision hereof which under
Article IX hereof cannot be modified or amended without the
consent of each Certificateholder holding an Outstanding
Certificate of the series affected thereby.
Upon any such waiver, such default shall cease to exist with respect
to the Certificates of such series and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose in respect of such series
and any direction given by the Trustee on behalf of the Certificateholders of
such series to the relevant Loan Trustee shall be annulled with respect
thereto; but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon. Upon any such waiver,
the Trustee shall vote the Equipment Notes issued under the relevant Indenture
to waive the corresponding Indenture Event of Default (and, if applicable, the
corresponding Lease default).
Section 6.06. Right of Certificateholders to Receive Payments Not to
Be Impaired. Anything in this Agreement (including Section 6.07) to the
contrary notwithstanding, but subject to any related Intercreditor Agreement,
the right of any Certificateholder to receive distributions of payments
required pursuant to Section 4.02 hereof on the applicable Certificates when
due, or to institute suit for the enforcement of any such payment on or after
the applicable Regular Distribution Date or Special Distribution Date, shall
not be impaired or affected without the consent of such Certificateholder.
34
41
Section 6.07. Certificateholders May Not Bring Suit Except Under
Certain Conditions. A Certificateholder of any series shall not have the right
to institute any suit, action or proceeding at law or in equity or otherwise
with respect to this Agreement for the appointment of a receiver or for the
enforcement of any other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given written
notice to the Trustee of a continuing Event of Default;
(2) Certificateholders holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not
less than 25% of the related Trust shall have requested the
Trustee in writing to institute such action, suit or
proceeding and shall have offered to the Trustee indemnity as
provided in Section 7.03(e);
(3) the Trustee shall have refused or neglected to institute any
such action, suit or proceeding for 60 days after receipt of
such notice, request and offer of indemnity; and
(4) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by
Certificateholders holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the related Trust.
Except to the extent provided in any applicable Intercreditor
Agreement or in any applicable Trust Supplement, it is understood and intended
that no one or more of the Certificateholders of any series shall have any
right in any manner whatsoever hereunder or under the related Trust Supplement
or under the Certificates of such series to (i) surrender, impair, waive,
affect, disturb or prejudice any property in the Trust Property of the related
Trust, or the lien of any related Indenture on any property subject thereto, or
the rights of the Certificateholders of such series or the holders of the
related Equipment Notes, (ii) obtain or seek to obtain priority over or
preference with respect to any other such Certificateholder of such series or
(iii) enforce any right under this Agreement, except in the manner herein
provided and for the equal, ratable and common benefit of all the
Certificateholders of such series subject to the provisions of this Agreement.
Section 6.08. Remedies Cumulative. Every right or remedy given
hereunder to the Trustee or to any of the Certificateholders of any series
shall not be exclusive of any other right or remedy or remedies, and every such
right or remedy shall be cumulative and in addition to every other right or
remedy given hereunder or now or hereafter given by statute, law, equity or
otherwise. No delay or omission by the Trustee or of any such Certificateholder
in the exercise of any right, remedy or power or in the pursuance of any remedy
shall impair any such right, power or remedy or be construed to be a waiver of
any default on the part of the applicable Owner Trustee, if any, or the
Company, as the case may be, or to be an acquiescence therein.
35
42
Section 6.09. Discontinuance of Proceedings. If the Trustee or any
Certificateholder of any Series institutes any proceeding to enforce any right,
power or remedy under the related Trust, and such proceeding is discontinued or
abandoned for any reason or is determined adversely to the Trustee or such
Certificateholder, then and in every such case the applicable Owner Trustee, if
any, and the applicable Indenture Trustee, the Trustee, the Certificateholders
of such Series and the Company shall, subject to any determination in such
proceeding, be restored to their former positions and rights under such Trust
with respect to the Trust Property and all rights, remedies and powers of the
Trustee and such Certificateholders shall continue as if no such proceeding had
been instituted.
Section 6.10. Undertaking for Costs. All parties to this Agreement,
and each Certificateholder by acceptance of a Certificate, shall be deemed to
have agreed that, in any suit for the enforcement of any right or remedy under
this Agreement, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act or by any other applicable law; provided, however,
that neither this Section 6.10 nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company.
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities. (a) Except during
the continuance of an Event of Default in respect of a Trust, (1) the Trustee
undertakes to perform such duties in respect of such Trust as are specifically
set forth in this Agreement, the Intercreditor Agreement and the Note
Documents, and no implied covenants or obligations shall be read into such
agreements against the Trustee; and (2) in the absence of bad faith on its
part, the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Agreement; but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Agreement.
(b) In case an Event of Default in respect of a Trust has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Agreement in respect of such Trust, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
36
43
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) this Subsection (c) shall not be construed to limit the
effect of Subsection (a) of this Section 7.01; and
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts.
(d) Whether or not herein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 7.01.
Section 7.02. Notice of Defaults. As promptly as practicable after,
and in any event within 90 days after, the occurrence of any default (as such
term is defined below) hereunder known to the Trustee, the Trustee shall
transmit by mail to the Company, any related Owner Trustees, any related Owner
Participants, the related Loan Trustees and the Certificateholders holding
Certificates of the related series, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided that, in the case of defaults not relating to the payment of money,
the Trustee shall not give such notice until the earlier of the time at which
such default becomes an Event of Default and the expiration of 60 days from the
occurrence of such default; and provided, however, that, except in the case of
a default in the payment of the principal, premium, if any, or interest on any
Equipment Note, the Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
shall determine that the withholding of such notice is in the interests of the
Certificateholders of the related series. For the purpose of this Section 7.02
in respect of any Trust, the term "default" means any event that is, or after
notice or lapse of time or both would become, an Event of Default in respect of
that Trust or a Triggering Event under any Intercreditor Agreement.
Section 7.03. Certain Rights of Trustee.Subject to the provisions of
Section 315 of the Trust Indenture Act:
(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;
37
44
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Request;
(c) whenever in the administration of this Agreement or any
Intercreditor Agreement the Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an
Officer's Certificate of the Company, any related Owner Trustee or any related
Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement or any Intercreditor Agreement
at the Direction of any of the Certificateholders pursuant to this Agreement or
any Intercreditor Agreement, unless such Certificateholders shall have offered
to the Trustee reasonable security or indemnity against the cost, expenses and
liabilities which might be incurred by it in compliance with such Direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document;
(g) the Trustee may execute any of the trusts or powers under this
Agreement or any Intercreditor Agreement or perform any duties under this
Agreement or any Intercreditor Agreement either directly or by or through
agents or attorneys, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it under this Agreement or any Intercreditor Agreement;
(h) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the Direction of
the Certificateholders holding Certificates of any series evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in the
related Trust relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Agreement or any Intercreditor
Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds
in the performance of any of its duties under this Agreement, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk is not reasonably assured to it.
38
45
Section 7.04. Not Responsible for Recitals or Issuance of
Certificates. The recitals contained herein and in the Certificates of each
series, except the certificates of authentication, shall not be taken as the
statements of the Trustee, and the Trustee assumes no responsibility for their
correctness. Subject to Section 7.15, the Trustee makes no representations as
to the validity or sufficiency of this Basic Agreement, any Equipment Notes,
any Intercreditor Agreement, the Certificates of any series, any Trust
Supplement or any Note Documents, except that the Trustee hereby represents and
warrants that this Basic Agreement has been, and each Trust Supplement, each
Certificate, each Note Purchase Agreement and each Intercreditor Agreement of,
or relating to, each series will be, executed and delivered by one of its
officers who is duly authorized to execute and deliver such document on its
behalf.
Section 7.05. May Hold Certificates. The Trustee, any Paying Agent,
Registrar or any of their Affiliates or any other agent, in their respective
individual or any other capacity, may become the owner or pledgee of
Certificates and, subject to Sections 310(b) and 311 of the Trust Indenture
Act, if applicable, may otherwise deal with the Company, any Owner Trustees,
any Owner Participants or the Loan Trustees with the same rights it would have
if it were not Trustee, Paying Agent, Registrar or such other agent.
Section 7.06. Money Held in Trust. Money held by the Trustee or the
Paying Agent in trust under this Agreement need not be segregated from other
funds except to the extent required herein or by law and neither the Trustee
nor the Paying Agent shall have any liability for interest upon any such moneys
except as provided for herein or in the applicable Trust Supplement.
Section 7.07. Compensation and Reimbursement. The Company agrees:
(1) to pay, or cause to be paid, to the Trustee from time to time
such compensation for all services rendered by it hereunder
as the Company and the Trustee may agree in writing from time
to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee
of an express trust); and
(2) except as otherwise expressly provided herein or in any Trust
Supplement, to reimburse, or cause to be reimbursed, the
Trustee upon its request for all reasonable out-of-pocket
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Basic
Agreement, any Trust Supplement or any Intercreditor
Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except
any such expense, disbursement or advance as may be
attributable to the Trustee's negligence, willful misconduct
or bad faith or as may be incurred due to the Trustee's
breach of its representations and warranties set forth in
Section 7.15; and
(3) to indemnify, or cause to be indemnified, the Trustee, solely
in its individual capacity, for, and to hold it harmless
against, any loss, liability, tax (other than any
39
46
tax referred to in the next paragraph or any tax attributable
to the Trustee's compensation for serving as such), cost or
expense incurred without negligence, willful misconduct or
bad faith on its part, arising out of or in connection with
the acceptance or administration of any Trust, including the
costs and expenses of (a) defending itself against any claim
or liability in connection with the exercise or performance
of any of its powers or duties hereunder or under any Trust
Supplement or (b) contesting the imposition of any such tax,
except in each case for any such loss, liability, tax, cost
or expense incurred by reason of the Trustee's breach of its
representations and warranties set forth in Section 7.15 or
in any Trust Supplement or the Trustee's failure to perform
any of its obligations hereunder or under any Trust
Supplement. The Trustee shall notify the Company promptly of
any claim or tax for which it may seek indemnity. The Company
shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel with the
consent of the Company and the Company will pay the
reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made or any taxes paid, in
settlement or otherwise, without its consent.
The Trustee shall be entitled to reimbursement from, and shall have a
lien prior to the Certificates of each series upon, all property and funds held
or collected by the Trustee in its capacity as Trustee with respect to such
series or the related Trust for any tax incurred without negligence, bad faith
or willful misconduct, on its part, arising out of or in connection with the
acceptance or administration of such Trust (other than any tax attributable to
the Trustee's compensation for serving as such), including any costs and
expenses incurred in contesting the imposition of any such tax. The Trustee
shall notify the Company of any claim for any tax for which it may seek
reimbursement. If the Trustee reimburses itself from the Trust Property of such
Trust for any such tax, it will mail a brief report within 30 days setting
forth the amount of such tax and the circumstances thereof to all
Certificateholders of such series as their names and addresses appear in the
Register.
Section 7.08. Corporate Trustee Required; Eligibility. Each Trust
shall at all times have a Trustee which shall be a bank, trust company or other
financial institution organized and doing business under the laws of the United
States or any state thereof, shall be eligible to act as a trustee under
Section 310(a) of the Trust Indenture Act and shall have a combined capital and
surplus of at least $75,000,000 (or a combined capital and surplus in excess of
$5,000,000 and the obligations of which, whether now in existence or hereafter
incurred, are fully and unconditionally guaranteed by a corporation organized
and doing business under the laws of the United States or any state or
territory thereof or the District of Columbia and having a combined capital and
surplus of at least $75,000,000). If such bank, trust company or other
financial institution or such corporation publishes reports of conditions at
least annually, pursuant to law or to the requirements of federal, state,
territorial or District of Columbia supervising or examining authority, then
for the purposes of this Section 7.08 the combined capital and surplus of such
bank, trust company or other financial
40
47
institution or such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of conditions so published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.08 to act as Trustee of any
Trust, the Trustee shall resign immediately as Trustee of such Trust in the
manner and with the effect specified in Section 7.09. If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Agreement.
Section 7.09. Resignation and Removal; Appointment of Successor. (a)
No resignation or removal of the Trustee and no appointment of a successor
Trustee of any Trust pursuant to this Article VII shall become effective until
the acceptance of appointment by the successor Trustee under Section 7.10.
(b) The Trustee may resign at any time as Trustee of any or all Trusts
by giving prior written notice thereof to the Company, the Authorized Agents,
any related Owner Trustees and the related Loan Trustees. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Company,
any related Owner Trustees and the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time as Trustee of any Trust by
Direction of the Certificateholders of the related series holding Certificates
of such series evidencing Fractional Undivided Interests aggregating not less
than a majority in interest in such Trust delivered to the Trustee and to the
Company, any related Owner Trustees and the related Loan Trustees.
(d) If at any time in respect of any Trust:
(1) the Trustee shall fail to comply with Section 310(b) of the
Trust Indenture Act, if applicable, after written request
therefor by the Company or by any Certificateholder who has
been a bona fide Certificateholder for at least six months;
or
(2) the Trustee shall cease to be eligible under Section 7.08 and
shall fail to resign after written request therefor by the
Company or by any such Certificateholder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation;
41
48
then, in any such case, (i) the Company may remove the Trustee or (ii) any
Certificateholder of the related series who has been a bona fide
Certificateholder for at least six months may, on behalf of itself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee of such
Trust.
(e) If a Responsible Officer of the Trustee shall obtain actual
knowledge of an Avoidable Tax (as defined below) in respect of any Trust which
has been or is likely to be asserted, the Trustee shall promptly notify the
Company and shall, within 30 days of such notification, either relocate the
administration of the Trust to another jurisdiction as described in the
definition of "Avoidable Tax" or resign as Trustee of such Trust hereunder
unless within such 30-day period the Trustee shall have received notice that
the Company has agreed to pay such tax. Provided that there is a corporation in
a jurisdiction where there are no Avoidable Taxes that is willing to act as
Trustee and is eligible under Section 7.08, the Company shall promptly after
any such resignation by such Trustee appoint a successor Trustee of such Trust
in a jurisdiction where there are no Avoidable Taxes. As used herein, an
"Avoidable Tax" in respect of such Trust means a state or local tax: (i) upon
(w) such Trust, (x) the Trust Property of such Trust, (y) Certificateholders of
such Trust or (z) the Trustee for which the Trustee is entitled to seek
reimbursement from the Trust Property of such Trust, and (ii) which would be
avoided if the Trust were administered in a different jurisdiction in the
United States or if the Trustee were located in another state, or jurisdiction
within a state, within the United States. A tax shall not be an Avoidable Tax
in respect of any Trust if the Company or any Owner Trustee shall agree to pay,
and shall pay, such tax.
(f) If the Trustee shall resign, be removed or become incapable of
acting as Trustee of any Trust or if a vacancy shall occur in the office of the
Trustee of any Trust for any cause, the Company shall promptly appoint a
successor Trustee of such Trust. If, within one year after such resignation,
removal or incapability, or other occurrence of such vacancy, a successor
Trustee of such Trust shall be appointed by Direction of the Certificateholders
of the related series holding Certificates of such series evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in such
Trust delivered to the Company, any related Owner Trustees, the related Loan
Trustee and the retiring Trustee, then the successor Trustee of such Trust so
appointed shall, with the approval of the Company of such appointment, which
approval shall not be unreasonably withheld, forthwith upon its acceptance of
such appointment, become the successor Trustee of such Trust and supersede the
successor Trustee of such Trust appointed by the Company as provided above. If
no successor Trustee shall have been so appointed by the Company as provided
above and accepted appointment in the manner hereinafter provided, the
resigning Trustee or any Certificateholder who has been a bona fide
Certificateholder of the related series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee of such Trust.
(g) The successor Trustee of a Trust shall give notice of the
resignation and removal of the Trustee and appointment of the successor Trustee
by mailing written notice of such event by first-class mail, postage prepaid,
to the Certificateholders of the related series as their names and
42
49
addresses appear in the Register. Each notice shall include the name of such
successor Trustee and the address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute and deliver to the Company and to the
retiring Trustee with respect to any or all Trusts an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
with respect to such Trust or Trusts shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to such Trust or Trusts; but, on request of the Company or the successor
Trustee, such retiring Trustee shall execute and deliver an instrument
transferring to such successor Trustee all such rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all Trust Property held by such retiring Trustee in respect
of such Trusts hereunder, subject nevertheless to its lien, if any, provided
for in Section 7.07 and all books and records, or true, correct and complete
copies thereof, held by such retiring Trustee in respect of such Trusts
hereunder. Upon request of any such successor Trustee, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver any and
all instruments containing such provisions as shall be necessary or desirable
to transfer and confirm to, and for more fully and certainly vesting in, such
successor Trustee all such rights, powers and trusts.
If a successor Trustee is appointed with respect to one or more (but
not all) Trusts, the Company, the predecessor Trustee and each successor
Trustee with respect to any Trust shall execute and deliver a supplemental
agreement hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all of the rights, powers, trusts and
duties of the predecessor Trustee with respect to the Trusts as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Basic Agreement and the applicable Trust Supplements as shall be necessary to
provide for or facilitate the administration of the Trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental agreement shall constitute such Trustees as co-Trustees of the
same Trust and that each such Trustee shall be Trustee of separate Trusts.
No institution shall accept its appointment as a successor Trustee
hereunder unless at the time of such acceptance such institution shall be
qualified and eligible under this Article VII.
Section 7.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article VII, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Certificates shall
have been executed or authenticated, but not delivered, by the Trustee then in
43
50
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such execution or authentication and deliver
the Certificates so executed or authenticated with the same effect as if such
successor Trustee had itself executed or authenticated such Certificates.
Section 7.12. Maintenance of Agencies. (a) With respect to each series
of Certificates, there shall at all times be maintained an office or agency in
the location set forth in Section 12.04 where Certificates of such series may
be presented or surrendered for registration of transfer or for exchange, and
for payment thereof, and where notices and demands to or upon the Trustee in
respect of such Certificates or this Agreement may be served; provided that, if
it shall be necessary that the Trustee maintain an office or agency in another
location with respect to the Certificates of any series (e.g., the Certificates
of such series shall be represented by Definitive Certificates and shall be
listed on a national securities exchange), the Trustee will make all reasonable
efforts to establish such an office or agency. Written notice of the location
of each such other office or agency and of any change of location thereof shall
be given by the Trustee to the Company, any Owner Trustees, the Loan Trustees
(in the case of any Owner Trustee or Loan Trustee, at its address specified in
the Note Documents or such other address as may be notified to the Trustee) and
the Certificateholders of such series. In the event that no such office or
agency shall be maintained or no such notice of location or of change of
location shall be given, presentations and demands may be made and notices may
be served at the Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder with respect to the Certificates of each series. Each such Authorized
Agent shall be a bank, trust company or other financial institution organized
and doing business under the laws of the United States or any state thereof,
with a combined capital and surplus of at least $75,000,000 (or combined
capital and surplus in excess of $5,000,000, the obligations of which are fully
and unconditionally guaranteed by a corporation organized and doing business
under the laws of the United States or any state or territory thereof or the
District of Columbia, with a combined capital and surplus of at least
$75,000,000), and shall be authorized under such laws to exercise corporate
trust powers, subject to supervision by federal or state authorities. The
Trustee shall initially be the Paying Agent and, as provided in Section 3.04,
Registrar hereunder with respect to the Certificates of each series. Each
Registrar shall furnish to the Trustee, at stated intervals of not more than
six months, and at such other times as the Trustee may request in writing, a
copy of the Register maintained by such Registrar.
(c) Any corporation into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authorized Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authorized Agent, shall be the successor of such Authorized Agent, if
such successor corporation is otherwise eligible under this Section 7.12,
without the execution or filing of any paper or any further act on the part of
the parties hereto or such Authorized Agent or such successor corporation.
44
51
(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Trustee, the Company, any related Owner Trustees
and the related Loan Trustees. The Company may, and at the request of the
Trustee shall, at any time terminate the agency of any Authorized Agent by
giving written notice of termination to such Authorized Agent and to the
Trustee. Upon the resignation or termination of an Authorized Agent or in case
at any time any such Authorized Agent shall cease to be eligible under this
Section 7.12 (when, in either case, no other Authorized Agent performing the
functions of such Authorized Agent shall have been appointed), the Company
shall promptly appoint one or more qualified successor Authorized Agents,
reasonably satisfactory to the Trustee, to perform the functions of the
Authorized Agent which has resigned or whose agency has been terminated or who
shall have ceased to be eligible under this Section 7.12. The Company shall
give written notice of any such appointment made by it to the Trustee, any
related Owner Trustees and the related Loan Trustees; and in each case the
Trustee shall mail notice of such appointment to all Certificateholders of the
related series as their names and addresses appear on the Register for such
series.
(e) The Company agrees to pay, or cause to be paid, from time to time
to each Authorized Agent such compensation for its services as the Company and
the Trustee may agree in writing from time to time and to reimburse it for its
reasonable expenses to the extent set forth in Section 7.07(2).
Section 7.13. Money for Certificate Payments to Be Held in Trust. All
moneys deposited with any Paying Agent for the purpose of any payment on
Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of this
Section 7.13. Moneys so deposited and held in trust shall constitute a separate
trust fund for the benefit of the Certificateholders with respect to which such
money was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.14. Registration of Equipment Notes in Trustee's Name.
Subject to the provisions of any Intercreditor Agreement and Section 12.03
hereof, the Trustee agrees that all Equipment Notes to be purchased by any
Trust, Specified Investments, if any, to be held by the Trustee on behalf of a
Trust and Permitted Investments, if any, to be held by the Trustee on behalf of
a Trust shall be issued in the name of the Trustee as trustee for the
applicable Trust or its nominee and held by the Trustee in trust for the
benefit of the Certificateholders of such series, or, if not so held, the
Trustee or its nominee shall be reflected as the owner of such Equipment Notes,
Specified Investments or Permitted Investments, as the case may be, in the
register of the issuer of such Equipment Notes, Specified Investments or
Permitted Investments, as the case may be. In no event shall the Trustee invest
in, or hold, Equipment Notes, Specified Investments or Permitted
45
52
Investments in a manner that would cause the Trustee not to have the ownership
interest in (or a securities entitlement with respect to) such Equipment Notes,
Specified Investments or Permitted Investments under the applicable provisions
of the Uniform Commercial Code in effect where the Trustee holds such Equipment
Notes, Specified Investments or Permitted Investments or other applicable law
then in effect.
Section 7.15. Representations and Warranties of Trustee. The Trustee
hereby represents and warrants that:
(a) the Trustee is a national banking association duly organized and
validly existing in good standing under the laws of the United States;
(b) the Trustee has full power, authority and legal right to execute,
deliver and perform this Agreement, any Intercreditor Agreement, the
Certificates and the Note Purchase Agreements and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Agreement, any Intercreditor Agreement, the Certificates and the Note Purchase
Agreements;
(c) the execution, delivery and performance by the Trustee of this
Agreement, any Intercreditor Agreement, the Certificates and the Note Purchase
Agreements (i) will not violate any provision of any United States federal law
or the law of the state of the United States where such Trustee is located and
which governs the banking and trust powers of the Trustee or any order, writ,
judgment, or decree of any court, arbitrator or governmental authority
applicable to the Trustee or any of its assets, (ii) will not violate any
provision of the articles of association or by-laws of the Trustee, and (iii)
will not violate any provision of, or constitute, with or without notice or
lapse of time or both, a default under, or result in the creation or imposition
of any lien on any properties included in the Trust Property pursuant to the
provisions of any mortgage, indenture, contract, agreement or other undertaking
to which it is a party;
(d) the execution, delivery and performance by the Trustee of this
Agreement, any Intercreditor Agreement, the Certificates and the Note Purchase
Agreements will not require the authorization, consent, or approval of, the
giving of notice to, the filing or registration with, or the taking of any
other action in respect of, any governmental authority or agency of the United
States or the state of the United States where such Trustee is located and
regulating the banking and corporate trust activities of the Trustee;
(e) this Agreement, any Intercreditor Agreement, the Certificates and
the Note Purchase Agreements have been or will be duly executed and delivered
by the Trustee and constitute or upon such execution and delivery will
constitute the legal, valid and binding agreements of the Trustee, enforceable
against it in accordance with their respective terms; provided, however, that
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors
generally, and (ii) general principles of equity; and
46
53
(f) the statements made by it in a Statement of Eligibility on Form
T-1 supplied or to be supplied to the Company in connection with the
registration of any Certificates are and will be true and accurate subject to
the qualifications set forth therein; and that such statement complies and will
comply in all material respects with the requirements of the Trust Indenture
Act and the Securities Act.
The representation and warranties set forth above shall be deemed to
be made by the Trustee on each Issuance Date, except as otherwise provided in
the applicable Trust Supplement.
Section 7.16. Withholding Taxes; Information Reporting. As to the
Certificates of any series, the Trustee, as trustee of the related grantor
trust created by this Agreement, shall exclude and withhold from each
distribution of principal, premium, if any, and interest and other amounts due
under this Agreement or under the Certificates of such series any and all
withholding taxes applicable thereto as required by law. The Trustee agrees to
act as such withholding agent and, in connection therewith, whenever any
present or future taxes or similar charges are required to be withheld with
respect to any amounts payable in respect of the Certificates of such series,
to withhold such amounts and timely pay the same to the appropriate authority
in the name of and on behalf of the Certificateholders of such series, that it
will file any necessary withholding tax returns or statements when due, and
that, as promptly as possible after the payment thereof, it will deliver to
each such Certificateholder of such series appropriate documentation showing
the payment thereof, together with such additional documentary evidence as such
Certificateholders may reasonably request from time to time. The Trustee agrees
to file any other information reports as it may be required to file under
United States law.
Section 7.17. Trustee's Liens. The Trustee in its individual capacity
agrees that it will, in respect of each Trust created by this Agreement, at its
own cost and expense (and without right of indemnity hereunder, including
Section 7.07), promptly take any action as may be necessary to duly discharge
and satisfy in full any mortgage, pledge, lien, charge, encumbrance, security
interest or claim ("Trustee's Liens") on or with respect to the Trust Property
of such Trust which is attributable to the Trustee either (i) in its individual
capacity and which is unrelated to the transactions contemplated by this
Agreement or the related Note Documents or (ii) as Trustee hereunder or in its
individual capacity and which arises out of acts or omissions which are not
contemplated by this Agreement.
Section 7.18. Preferential Collection of Claims. The Trustee shall
comply with Section 311(a) of the Trust Indenture Act, excluding any creditor
relationship listed in Section 311(b) of the Trust Indenture Act. If the
Trustee shall resign or be removed as Trustee, it shall be subject to Section
311(a) of the Trust Indenture Act to the extent provided therein.
Section 7.19. Capacity in Which Acting. The Trustee acts hereunder and
under any Trust not in its individual capacity but solely as trustee except as
expressly provided herein or in the related Trust Supplement.
47
54
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and Addresses
of Certificateholders. With respect to the Certificates of each series, the
Company will furnish (or cause to be furnished) to the Trustee within 15 days
after each Record Date with respect to a Scheduled Payment (and, in any case,
at intervals of not more than six months), and at such other times as the
Trustee may request in writing within 30 days after receipt by the Company of
any such request, a list, in such form as the Trustee may reasonably require,
of all information in the possession or control of the Company as to the names
and addresses of the Certificateholders of such series, in each case as of a
date not more than 15 days prior to the time such list is furnished; provided,
however, that so long as the Trustee is the sole Registrar for such series, no
such list need be furnished; and provided further, that no such list need be
furnished for so long as a copy of the Register is being furnished to the
Trustee pursuant to Section 7.12.
Section 8.02. Preservation of Information; Communications to
Certificateholders. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders of each
series contained in the most recent list furnished to the Trustee as provided
in Section 7.12 or Section 8.01, as the case may be, and the names and
addresses of Certificateholders of each series received by the Trustee in its
capacity as Registrar, if so acting. The Trustee may destroy any list furnished
to it as provided in Section 7.12 or Section 8.01, as the case may be, upon
receipt of a new list so furnished.
Section 8.03. Reports by Trustee. Within 60 days after May 15 of each
year commencing with the first full year following the issuance of any series
of Certificates, the Trustee shall transmit to the Certificateholders of such
series, as provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of such May 15, if required by and in compliance with Section
313(a) of the Trust Indenture Act. The Trustee shall also transmit to
Certificateholders such reports, if any, as may be required pursuant to Section
313(b) of the Trust Indenture Act at the times and in the manner provided
pursuant thereto and to Section 313(c) thereof.
Section 8.04. Reports by the Company. The Company shall:
(a) file with the Trustee, within 30 days after the Company is
required to file the same with the SEC, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may from time to time by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934, as amended;
or, if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the SEC,
in accordance with rules and regulations prescribed by the SEC, such of the
48
55
supplementary and periodic information, documents and reports which may be
required pursuant to section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with the rules
and regulations prescribed by the SEC, such additional information, documents
and reports with respect to compliance by the Company with the conditions and
covenants of the Company provided for in this Agreement, as may be required by
such rules and regulations;
(c) transmit to all Certificateholders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, such summaries of
any information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section 8.04 as may be required by
rules and regulations prescribed by the SEC; and
(d) furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants of the Company under this
Agreement (it being understood that for purposes of this paragraph (d), such
compliance shall be determined without regard to any grace period or
requirement of notice provided under this Agreement).
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders. Without the consent of any Certificateholders, the Company
may (but will not be required to), and the Trustee (subject to Section 9.03)
shall, at the Company's request, at any time and from time to time, enter into
one or more agreements supplemental hereto or, if applicable, to an
Intercreditor Agreement, a Note Purchase Agreement or a Liquidity Facility, for
any of the following purposes:
(1) to provide for the formation of a Trust, the issuance of a
series of Certificates and other matters contemplated by
Section 2.01(b); or
(2) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the
covenants of the Company herein contained or of the Company's
obligations under any Intercreditor Agreement, any Note
Purchase Agreement or any Liquidity Facility; or
(3) to add to the covenants of the Company for the benefit of the
Certificateholders of any series, or to surrender any right
or power conferred upon the Company in this
49
56
Agreement, any Note Purchase Agreement, any Intercreditor
Agreement or any Liquidity Facility; or
(4) to cure any ambiguity or to correct any mistake or
inconsistency contained herein or in any related Trust
Supplement, any Intercreditor Agreement or any Liquidity
Facility; or
(5) to make or modify any other provision in regard to matters or
questions arising under this Basic Agreement or any related
Trust Supplement, any Intercreditor Agreement or any
Liquidity Facility as the Company may deem necessary or
desirable and that will not materially adversely affect the
interests of the related Certificateholders; or
(6) to add to or change any of the provisions of this Agreement
or any Trust Supplement to such extent as shall be necessary
to facilitate the issuance of Certificates in bearer form or
to facilitate or provide for the issuance of Certificates in
global form in addition to or in place of Certificates in
certificated form; or
(7) to comply with any requirement of the SEC, any applicable
law, rules or regulations of any exchange or quotation system
on which the Certificates of any series are listed or of any
regulatory body; or
(8) to modify, eliminate or add to the provisions of this
Agreement, any Intercreditor Agreement or any Liquidity
Facility to such extent as shall be necessary to continue the
qualification of this Agreement, any Intercreditor Agreement
or any Liquidity Facility (including any supplemental
agreement) under the Trust Indenture Act or under any similar
Federal statute hereafter enacted, and to add to this
Agreement, any Intercreditor Agreement or any Liquidity
Facility such other provisions as may be expressly permitted
by the Trust Indenture Act, excluding, however, the
provisions referred to in Section 316(a)(2) of the Trust
Indenture Act as in effect at the date as of which this Basic
Agreement was executed or any corresponding provision in any
similar Federal statute hereafter enacted; or
(9) to evidence and provide for the acceptance of appointment by
a successor Trustee under this Agreement, any Intercreditor
Agreement, any Note Purchase Agreement, any Indenture or any
Liquidity Facility with respect to one or more Trusts and to
add to or change any of the provisions of this Agreement, any
Intercreditor Agreement or any Liquidity Facility as shall be
necessary to provide for or facilitate the administration of
the Trust hereunder and thereunder by more than one Trustee,
pursuant to the requirements of Section 7.10; or
(10) to provide the information required under Section 7.12 and
Section 12.04 as to the Trustee; or
50
57
(11) to provide for the delivery of agreements supplemental hereto
or the Certificates of any series in or by any means of any
computerized, electronic or other medium, including without
limitation by computer diskette; or
(12) to correct or supplement the description of any property
constituting property of such Trust; or
(13) to modify, eliminate or add to the provisions of this Basic
Agreement or any Trust Supplement in order to reflect the
substitution of a Substitute Aircraft for any aircraft; or
(14) to make any other amendments or modifications hereto,
provided that such amendments or modifications shall only
apply to Certificates of one or more series to be thereafter
issued;
provided, however, that no such supplemental agreement shall cause any Trust to
become an association taxable as a corporation for United States federal income
tax purposes.
Section 9.02. Supplemental Agreements with Consent of
Certificateholders. With respect to each separate Trust and the series of
Certificates relating thereto, with the consent of the Certificateholders
holding Certificates of such series (including consents obtained in connection
with a consent solicitation, tender offer or exchange offer for the
Certificates) evidencing Fractional Undivided Interests aggregating not less
than a majority in interest in such Trust, by Direction of said
Certificateholders delivered to the Company and the Trustee, the Company may
(with the consent of the Owner Trustees, if any, relating to such Certificates,
which consent shall not be unreasonably withheld), but shall not be obligated
to, and the Trustee (subject to Section 9.03) shall, enter into an agreement or
agreements supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement,
any Intercreditor Agreement or any Liquidity Facility to the extent applicable
to such Certificateholders or of modifying in any manner the rights and
obligations of such Certificateholders under this Agreement, any Intercreditor
Agreement or any Liquidity Facility; provided, however, that no such agreement
shall, without the consent of the Certificateholder of each Outstanding
Certificate adversely affected thereby:
(1) reduce in any manner the amount of, or delay the timing of,
any receipt by the Trustee of payments on the Equipment Notes
held in such Trust or distributions that are required to be
made herein on any Certificate of such series, or change any
date of payment on any Certificate of such series, or change
the place of payment where, or the coin or currency in which,
any Certificate of such series is payable (other than as
provided for in such certificate), or impair the right to
institute suit for the enforcement of any such payment or
distribution on or after the Regular Distribution Date or
Special Distribution Date applicable thereto; or
51
58
(2) except as permitted by this Agreement or the applicable
Intercreditor Agreement or Liquidity Facility, permit the
disposition of any Equipment Note included in the Trust
Property of such Trust or otherwise deprive such
Certificateholder of the benefit of the ownership of the
Equipment Notes in such Trust; or
(3) alter the priority of distributions specified in the relevant
Intercreditor Agreement, if any, in a manner materially
adverse to the interests of the Certificateholders of any
series; or
(4) modify any of the provisions of this Section 9.02 or Section
6.05 with respect to such series of Certificates, except to
increase the specified percentage of the aggregate Fractional
Undivided Interests of such Trust that is required for any
supplemental agreement or waiver of default as set forth
therein, or to provide that certain other provisions of this
Agreement cannot be modified or waived without the consent of
the Certificateholder of each Certificate of such series
affected thereby; or
(5) cause any Trust to become an association taxable as a
corporation for United States federal income tax purposes.
It shall not be necessary for any Direction of such Certificateholders
under this Section 9.02 to approve the particular form of any proposed
supplemental agreement, but it shall be sufficient if such Direction shall
approve the substance thereof.
Section 9.03. Documents Affecting Immunity or Indemnity. If in the
opinion of the Trustee any document required to be executed by it pursuant to
the terms of Section 9.01 or 9.02 affects any interest, right, duty, immunity
or indemnity in favor of the Trustee under this Basic Agreement or any Trust
Supplement, the Trustee may in its discretion decline to execute such document.
Section 9.04. Execution of Supplemental Agreements. In executing, or
accepting the additional trusts created by, any supplemental agreement
permitted by this Article IX or the modifications thereby of the trusts created
by this Agreement, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Agreement.
Section 9.05. Effect of Supplemental Agreements. Upon the execution of
any agreement supplemental to this Agreement under this Article IX, this
Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes, and every
Certificateholder of each series theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby to the extent applicable to such
series.
52
59
Section 9.06. Conformity with Trust Indenture Act. Every supplemental
agreement executed pursuant to this Article IX shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.07. Reference in Certificates to Supplemental Agreements.
Certificates of each series authenticated and delivered after the execution of
any supplemental agreement applicable to such series pursuant to this Article
IX may bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental agreement; and, in such case, suitable
notation may be made upon Outstanding Certificates of such series after proper
presentation and demand.
ARTICLE X
AMENDMENTS TO INDENTURES AND OTHER NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indentures and Other Note
Documents. In the event that the Trustee, as holder (or beneficial owner
through the Subordination Agent) of any Equipment Notes (or as a prospective
purchaser of any Postponed Notes) in trust for the benefit of the
Certificateholders of any series or as Controlling Party under an Intercreditor
Agreement, receives (directly or indirectly through the Subordination Agent) a
request for a consent to any amendment, modification, waiver or supplement
under any Indenture or other Note Document, subject to Section 9.01 hereof, the
Trustee shall forthwith send a notice of such proposed amendment, modification,
waiver or supplement to each Certificateholder of such series registered on the
Register as of the date of such notice. The Trustee shall request from the
Certificateholders of such series a Direction as to (a) whether or not to take
or refrain from taking (or direct the Subordination Agent to take or refrain
from taking) any action which a holder of (or, with respect to Postponed Notes,
a prospective purchaser of) such Equipment Note has the option to direct, (b)
whether or not to give or execute (or direct the Subordination Agent to give or
execute) any waivers, consents, amendments, modifications or supplements as a
holder of (or, with respect to Postponed Notes, a prospective purchaser of)
such Equipment Note or a Controlling Party and (c) how to vote (or direct the
Subordination Agent to vote) any Equipment Note (or, with respect to a
Postponed Note, its commitment to acquire such Postponed Note) if a vote has
been called for with respect thereto. Provided such a request for
Certificateholder Direction shall have been made, in directing any action or
casting any vote or giving any consent as the holder of any Equipment Note (or
in directing the Subordination Agent in any of the foregoing), (i) other than
as Controlling Party, the Trustee shall vote for or give consent to any such
action with respect to such Equipment Note (or Postponed Note) in the same
proportion as that of (A) the aggregate face amounts of all Certificates
actually voted in favor of or for giving consent to such action by such
Direction of Certificateholders to (B) the aggregate face amount of all
Outstanding Certificates and (ii) as Controlling Party, the Trustee shall vote
as directed in such Certificateholder Direction by the Certificateholders of
such series evidencing a Fractional Undivided Interest aggregating not less
than a majority in interest in the Trust. For purposes of the immediately
preceding sentence, a Certificate shall have been
53
60
"actually voted" if the Holder of such Certificate has delivered to the Trustee
an instrument evidencing such Holder's consent to such Direction prior to one
Business Day before the Trustee directs such action or casts such vote or gives
such consent. Notwithstanding the foregoing, but subject to Section 6.04 and
any Intercreditor Agreement, the Trustee may, with respect to the Certificates
of any series, in its own discretion and at its own direction, consent and
notify the relevant Loan Trustee of such consent (or direct the Subordination
Agent to consent and notify the Loan Trustee of such consent) to any amendment,
modification, waiver or supplement under any related Indenture or any other
related Note Document if an Event of Default hereunder shall have occurred and
be continuing or if such amendment, modification, waiver or supplement will not
materially adversely affect the interests of the Certificateholders of such
series.
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01. Termination of the Xxxxxx.Xx respect of each Trust
created by the Basic Agreement as supplemented by a related Trust Supplement,
the respective obligations and responsibilities of the Company and the Trustee
with respect to such Trust shall terminate upon the distribution to all Holders
of Certificates of the series of such Trust and the Trustee of all amounts
required to be distributed to them pursuant to this Agreement and the
disposition of all property held as part of the Trust Property of such Trust;
provided, however, that in no event shall such Trust continue beyond the final
expiration date determined as provided in such Trust Supplement.
Notice of any termination of a Trust, specifying the applicable
Regular Distribution Date (or applicable Special Distribution Date, as the case
may be) upon which the Certificateholders of any series may surrender their
Certificates to the Trustee for payment of the final distribution and
cancellation, shall be mailed promptly by the Trustee to Certificateholders of
such series not earlier than 60 days and not later than 15 days preceding such
final distribution specifying (i) the Regular Distribution Date (or Special
Distribution Date, as the case may be) upon which the proposed final payment of
the Certificates of such series will be made upon presentation and surrender of
Certificates of such series at the office or agency of the Trustee therein
specified, (ii) the amount of any such proposed final payment, and (iii) that
the Record Date otherwise applicable to such Regular Distribution Date (or
Special Distribution Date, as the case may be) is not applicable, payments
being made only upon presentation and surrender of the Certificates of such
series at the office or agency of the Trustee therein specified. The Trustee
shall give such notice to the Registrar at the time such notice is given to
Certificateholders of such series. Upon presentation and surrender of the
Certificates of such series in accordance with such notice, the Trustee shall
cause to be distributed to Certificateholders of such series amounts
distributable on such Regular Distribution Date (or Special Distribution Date,
as the case may be) pursuant to Section 4.02.
54
61
In the event that all of the Certificateholders of such series shall
not surrender their Certificates for cancellation within six months after the
date specified in the above-mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders of such series to
surrender their Certificates for cancellation and receive the final
distribution with respect thereto. No additional interest shall accrue on the
Certificates of such series after any Regular Distribution Date (or Special
Distribution Date, as the case may be) of such series, as specified in the
first written notice. In the event that any money held by the Trustee for the
payment of distributions on the Certificates of such series shall remain
unclaimed for two years (or such lesser or greater time as the Trustee shall be
satisfied, after 60 days' notice from the Company, is one month prior to the
escheat period provided under applicable law) after the final distribution date
with respect thereto, the Trustee shall pay to each Loan Trustee the
appropriate amount of money relating to such Loan Trustee and shall give
written notice thereof to any related Owner Trustees and the Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders. (a) The
insolvency, death or incapacity of any Certificateholder of any series shall
not operate to terminate this Agreement or the related Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them. No Certificateholder of any
series shall be entitled to revoke the related Trust.
(b) No transfer, by operation of law or otherwise, of any Certificate
or other right, title and interest of any Certificateholder in and to the
applicable Trust Property or under the related Trust shall operate to terminate
the Trust or entitle such Certificateholder or any successor or transferee of
such Certificateholder to an accounting or to the transfer to it of legal title
to any part of such Trust Property.
Section 12.02. Certificates Nonassessable and Fully Paid.
Certificateholders of each series shall not be personally liable for
obligations of the related Trust, the Fractional Undivided Interests
represented by the Certificates of such series shall be nonassessable for any
losses or expenses of such Trust or for any reason whatsoever, and Certificates
of such series upon authentication thereof by the Trustee pursuant to Section
3.02 are and shall be deemed fully paid. No Certificateholder of such series
shall have any right (except as expressly provided herein) to vote or in any
manner otherwise control the operation and management of the related Trust
Property, the related Trust, or the obligations of the parties hereto, nor
shall anything set forth herein, or contained in the terms of the Certificates
of such series, be construed so as to constitute the Certificateholders of such
series from time to time as partners or members of an association.
55
62
Section 12.03. Registration of Equipment Notes in Name of
Subordination Agent. If a Trust is party to an Intercreditor Agreement, the
Trustee agrees that all Equipment Notes to be purchased by such Trust may be
issued in the name of the Subordination Agent under such Intercreditor
Agreement or its nominee and held by such Subordination Agent in trust for the
benefit of the Certificateholders, or, if not so held, such Subordination Agent
or its nominee shall be reflected as the owner of such Equipment Notes in the
register of the issuer of such Equipment Notes.
Section 12.04. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof or in the applicable Trust Supplement with
respect to any Trust created thereby, all notices required or permitted under
the terms and provisions of this Basic Agreement or such Trust Supplement shall
be in English and in writing, and any such notice may be given by U.S. mail,
courier service, telegram, cable or facsimile (confirmed by telephone or in
writing in the case of notice by telegram, cable or facsimile) or any other
customary means of communication, and any such notice shall be effective when
delivered (or, if mailed, three Business Days after deposit, postage prepaid,
in the first class U.S. mail),
if to the Company, to:
American Airlines, Inc.
0000 Xxxx Xxxxxx Xxxx.
Maildrop 5662
Xxxx Xxxxx, Xxxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to the Trustee, to:
x/x Xxxxx Xxxxxx Xxxx and Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Trust Division
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) The Company or the Trustee, by notice to the other, may designate
additional or different addresses for subsequent notices or communications.
56
63
(c) Any notice or communication to Certificateholders of any series
shall be mailed by first-class mail to the addresses for Certificateholders of
such series shown on the Register kept by the Registrar and to addresses filed
with the Trustee for Certificate Owners of such series. Failure so to mail a
notice or communication or any defect in such notice or communication shall not
affect its sufficiency with respect to other Certificateholders or Certificate
Owners of such series.
(d) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is conclusively presumed to have been duly
given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to the
Certificateholders of such series, it shall mail a copy to the Trustee and to
each Paying Agent for such series at the same time.
(f) The Trustee shall promptly furnish the Company with a copy of any
demand, notice or written communication received by the Trustee hereunder from
any Certificateholder, Certificate Owner, Owner Trustee, Loan Trustee,
Liquidity Provider or Subordination Agent.
Section 12.05. Governing Law. THIS BASIC AGREEMENT HAS BEEN DELIVERED
IN THE STATE OF NEW YORK AND THIS BASIC AGREEMENT, TOGETHER WITH ALL TRUST
SUPPLEMENTS AND CERTIFICATES, SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.06. Severability of Provisions. 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 related
Trust, or of the Certificates of such series or the rights of the
Certificateholders thereof.
Section 12.07. Trust Indenture Act Controls. This Agreement is subject
to the provisions of the Trust Indenture Act and if any provision of this
Agreement limits, qualifies or conflicts with another provision which is
required to be included in this Agreement by the Trust Indenture Act, the
required provision shall control. If any provision of this Agreement modifies
or excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Agreement as so
modified, or to be excluded, as the case may be, whether or not such provision
of this Agreement refers expressly to such provision of the Trust Indenture
Act.
57
64
Section 12.08. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 12.09. Successors and Assigns. All covenants, agreements,
representations and warranties in this Agreement by the Trustee and the Company
shall bind and, to the extent permitted hereby, shall inure to the benefit of
and be enforceable by their respective successors and assigns, whether so
expressed or not. Any request, notice, direction, consent, waiver or other
instrument or action by any Certificateholder shall bind the successors and
assigns of such Certificateholder.
Section 12.10. Benefits of Agreement. Nothing in this Agreement or in
the Certificates of any series, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the
Certificateholders of each series, any benefit or any legal or equitable right,
remedy or claim under this Agreement, except as provided expressly herein.
Section 12.11. Legal Holidays. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate of
any series shall not be a Business Day with respect to such series, then
(notwithstanding any other provision of this Agreement) payment need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on such Regular Distribution Date or Special
Distribution Date, and no interest shall accrue during the intervening period.
Section 12.12. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 12.13. Communication by Certificateholders with Other
Certificateholders. Certificateholders of any series may communicate with other
Certificateholders of such series with respect to their rights under this Basic
Agreement, the related Trust Supplement or the Certificates of such series
pursuant to Section 312(b) of the Trust Indenture Act. The Company, the Trustee
and any and all other persons benefitted by this Agreement shall have the
protection afforded by Section 312(c) of the Trust Indenture Act.
Section 12.14. Normal Commercial Relations. Anything contained in this
Agreement to the contrary notwithstanding, the Trustee and any
Certificateholder, or any bank or other affiliate of any such party, may
conduct any banking or other financial transactions, and have banking or other
commercial relationships, with the Company fully to the same extent as if this
Agreement were not in effect, including without limitation the making of loans
or other extensions of credit to the Company for any purpose whatsoever,
whether related to any of the transactions contemplated hereby or otherwise.
58
65
Section 12.15. No Recourse Against Others. No past, present or future
director, officer, employee, agent, member, manager, trustee or stockholder, as
such, of the Company or any successor Person shall have any liability for any
obligations of the Company or any successor Person, either directly or through
the Company or any successor Person, under the Certificates or this Agreement
or for any claim based on, in respect of or by reason of such obligations or
their creation, whether by virtue of any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise. By accepting a Certificate, each Certificateholder
agrees to the provisions of this Section 12.15 and waives and releases all such
liability. Such waiver and release shall be part of the consideration for the
issue of the Certificates.
59
66
IN WITNESS WHEREOF, the parties have caused this Pass Through Trust
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first written above.
AMERICAN AIRLINES, INC.
By:
--------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------
Name:
Title:
60
67
EXHIBIT A
TO
PASS THROUGH TRUST AGREEMENT
FORM OF CERTIFICATE
*Unless this Certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange or payment, and any
Certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
AMERICAN AIRLINES, INC. PASS THROUGH TRUST [ ]
PASS THROUGH CERTIFICATE, SERIES [ ]
Final Regular Distribution Date: [ ],
evidencing a fractional undivided interest in a trust, the
property of which includes or will include, among other
things, certain Equipment Notes each secured by Aircraft
owned by or leased to American Airlines, Inc.
Certificate No.[ ] $[ ] Fractional Undivided Interest representing 0.____%
of the Trust per $1,000 face amount
THIS CERTIFIES THAT [ ], for value received, is the registered owner
of a $[ ] ([ ] dollars) Fractional Undivided Interest in the American Airlines
Pass Through Trust, Series [ ] (the "Trust") created by ______________________,
as trustee (the "Trustee"), pursuant to a Pass Through Trust Agreement dated as
of ____________, 1999 (the "Basic Agreement"), as supplemented by Trust
Supplement No. [ ] thereto dated [ ], [ ](collectively, the "Agreement"),
---------
*This legend to appear on Book-Entry Certificates to be deposited with The
Depository Trust Company.
A-1
68
between the Trustee and American Airlines, Inc., a corporation incorporated
under Delaware 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 "[ ]% American Airlines Pass Through Certificate, Series [ ]"
(herein called the "Certificates"). This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement. By virtue of
its acceptance hereof, the Certificateholder of this Certificate assents to and
agrees to be bound by the provisions of the Agreement and any related
Intercreditor Agreement. The property of the Trust includes or will include
certain Equipment Notes and all rights of the Trust and the Trustee, on behalf
of the Trust, to receive any payments under any Intercreditor Agreement or
Liquidity Facility (the "Trust Property"). Each issue of the Equipment Notes is
or will be secured by, among other things, a security interest in Aircraft
leased to or owned by the Company.
The Certificates represent fractional undivided interests in the Trust
and the Trust Property, and, except as may be specified in any Intercreditor
Agreement or in the applicable Trust Supplement, will have no rights, benefits
or interest in respect of any other separate trust established pursuant to the
terms of the Basic Agreement for any other series of certificates issued
pursuant thereto.
Subject to and in accordance with the terms of the Agreement and any
related Intercreditor Agreement, from funds then available to the Trustee,
there will be distributed on each ____________ and _______________ (a "Regular
Distribution Date"), commencing on ___________, ____, to the Person in whose
name this Certificate is registered at the close of business on the 15th day
preceding the Regular Distribution Date or such other date as shall be
specified for such series in the applicable Trust Supplement, 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 any related
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 or such other date as
shall be specified for such series in the applicable Trust Supplement, 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
A-2
69
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 Company, the Trustee, the Loan
Trustee, any Owner Trustee or any Owner Participant 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 Company and the Trustee with the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust. Any such consent by the
Certificateholder of this Certificate shall be conclusive and binding on such
Certificateholder and upon all future Certificateholders of this Certificate
and of any Certificate issued upon the transfer hereof or in exchange hereof or
in lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Certificateholders of any of
the Certificates. As provided in the Agreement and subject to certain
limitations set forth, the transfer of this Certificate is registrable in the
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in its capacity as Registrar, or
by any successor Registrar duly endorsed or accompanied by a written instrument
of transfer in form satisfactory to the Trustee and the Registrar, duly
executed by the Certificateholder hereof or such Certificateholder's attorney
duly authorized in writing, and thereupon one or more new Certificates of
authorized denominations evidencing the same aggregate Fractional Undivided
Interest in the Trust will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates without
coupons in minimum denominations of $1,000 Fractional Undivided Interest and
integral multiples thereof except that one Certificate may be issued in a
different denomination. As provided in the Agreement and subject
70
to certain limitations therein set forth, the Certificates are exchangeable for
new Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee shall require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
The Company, 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 none of the Company, the
Trustee, the Registrar or any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant
to the Agreement and the disposition of all property held as part of the Trust
Property.
THIS CERTIFICATE AND THE AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES AND CERTIFICATEHOLDERS HEREUNDER AND THEREUNDER 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.
A-4
71
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
AMERICAN AIRLINES, INC. PASS THROUGH TRUST SERIES _______
By:
----------------------------
as Trustee
By:
----------------------------
Title:
--------------------------
Dated:
--------------------------
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred to in the within-mentioned
Agreement.
--------------------------------,
as Trustee
By:
-----------------------------
Authorized Officer
A-5
