1
Exhibit 4.6
AMERICA WEST AIRLINES, INC.
and
FLEET NATIONAL BANK,
as Trustee
PASS THROUGH TRUST AGREEMENT
Dated as of November __, 1996
2
Reconciliation and tie between Pass Through Trust Agreement dated as of
November __, 1996 and the Trust Indenture Act of 1939. This reconciliation
does not constitute part of the Pass Through Trust Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
------------------- ------------------
310(a)(1) 7.07
(a)(2) 7.07
312(a) 3.09; 8.01; 8.02
313(a) 7.06; 8.03
314(a) 8.04(a) - (c)
(a)(4) 8.04(d)
(c)(1) 1.02
(c)(2) 1.02
(d)(1) 7.12; 11.01
(d)(2) 7.12; 11.01
(d)(3) 2.01
(e) 1.02
315(b) 7.01
316(a)(last sentence) 1.04(d)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(d)
317(a)(1) 6.03
(b) 7.12
318(a) 12.08
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS ................................................... 2
Section 1.01. Definitions ................................ 2
Section 1.02. Compliance Certificates and Opinions ....... 12
Section 1.03. Form of Documents Delivered to Trustee ..... 13
Section 1.04. Acts of Certificateholders ................. 13
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES; ACQUISITION OF EQUIPMENT
NOTES .................................................... 16
Section 2.01. Amount Unlimited; Issuable in Series ....... 16
Section 2.02. Acquisition of Equipment Notes ............. 18
Section 2.03. Acceptance by Trustee ...................... 20
Section 2.04. Limitation of Powers ....................... 20
ARTICLE III
THE CERTIFICATES ............................................... 20
Section 3.01. Form, Denomination and Execution of
Certificates ............................. 20
Section 3.02. Authentication of Certificates ............. 21
Section 3.03. Temporary Certificates ..................... 21
Section 3.04. Registration of Transfer and Exchange of
Certificates ............................. 22
Section 3.05. Mutilated, Destroyed, Lost or Stolen
Certificates ............................. 23
Section 3.06. Persons Deemed Owners ...................... 23
Section 3.07. Cancellation ............................... 24
Section 3.08. Limitation of Liability for Payments ....... 24
Section 3.09. Book-Entry and Definitive Certificates ..... 24
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS ................ 26
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 ............ 28
Section 4.04. Investment of Special Payment Moneys ........ 29
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ARTICLE V
THE COMPANY ............................................................. 29
Section 5.01. Maintenance of Corporate Existence ..................... 29
Section 5.02. Consolidation, Merger, Etc ............................. 30
ARTICLE VI
DEFAULT ................................................................. 31
Section 6.01. Events of Default ...................................... 31
Section 6.02. Incidents of Sale of Equipment Notes ................... 32
Section 6.03. Judicial Proceedings Instituted by
Trustee; Trustee May Bring Suit ...................... 33
Section 6.04. Control by Certificateholders .......................... 33
Section 6.05. Waiver of Past Defaults ................................ 34
Section 6.06. Right of Certificateholders to Receive
Payments Not To Be Impaired .......................... 34
Section 6.07. Certificateholders May Not Bring Suit
Except Under Certain Conditions ...................... 35
Section 6.08. Remedies Cumulative .................................... 35
Section 6.09. Undertaking for Costs .................................. 36
ARTICLE VII
THE TRUSTEE ............................................................. 36
Section 7.01. Notice of Defaults ..................................... 36
Section 7.02. Certain Rights of Trustee .............................. 36
Section 7.03. Not Responsible for Recitals or Issuance
of Certificates ...................................... 38
Section 7.04. May Hold Certificates .................................. 38
Section 7.05. Money Held in Trust .................................... 38
Section 7.06. Compensation and Reimbursement ......................... 38
Section 7.07. Corporate Trustee Required; Eligibility ................ 40
Section 7.08. Resignation and Removal; Appointment of Successor ...... 40
Section 7.09. Acceptance of Appointment by Successor ................. 42
Section 7.10. Merger, Conversion, Consolidation or
Succession to Business ............................... 43
Section 7.11. Maintenance of Agencies ................................ 43
Section 7.12. Money for Certificate Payments to Be Held in Trust ..... 45
Section 7.13. Registration of Equipment Notes in Trustee's Name ...... 45
Section 7.14. Representations and Warranties of Trustee .............. 45
Section 7.15. Withholding Taxes; Information Reporting ............... 46
Section 7.16. Trustee's Liens ........................................ 47
Section 7.17. Preferential Collection of Claims ...................... 47
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ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE ................ 47
Section 8.01. The Company to Furnish Trustee with
Names and Addresses of
Certificateholders ......................... 47
Section 8.02. Preservation of Information;
Communications to Certificateholders ....... 47
Section 8.03. Reports by Trustee ........................... 48
Section 8.04. Reports by the Company ....................... 48
ARTICLE IX
SUPPLEMENTAL AGREEMENTS .......................................... 49
Section 9.01. Supplemental Agreements Without Consent
of Certificateholders ...................... 49
Section 9.02. Supplemental Agreements with Consent of
Certificateholders ......................... 50
Section 9.03. Documents Affecting Immunity or
Indemnity .................................. 51
Section 9.04. Execution of Supplemental Agreements ......... 51
Section 9.05. Effect of Supplemental Agreements ............ 52
Section 9.06. Conformity with Trust Indenture Act .......... 52
Section 9.07. Reference in Certificates to
Supplemental Agreements .................... 52
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS ....................... 52
Section 10.01. Amendments and Supplements to Indenture
and Other Note Documents .................. 52
ARTICLE XI
TERMINATION OF TRUSTS ............................................ 53
Section 11.01. Termination of the Trusts ................... 53
ARTICLE XII
MISCELLANEOUS PROVISIONS ......................................... 54
Section 12.01. Limitation on Rights of
Certificateholders ........................ 54
Section 12.02. Liabilities of Certificateholders ........... 54
Section 12.03. Certificates Nonassessable and Fully
Paid ...................................... 54
Section 12.04. Registration of Equipment Notes in Name
of Subordination Agent .................... 55
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Section 12.05. Notices ....................................... 55
Section 12.06. Governing Law ................................. 56
Section 12.07. Severability of Provisions .................... 56
Section 12.08. Trust Indenture Act Controls .................. 56
Section 12.09. Effect of Headings and Table of
Contents .................................... 56
Section 12.10. Successors and Assigns ........................ 57
Section 12.11. Benefits of Agreement ......................... 57
Section 12.12. Legal Holidays ................................ 57
Section 12.13. Counterparts .................................. 57
Section 12.14. Communication by Certificateholders
with Other Certificateholders ............... 57
Section 12.15. Intention of Parties........................... 57
Exhibit A - Form of Certificate
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This PASS THROUGH TRUST AGREEMENT, dated as of November __, 1996, between
America West Airlines, Inc., a Delaware corporation (the "Company"), and Fleet
National Bank, a national banking association, as Trustee, is made with respect
to the formation from time to time of separate America West 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;
WHEREAS, from time to time, pursuant to the terms and conditions of this
Agreement with respect to each separate Trust formed hereunder, the Trustee on
behalf of such Trust shall purchase one or more issues of Equipment Notes
having the same interest rate as, and final maturity dates not later than the
final Regular Distribution Date of, the series of Certificates issued in
respect of such Trust and shall hold such Equipment Notes in trust for the
benefit of the Certificateholders of such Trust;
WHEREAS, to facilitate the sale of Equipment Notes to, and the purchase of
Equipment Notes by, the Trustee on behalf of each Trust created from time to
time pursuant to this Agreement, the Company as the "issuer", as such term is
defined in and solely for purposes of the Securities Act of 1933, as amended
(the "Securities Act"), 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, has duly authorized the
execution and delivery of this Basic Agreement and each Trust Supplement with
respect to all such Certificates and is undertaking to perform certain
administrative and ministerial duties hereunder and is also undertaking to pay
the fees and expenses of the Trustee;
WHEREAS, this Basic Agreement, as supplemented from time to time, is
subject to the provisions of the Trust Indenture Act of 1939, as amended, and
shall to the extent applicable, be governed by such provisions;
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NOW THEREFORE, in consideration of the mutual agreements herein contained,
and of other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Basic Agreement,
except as otherwise expressly provided herein or in a Trust Supplement or
unless the context otherwise requires:
(1) the terms used herein that are defined in this Article have the
meanings assigned to them in this Article, and include the plural as well
as the singular,
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all references in this Basic Agreement to designated "Articles",
"Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this Basic Agreement;
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Basic Agreement as a whole and not to any
particular Article, Section or other subdivision;
(5) the term "this Agreement" (as distinguished from "this Basic
Agreement") refers, unless the context otherwise requires, to this Basic
Agreement as supplemented by the Trust Supplement creating a particular
Trust and establishing the series of Certificates issued or to be issued
in respect thereof, with reference to such Trust and such series of
Certificates, as this Basic Agreement as so supplemented may be further
supplemented with respect to such Trust and such series of Certificates;
and
(6) all references in this Agreement to a "series" of Certificates
shall be construed to mean a series of Certificates issued under the
related Trust Supplement; and all references in this Basic Agreement or
in any Trust Supplement, Intercreditor Agreement, Liquidity Facility,
Refunding Agreement, or Note Document to a "class" of Certificates shall
be construed to refer to any series of Certificates that have been or
will be issued concurrently with, or are intended to be considered
concurrently with, one or more other series of Certificates, each
established under separate Trust Supplements to purchase related classes
of Equipment Notes issued by one or more Owner Trustees that are subject
to the same Intercreditor Agreement.
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Act: With respect to any Certificateholder, has the meaning specified in
Section 1.04.
Affiliate: With respect to any specified Person, means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
Aircraft: Means one or more aircraft, including engines therefor, owned
by or leased to the Company and securing one or more Equipment Notes.
Authorized Agent: With respect to the Certificates of any series, means
any Paying Agent or Registrar for the Certificates of such series.
Avoidable Tax: Has the meaning specified in Section 7.08(e).
Basic Agreement: Means this Pass Through Trust Agreement, as the same may
from time to time be supplemented, amended or modified, but does not include
any Trust Supplement.
Book-Entry Certificates: With respect to the Certificates of any series,
means a beneficial interest in the Certificates of such series, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 3.09.
Business Day: With respect to the Certificates of any series and unless
specified otherwise in any Trust Supplement, means 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 or Hartford, Connecticut.
Certificate: Means any one of the Certificates, substantially in the form
of Exhibit A hereto, and any such Certificates issued in exchange therefor or
replacement thereof pursuant to this Agreement.
Certificate Account: With respect to the Certificates of any series,
means the account or accounts created and maintained for such series pursuant
to Section 4.01(a) and the related Trust Supplement.
Certificateholder or Holder: With respect to the Certificates of any
series, means the Person in whose name a Certificate of such series is
registered in the Register for Certificates of such series.
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Certificate Owner: With respect to the Certificates of any series, means,
for purposes of Section 3.09, the Person who owns a Book-Entry Certificate of
such series.
Clearing Agency: Means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended.
Clearing Agency Participant: Means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects, directly or indirectly, book-entry transfers and pledges of
securities deposited with the Clearing Agency.
Company: Means America West Airlines, Inc., a Delaware corporation, or
its successor in interest pursuant to Section 5.02, or any other obligor
(within the meaning of the Trust Indenture Act) with respect to any series of
Certificates.
Controlling Party: Means the Person entitled to act as such pursuant to
the terms of any Intercreditor Agreement.
Corporate Trust Office: With respect to the Trustee, the Subordination
Agent or any Indenture Trustee, means the office of such trustee in the city at
which at any particular time its corporate trust business shall be principally
administered.
Cut-off Date: With respect to the Certificates of any series, means the
date designated as such in the Trust Supplement establishing such series.
Definitive Certificates: With respect to the Certificate of any series,
has the meaning specified in Section 3.09.
Direction: Has the meaning specified in Section 1.04(c).
Distribution Date: Means any Regular Distribution Date or Special
Distribution Date as the context requires.
Equipment: Means the Aircraft and Spare Engines, collectively.
Equipment Note: With respect to the Certificates of any series, means the
equipment notes or other promissory notes, loan certificates or other evidence
of obligation issued under the related Indenture.
ERISA: Means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor federal statute.
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Escrow Account: With respect to the Certificates of any series, has the
meaning specified in Section 2.02(b).
Escrowed Funds: With respect to any Trust, has the meaning specified in
Section 2.02(b).
Event of Default: Means, in respect of any Trust, the occurrence of an
Indenture Default under any Indenture pursuant to which Equipment Notes held by
such Trust were issued.
Final Legal Distribution Date: With respect to the Certificates of any
series, means the date designated as such in the Trust Supplement establishing
such series.
Fractional Undivided Interest: Means the fractional undivided interest in
a Trust that is evidenced by a Certificate relating to such Trust.
Indenture: With respect to any Trust, means each of the one or more
separate trust indentures and security agreements, loan agreements and
mortgages and/or other agreements relating to indebtedness and security
interests with respect thereto described in, or on a schedule attached to, this
Agreement which relates to an issue of Equipment Notes to be held in such Trust
and an indenture, loan agreement and mortgage or other agreement having
substantially the same terms and conditions as such trust indenture and
security agreement, loan agreement and mortgage or other agreement relating to
indebtedness and security interests with respect thereto and which relates to
Substitute Equipment; as each such agreement may be amended or supplemented in
accordance with its respective terms; and Indentures means all of such
agreements.
Indenture Default: With respect to any Indenture, means any Indenture
Event of Default (as such term is defined in such Indenture).
Indenture Trustee: With respect to any Equipment Note or the Indenture
applicable thereto, means the bank or trust company designated as loan or
indenture trustee under such Indenture; and any successor to such Indenture
Trustee as such trustee; and Indenture Trustees means all of the Indenture
Trustees under the Indentures.
Initial Regular Distribution Date: With respect to the Certificates of
any series, means the first Regular Distribution Date on which a Scheduled
Payment is to be made.
Intercreditor Agreement: Means any agreement by and among one or more
Trusts, one or more Liquidity Providers and a Subordination Agent providing for
the distribution of payments made in respect of Equipment Notes held by such
Trusts.
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Issuance Date: With respect to the Certificates of any series, means the
date of the issuance of such Certificates.
Lease: Means any lease between an Owner Trustee, as the lessor, and the
Company, as the lessee, referred to in the related Indenture, as each such
lease may be amended or supplemented in accordance with its respective terms;
and Leases means all such Leases.
Liquidity Facility: With respect to the Certificates of any Series, means
any revolving credit agreement or similar facility relating to the Certificates
of such series between a Liquidity Provider and a Subordination Agent, as
amended, replaced, supplemented or otherwise modified from time to time in
accordance with its terms and the terms of any Intercreditor Agreement.
Liquidity Provider: With respect to the Certificates of any Series, means
a bank or other financial institution that agrees to provide a Liquidity
Facility for the benefit of the holders of Certificates of such series.
Note Documents: With respect to any Equipment Note, means the related
Indenture, Refunding Agreement, guarantees of such Equipment Note, if any and
if the related Equipment is leased to the Company, the related Lease and the
related Owner Trustee's Purchase Agreement.
Officer's Certificate: Means a certificate signed, (a) in the case of the
Company, by (i) the Chairman or Vice Chairman of the Board of Directors, the
President or any Executive Vice President or Senior Vice President of the
Company, signing alone or (ii) any Vice President of the Company signing
together with the Secretary, the Assistant Secretary, the Treasurer or any
Assistant Treasurer of the Company, or (b) in the case of the Trustee or an
Owner Trustee or an Indenture Trustee, a Responsible Officer of the Trustee or
such Owner Trustee or such Indenture 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 in rank of
the officers of the Company a principal duty of which is furnishing advice as
to legal matters, (ii) Xxxxxxx & Xxxxx L.L.P., (iii) Xxxxxx & Xxxxxxx, or (iv)
such other counsel designated by the Company and reasonably acceptable to the
Trustee and (b) in the case of any Owner Trustee or any Indenture Trustee, may
be such counsel as may be designated by any of them whether or not such counsel
is an employee of any of them, and who shall be reasonably acceptable to the
Trustee.
Other Agreements: Has the meaning specified in Section 6.01(b).
Outstanding: With respect to Certificates of any series, means, as of the
date of determination, all Certificates
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of such series theretofore authenticated and delivered under this Agreement,
except
(i) Certificates of such series theretofore canceled by the
Registrar or delivered to the Trustee or the Registrar for cancellation;
(ii) All of the Certificates of such series if money in the full
amount required to make the final distribution with respect to such
series pursuant to Section 11.01 hereof has been theretofore deposited
with the Trustee in trust for the Holders of the Certificates of such
series as provided in Section 4.01 pending distribution of such money to
such Certificateholders pursuant to such final distribution payment; and
(iii) Certificates of such series in exchange for or in lieu of
which other Certificates of such series have been authenticated and
delivered pursuant to this Agreement.
Owner Participant: With respect to any Equipment Note, means the "Owner
Participant", if any, as referred to in the Indenture pursuant to which such
Equipment Note is issued and any permitted successor or assign of such Owner
Participant; and Owner Participants at any time of determination means all of
the Owner Participants thus referred to in the Indentures.
Owner Trustee: With respect to any Equipment Note, means the "Owner
Trustee", if any, as referred to in the Indenture pursuant to which such
Equipment Note is issued, not in its individual capacity but solely as trustee;
and Owner Trustees means all of the Owner Trustees party to any of the
respective Indentures.
Owner Trustee's Purchase Agreement: With respect to the Certificates of
any series, if the related Equipment is leased to the Company, has the meaning
specified for the term Purchase Agreement in the related Lease.
Paying Agent: With respect to the Certificates of any series, means the
paying agent maintained and appointed for the Certificates of such series
pursuant to Section 7.11.
Permitted Investments: Means obligations of the United States of America
or agencies or instrumentalities thereof for the payment of which the full
faith and credit of the United States of America is pledged, maturing in not
more than 60 days or such lesser time as is necessary for payment of any
Special Payments on a Special Distribution Date.
Person: Means any person, including any individual corporation,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
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Pool Balance: Means, with respect to the Certificates of any series, as
of any date, (i) the original aggregate face amount of the Certificates of such
series less (ii) the aggregate amount of all payments made in respect of such
Certificates other than payments made in respect of interest or premium thereon
or reimbursement of any costs or expenses incurred in connection therewith.
The Pool Balance of any series of Certificates as of any Distribution Date
shall be computed after giving effect to the payment of principal, if any, on
the Equipment Notes or other Trust Property held in the related Trust and the
distribution thereof to be made on such Distribution Date.
Pool Factor: Means, with respect to any series of Certificates as of any
date, the quotient (rounded to the seventh decimal place) computed by dividing
(i) the Pool Balance of such series as at such date by (ii) the original
aggregate face amount of the Certificates of such series. The Pool Factor as
of any Distribution Date shall be computed after giving effect to the payment
of principal, if any, on the Equipment Notes or other Trust Property and the
distribution thereof to be made on such Distribution Date.
Postponed Notes: With respect to any Trust or the related series of
Certificates, means the Equipment Notes to be held in such Trust as to which a
Postponement Notice shall have been delivered pursuant to Section 2.02(b).
Postponement Notice: With respect to any Trust or the related series of
Certificates, means an Officer's Certificate of the Company signed by an
officer of the Company (1) requesting that the Trustee temporarily postpone
purchase of the related Equipment Notes to a date later than the Issuance Date
of such series of Certificates, (2) identifying the amount of the purchase
price of each such Equipment Note and the aggregate purchase price for all such
Equipment Notes, (3) setting forth the reasons for such postponement and (4)
with respect to each such Equipment Note, either (a) setting or resetting a new
Transfer Date (which shall be on or prior to the applicable Cut-off Date) for
payment by the Trustee of such purchase price and issuance of the related
Equipment Note, or (b) indicating that such new Transfer Date (which shall be
on or prior to the applicable Cut-off Date) will be set by subsequent written
notice not less than one Business Day prior to such new Transfer Date.
PTC Event of Default: With respect to the Certificates of any series,
means any failure to pay within 10 Business Days of the due date thereof: (i)
the outstanding Pool Balance on the Final Legal Distribution Date for such
series specified in the related Trust Supplement or (ii) interest due on such
Certificates on any Distribution Date.
Record Date: With respect to any Trust or the related series of
Certificates, means (i) for Scheduled Payments to be distributed on any Regular
Distribution Date, other than the final distribution, with respect to such
series, the 15th day
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(whether or not a Business Day) preceding such Regular Distribution Date, and
(ii) for Special Payments to be distributed on any Special Distribution Date,
other than the final distribution, with respect to such series, the 15th day
(whether or not a Business Day) preceding such Special Distribution Date.
Refunding Agreement: With respect to the Certificates of any series,
means any note purchase, refunding, participation or similar agreement
providing for, among other things, the purchase of Equipment Notes by the
Trustee on behalf of the relevant Trust, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms; and Refunding Agreements means all such agreements.
Register and Registrar: With respect to the Certificates of any series,
mean the register maintained and the registrar appointed for such series
pursuant to Sections 3.04 and 7.11.
Regular Distribution Date: With respect to distributions of Scheduled
Payments in respect of any series of Certificates, means each date designated
as such in this Agreement, until payment of all the Scheduled Payments to be
made under the Equipment Notes held in such Trust has been made.
Request: Means a request by the Company setting forth the subject matter
of the request accompanied by an Officer's Certificate and an Opinion of
Counsel as provided in Section 1.02 of this Basic Agreement.
Responsible Officer: With respect to any Trustee, any Indenture Trustee
and any Owner Trustee, means any officer in the corporate trust division or
department of the Trustee, Indenture Trustee or Owner Trustee or any other
officer customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with a particular subject.
Scheduled Payment: With respect to any Equipment Note, means any payment
of principal and interest on such Equipment Note or any payment of interest on
the Certificates of any series with funds drawn under the Liquidity Facility
for such series (other than any such payment which is not in fact received by
the Trustee or any Subordination Agent within five days of the date on which
such payment is scheduled to be made) due from the obligor thereon which
payment represents the installment of principal at the stated maturity of such
installment of principal on such Equipment Note, the payment of regularly
scheduled interest accrued on the unpaid principal amount of such Equipment
Note, or both; provided that any payment of principal, premium, if any, or
interest resulting from the redemption or purchase of any Equipment Note shall
not constitute a Scheduled Payment.
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SEC: Means the Securities and Exchange Commission, as from time to time
constituted or created under the Securities Exchange Act of 1934, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
Spare Engine: Means one or more spare engines, owned by or leased to the
Company and securing one or more Equipment Notes.
Special Distribution Date: With respect to the Certificates of any
series, means the date specified as such in the related Trust Supplement.
Special Payment: Means (i) any payment (other than a Scheduled Payment)
in respect of, or any proceeds of, any Equipment Note or Trust Indenture Estate
(as defined in each Indenture) or (ii) the amounts required to be distributed
pursuant to the last paragraph of Section 2.02(b) or (iii) the amounts required
to be distributed pursuant to the penultimate paragraph of Section 2.02(b).
Special Payments Account: With respect to the Certificates of any series,
means the account or accounts created and maintained for such series pursuant
to Section 4.01(b) and the related Trust Supplement.
Specified Investments: With respect to any Trust, means, unless otherwise
specified in the related Trust Supplement, (i) direct obligations of the United
States or any agency thereof the obligations of which bear the full faith and
credit of the United States, (ii) obligations fully guaranteed by the United
States, or (iii) certificates of deposit issued by any commercial bank
incorporated under the laws of the United States or one of the States thereof
(but not exceeding $10,000,000 in principal amount or deposits at any given
time for any one bank) having a combined capital surplus and undivided income
of at least $750,000,000; (iv) repurchase agreements (but not exceeding
$10,000,000 in principal amount or deposits at any given time for any one bank)
with any financial institution having combined capital surplus and undivided
income of at least $750,000,000 and fully collateralized by an obligation of
the type described in clauses (i) through (iii) as collateral pursuant to which
an entity referred to in clause (iii) above or another financial institution
having a net worth of at least $750,000,000 and having a rating of "B" or
better from Thomson BankWatch, Inc. is obligated to repurchase any such
obligation not later than ninety (90) days after the purchase of any such
obligation and (v) money market funds which invest solely in obligations
described in clause (i) or (ii); 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
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or date of return of such investment is on or before the Special Distribution
Date next following the Cut-off Date, if any, for such Trust by more than 20
days.
Subordination Agent: Shall have the meaning specified therefor in any
Intercreditor Agreement.
Substitute Equipment: With respect to any Trust, (i) means any Aircraft
of a type specified in this Agreement and, at the election of the Company,
substituted prior to the applicable Cut-off Date, if any, pursuant to the terms
of this Agreement and (ii) means any Spare Engine of a type specified in this
Agreement and, at the election of the Company, substituted prior to the
applicable Cut-off Date, if any, pursuant to the terms of this Agreement.
Transfer Date: Has the meaning assigned to that term in a related
Refunding Agreement or any of the terms "Delivery Date", "Funding Date" or
"Closing Date" in a related Refunding Agreement.
Triggering Event: Shall have the meaning specified therefor in any
Intercreditor Agreement.
Trust: With respect to the Certificates of any series, means the trust
created pursuant to the Basic Agreement and the related Trust Supplement for
the benefit of the Holders of the Certificates of such series.
Trust Indenture Act: Except as otherwise provided in Section 9.06, means
the Trust Indenture Act of 1939 as in force at the date as of which this Basic
Agreement was executed.
Trust Property: With respect to any Trust means (i) the Equipment Notes
held as the property of such Trust, all monies at any time paid thereon and all
monies due and to become due thereunder, (ii) the rights of such Trust under
any Intercreditor Agreement, including all monies receivable in respect of such
rights, (iii) all monies receivable under any Liquidity Facility for such Trust
and (iv) funds from time to time deposited in the related Escrow Account, the
related Certificate Account and the related Special Payments Account and any
proceeds from the sale by the Trustee pursuant to Article VI hereof of any such
Equipment Note.
Trust Supplement: Means an agreement supplemental hereto pursuant to
which (i) a separate Trust is created for the benefit of the Holders of the
Certificates of a series, (ii) the issuance of the Certificates of such series
representing fractional undivided interests in such Trust is authorized and
(iii) the terms of the Certificates of such series are established.
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Trustee: Means the institution executing this Basic Agreement as Trustee,
or its successor in interest, and any successor trustee appointed as provided
herein.
Trustee's Lien: Has the meaning specified in Section 7.16.
Underwriter: With respect to the Certificates of any series, has the
meaning specified as such in the Trust Supplement establishing such series.
Section 1.02. Compliance Certificates and Opinions. Upon any application
or request by the Company, any Owner Trustee or any Indenture Trustee to the
Trustee to take any action under any provision of this Basic Agreement or, in
respect of the Certificates of any series, this Agreement, the Company, such
Owner Trustee or such Indenture Trustee, as the case may be, shall furnish to
the Trustee an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Basic Agreement
or this Agreement relating to the proposed action have been complied with and
an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Basic Agreement or this
Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or,opinion with respect to compliance with a condition
or covenant provided for in this Basic Agreement or, in respect of the
Certificates of any series, this Agreement (other than a certificate provided
pursuant to Section 8.04(d)) or any Trust Supplement shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions in this
Basic Agreement or this Agreement relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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Section 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any Opinion of Counsel stated to be based on the opinion of other counsel
shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Basic Agreement or, in respect of the Certificates of
any series, this Agreement, they may, but need not, be consolidated and form
one instrument.
Section 1.04. Acts of Certificateholders. (a) Any direction, consent,
waiver or other action provided by this Agreement in respect of the
Certificates of any series to be given or taken by Certificateholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Certificateholders in person or by an agent or proxy duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required pursuant to this
Agreement, to the Company or any Indenture Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Certificateholders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of such
Trust Supplement and conclusive in favor of the Trustee, the Company and the
related Indenture Trustee, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of deeds
or administer oaths that the Person executing such instrument acknowledged to
him the execution thereof or by an affidavit of a witness to such execution
sworn to before any such notary or such other officer and where such execution
is by an officer of a corporation or association or a member of a partnership,
on behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact
and date of the execution of any such instrument or writing, or the authority
of the Person executing
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the same, may also be proved in any other reasonable manner which the Trustee
deems sufficient.
(c) In determining whether the Certificateholders of the requisite
Fractional Undivided Interests of Certificates of any series Outstanding have
given any direction, consent or waiver (a "Direction"), under this Agreement,
Certificates owned by the Company, 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 a Responsible Officer of the Trustee knows to be so owned
shall be so disregarded. Notwithstanding the foregoing, (i) if any, such
Person owns 100% of the Certificates of any series Outstanding, such
Certificates shall not be so disregarded as aforesaid, and (ii) if any amount
of Certificates of such series so owned by any such Person have been pledged in
good faith, such Certificates shall not be disregarded as aforesaid if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Certificates and that the pledgee is not the
Company, any related Owner Trustee, any related Owner Participant or any
Affiliate of any such Person.
(d) The Company may at its option by delivery of an Officer's Certificate
to the Trustee set a record date to determine the Certificateholders in respect
of the Certificates of any series, entitled to give any consent, request,
demand, authorization, direction, notice, waiver or other Act. Notwithstanding
Section 316(c) of the Trust Indenture Act, such record date shall be the record
date specified in such Officer's Certificate which shall be a date not more
than 30 days prior to the first solicitation of Certificateholders in
connection therewith. If such a record date is fixed, such consent, request,
demand, authorization, direction, notice, waiver or other Act may be given
before or after such record date, but only the Certificateholders of record of
the applicable series at the close of business on such record date shall be
deemed to be Certificateholders for the purposes of determining whether
Certificateholders of the requisite proportion of Outstanding Certificates of
such series have authorized or agreed or consented to such consent, request,
demand, authorization, direction, notice, waiver or other Act, and for that
purpose the Outstanding Certificates of such series shall be computed as of
such record date; provided that no such consent, request, demand,
authorization, direction, notice, waiver or other Act by the Certificateholders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Basic Agreement not later than one year
after the record date.
(e) Any direction, consent, waiver or other action by the
Certificateholder of any Certificate shall bind the Certificateholder of every
Certificate issued upon the transfer
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thereof or in exchange therefor or in lieu thereof, whether or not notation of
such action is made upon such Certificate.
(f) Except as otherwise provided in Section 1.04(c), Certificates of any
series owned by or pledged to any Person shall have an equal and proportionate
benefit under the provisions of this Agreement, without preference, priority,
or distinction as among all of the Certificates of such series.
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ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF EQUIPMENT NOTES
Section 2.01. Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Certificates of each series which
may be authenticated and delivered under this Basic Agreement is limited to an
amount equal to the aggregate principal amount of the Equipment Notes held in
the related Trust. The Certificates may be issued from time to time in one or
more series and shall be designated generally as the "Pass Through
Certificates", with such further designations added or incorporated in such
title for the Certificates of each series as specified in the related Trust
Supplement. Each Certificate shall bear upon its face the designation so
selected for the series to which it belongs. All Certificates of the same
series shall be substantially identical except that the Certificates of a
series may differ as to denomination and as may otherwise be provided in the
Trust Supplement establishing the Certificates of such series. Each series of
Certificates issued pursuant to this Agreement will evidence fractional
undivided interests in the related Trust and, except as may be contained in any
Intercreditor Agreement, will have no rights, benefits or interests in respect
of any other Trust or the Trust Property held therein. All Certificates of the
same series shall be in all respects equally and ratably entitled to the
benefits of this Agreement without preference, priority or distinction on
account of the actual time or times of authentication and delivery, all in
accordance with the terms and provisions of this Agreement.
(b) The following matters shall be established with respect to the
Certificates of each series issued hereunder by a Trust Supplement executed and
delivered by and among the Company and the Trustee:
(1) the formation of the Trust as to which the Certificates of such
series represent fractional undivided interests and its designation
(which designation shall distinguish such Trust from each other Trust
created under this Basic Agreement and a Trust Supplement);
(2) the specific title of the Certificates of such series (which
title shall distinguish the Certificates of such series from each other
series of Certificates created under this Basic Agreement and a Trust
Supplement);
(3) any limit upon the aggregate principal amount of the
Certificates of such series which may be authenticated and delivered
(which limit shall not pertain to Certificates authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of other Certificates of the series pursuant to Sections 3.03, 3.04
and 3.05;
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(4) the Cut-off Date with respect to the Certificates of such
series;
(5) the Regular Distribution Dates applicable to the Certificates of
such series;
(6) the Final Legal Distribution Date with respect to the
Certificates of such series;
(7) the Special Distribution Dates applicable to the Certificates of
such series;
(8) if other than as provided in Section 7.11(b), the Registrar or
the Paying Agent for the Certificates of such series, including any
Co-Registrar or additional Paying Agent;
(9) if other than as provided in Section 3.01, the denominations in
which the Certificates of such series shall be issuable;
(10) if other than United States dollars, the currency or currencies
(including currency units) in which the Certificates of such series shall
be denominated;
(11) the specific form of the Certificates of such series (including
the interest rate applicable thereto (or, in the case of any Certificates
denominated in a currency other than United States dollars and if other
than as provided in Section 3.09, whether and the circumstances under
which beneficial owners of interests in such Certificates in permanent
global form may exchange such interests for Certificates of such series
and of like tenor of any authorized form and denomination);
(12) a description of the Equipment Notes to be acquired and held in
the related Trust and of the related Equipment and Note Documents;
(13) provisions with respect to the terms for which the definitions
set forth in Article I hereof or the terms of Section 11.01 hereof permit
or require further specification in the related Trust Supplement;
(14) any restrictions (including legends) in respect of ERISA;
(15) whether such series will be subject to an Intercreditor
Agreement and, if so, the specific designation of such Intercreditor
Agreement and whether such series may be purchased in accordance with
Section 6.01(b) hereof; and
(16) any other terms of the Certificates of such series (which terms
shall not be inconsistent with the provisions of the Trust Indenture
Act), including any terms which may
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be required or advisable under United States laws or regulations or
advisable in connection with the marketing of Certificates of the series.
(c) At any time and from time to time after the execution and delivery of
this Basic Agreement and a Trust Supplement forming a Trust and establishing
the terms of Certificates of a series, Certificates of such series shall be
executed, authenticated and delivered by the Trustee to the Person or Persons
specified by the Company upon request of the Company and upon satisfaction of
any conditions precedent set forth in such Trust Supplement or in any other
document to which a Trustee is a party relating to the issuance of the
Certificates of such series.
Section 2.02. Acquisition of Equipment Notes.
(a) Unless otherwise specified in the related Trust Supplement, on or
prior to the Issuance Date of the Certificates of a series, the Trustee shall
execute and deliver the related Refunding Agreements in the form delivered to
the Trustee by the Company. The Trustee shall issue and sell such
Certificates, in authorized denominations and in such Fractional Undivided
Interests, so as to result in the receipt of consideration in an amount equal
to the aggregate purchase price of such Equipment Notes and, concurrently
therewith, the Trustee shall purchase, pursuant to the terms and conditions of
the Refunding Agreements, the Equipment Notes at a purchase price equal to the
amount of such consideration so received. Except as provided in Sections 3.03,
3.04 and 3.05 hereof, the Trustee shall not execute, authenticate or deliver
Certificates of such series in excess of the aggregate amount specified in this
paragraph. The provisions of this Subsection (a) are subject to the provisions
of Subsection (b) below.
(b) If on or prior to the Issuance Date with respect to a series of
Certificates the Company shall deliver to the Trustee a Postponement Notice
relating to one or more Postponed Notes, the Trustee shall postpone the
purchase of such Postponed Notes and shall deposit into an escrow account (as
to such Trust, the "Escrow Account") to be maintained as a part of the related
Trust an amount equal to the purchase price of such Postponed Notes (the
"Escrowed Funds"). The Escrowed Funds so deposited shall be invested by the
Trustee at the written direction and risk of, and for the benefit of, the
Company in Specified Investments (i) maturing no later than any scheduled
Transfer Date relating to such series of Certificates or (ii) if no such
Transfer Date has been scheduled, maturing on the next Business Day, or (iii)
if the Company has given notice to the Trustee that any Postponed Notes will
not be issued, with respect to the portion of the Escrowed Funds relating to
such Postponed Notes, maturing on the next applicable Special Distribution
Date, if such investments are reasonably available for purchase. The Trustee
shall make withdrawals from the Escrow Account only as provided in this
Agreement. Upon request of the Company on one
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or more occasions and the satisfaction of the closing conditions specified in
the applicable Refunding Agreements on or prior to the related Cut-off Date,
the Trustee shall purchase the applicable Postponed Notes with the Escrowed
Funds withdrawn from the Escrow Account. The purchase price shall equal the
principal amount of such Postponed Notes.
The Trustee shall hold all Specified Investments until the maturity
thereof and will not sell or otherwise transfer Specified Investments. If
Specified Investments held in an Escrow Account mature prior to any applicable
Transfer Date, any proceeds received on the maturity of such Specified
Investments (other than any earnings thereon) shall be reinvested by the
Trustee at the written direction and risk of, and for the benefit of, the
Company in Specified Investments maturing as provided in the preceding
paragraph.
Any earnings on Specified Investments received from time to time by the
Trustee shall be promptly distributed to the Company. The Company shall pay to
the Trustee for deposit to the relevant Escrow Account an amount equal to any
losses on such Specified Investments as incurred. On the Initial Regular
Distribution Date in respect of the Certificates of any series, the Company
will pay (in immediately available funds) to the Trustee an amount equal to the
interest that would have accrued on any Postponed Notes, if any, purchased
after the Issuance Date if such Postponed Notes had been purchased on the
Issuance Date, from the Issuance Date to, but not including, the date of the
purchase of such Postponed Notes by the Trustee.
If, in respect of the Certificates of any series, the Company notifies the
Trustee prior to the Cut-off Date that any Postponed Notes will not be issued
on or prior to the Cut-off Date for any reason, on the next Special
Distribution Date for such Certificates occurring more than 20 days following
the date of such notice (i) the Company shall pay to the Trustee for deposit in
the related Special Payments Account, in immediately available funds, an amount
equal to the interest that would have accrued on the Postponed Notes designated
in such notice at a rate equal to the interest rate applicable to such
Certificates from the Issuance Date to, but not including, such Special
Distribution Date and (ii) the Trustee shall transfer an amount equal to that
amount of Escrowed Funds that would have been used to purchase the Postponed
Notes designated in such notice and the amount paid by the Company pursuant to
the immediately preceding clause (i) to the related Special Payments Account
for distribution as a Special Payment in accordance with the provisions hereof.
If, on such Cut-off Date, an amount equal to less than all of the Escrowed
Funds (other than Escrowed Funds referred to in the immediately preceding
paragraph) has been used to purchase Postponed Notes, on the next such Special
Distribution Date occurring more than 20 days following such Cut-off Date (i)
the Company shall pay to the Trustee for deposit in such Special
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Payments Account, in immediately available funds, an amount equal to the
interest that would have accrued on such Postponed Notes contemplated to be
purchased with such unused Escrowed Funds (other than Escrowed Funds referred
to in the immediately preceding paragraph) but not so purchased at a rate equal
to the interest rate applicable to such Certificates from the Issuance Date to,
but not including, such Special Distribution Date and (ii) the Trustee shall
transfer such unused Escrowed Funds and the amount paid by the Company pursuant
to the immediately preceding clause (i) to such Special Payments Account for
distribution as a Special Payment in accordance with the provisions hereof.
Section 2.03. Acceptance by Trustee. The Trustee, upon the execution and
delivery of a Trust Supplement creating a Trust and establishing a series of
Certificates, shall acknowledge its acceptance of all right, title, and
interest in and to the Equipment Notes to be acquired pursuant to Section 2.02
hereof and the related Refunding Agreements and shall declare that the Trustee
holds and will hold such right, title, and interest, together with all other
property constituting the Trust Property of such Trust, for the benefit of all
then present and future Certificateholders of such series, upon the trusts
herein and in such Trust Supplement set forth. By its payment for and
acceptance of each Certificate of such series issued to it under this
Agreement, each initial Certificateholder of such series as grantor of such
Trust shall thereby join in the creation and declaration of such Trust.
Section 2.04. Limitation of Powers. Each Trust shall be constituted
solely for the purpose of making the investment in the Equipment Notes provided
for in the related Trust Supplement, and, except as set forth herein or in this
Agreement, the Trustee shall not be authorized or empowered to acquire any
other investments or engage in any other activities and, in particular, the
Trustee shall not be authorized or empowered to do anything that would cause
such Trust to fail to qualify as a "grantor trust" for federal income tax
purposes (including as subject to this restriction, acquiring the Aircraft or
Spare Engine (as defined in the respective related Indentures) by bidding such
Equipment Notes or otherwise, or taking any action with respect to any such
Aircraft or Spare Engine once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01. Form, Denomination and Execution of Certificates. The
Certificates of each series shall be issued in fully registered form without
coupons and shall be substantially in the form attached hereto as Exhibit A,
with such omissions, variations and insertions as are permitted by this
Agreement, and may have such letters, numbers or other marks of identification
and such legends or endorsements printed, lithographed or engraved thereon, as
may be required to comply with the rules of
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any securities exchange on which such Certificates may be listed or to conform
to any usage in respect thereof, or as may, consistently herewith, be
prescribed by the Trustee or by the officer executing such Certificates, such
determination by said officer to be evidenced by his signing the Certificates.
Any portion of the text of any Certificate may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the Certificate.
Except as provided in Section 3.09, the definitive Certificates of such
series shall be printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner permitted
by the rules of any securities exchange on which the Certificates may be
listed, all as determined by the officer executing such Certificates, as
evidenced by his execution of such Certificates.
Except as otherwise provided in the related Trust Supplement, the
Certificates of each series shall be issued in denominations of $1,000 and
integral multiples thereof, except that one Certificate of each 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. No Certificate of any series
shall be entitled to any benefit under this Agreement, or be valid for any
purpose unless there appears on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A hereto executed
by the Trustee by manual signature, and such certificate of authentication upon
any Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates of any series shall be dated on the date of their authentication.
Section 3.02. Authentication of Certificates. The Trustee shall duly
authenticate and deliver Certificates of each series in authorized
denominations equalling in the aggregate the aggregate principal amount of the
Equipment Notes to be purchased by the Trustee pursuant to the related
Refunding Agreements, and evidencing the entire ownership of the related Trust.
Section 3.03. Temporary Certificates. Pending the preparation of
definitive Certificates of any series, the Trustee may execute, authenticate
and deliver temporary Certificates of such series which are printed,
lithographed, typewritten, or otherwise produced, in any denomination,
containing substantially
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the same terms and provisions as set forth in Exhibit A hereto, except for such
appropriate insertions, omissions, substitutions and other variations relating
to their temporary nature as the officer executing such temporary Certificates
may determine, as evidenced by its execution of such temporary Certificates.
If temporary Certificates of any series are issued, the Company will cause
definitive Certificates of such series to be prepared without unreasonable
delay. After the preparation of definitive Certificates of such series, the
temporary Certificates shall be exchangeable for definitive Certificates upon
surrender of such temporary Certificates at the Corporate Trust Office of the
Trustee, or at the office or agency of the Trustee maintained in accordance
with Section 7.11, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Certificates, the Trustee shall
execute, authenticate and deliver in exchange therefor definitive Certificates
of like series, in authorized denominations and of a like aggregate Fractional
Undivided Interest. Until so exchanged, such temporary Certificates shall in
all respects be entitled to the same benefits under this Agreement as
definitive Certificates.
Section 3.04. Registration of Transfer and Exchange of Certificates. The
Trustee shall cause to be kept at the office or agency to be maintained by it
in accordance with the provisions of Section 7.11 a register (the "Register")
for each series of Certificates in which, subject to such reasonable
regulations as it may prescribe, the Trustee shall provide for the registration
of Certificates of such series and of transfers and exchanges of such
Certificates as herein provided. The Trustee shall initially be the registrar
(the "Registrar") for the purpose of registering Certificates of each series
and transfers and exchanges of such Certificates as herein provided.
If a Person other than the Trustee is appointed by the Company as the
Registrar, the Company will give the Trustee prompt written notice of the
appointment of such Registrar and of the location, and any change in the
location, of the Register, and the Trustee shall have the right to inspect the
Register at all reasonable times and to obtain copies thereof, and the Trustee
shall have the right to conclusively rely upon an officers' certificate
executed on behalf of the Registrar as to the names and addresses of the
Certificateholders and the principal amounts and numbers of such Certificates.
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
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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. All Certificates issued upon any
registration of transfer or exchange of Certificates shall be valid obligations
of the Trust, evidencing the same interest therein, and entitled to the same
benefits under this Agreement, as the Certificates surrendered upon such
registration of transfer or exchange. Every Certificate presented or
surrendered for registration of transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Registrar duly executed by the Certificateholder thereof or its
attorney duly authorized in writing.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Trustee shall
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of
Certificates. All Certificates surrendered for registration of transfer and
exchange shall be canceled and subsequently destroyed by the Trustee.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate is surrendered to the Registrar, or the Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (b) there is delivered to the Registrar and the Trustee such
security, indemnity or bond, as may be required by them to save each of them
harmless, then, in the absence of notice to the Registrar or the Trustee that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate or
Certificates of like series, in authorized denominations and of like Fractional
Undivided Interest. In connection with the issuance of any new Certificate
under this Section 3.05, the Trustee shall require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Registrar) connected therewith. Any duplicate Certificate
issued pursuant to this Section 3.05 shall constitute conclusive evidence of
the appropriate Fractional Undivided Interest in the related Trust, as if
originally issued, whether or not the lost stolen or destroyed Certificate
shall be found at any time.
Section 3.06. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Trustee, the Registrar, and any
Paying Agent of the Trustee may treat the person in whose name any Certificate
is registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 4.02 and for all other purposes
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whatsoever, and neither the Trustee, the Registrar, nor any Paying Agent of the
Trustee shall be affected by any notice to the contrary.
Section 3.07. Cancellation. All Certificates surrendered for payment or
transfer or exchange shall, if surrendered to any Person party hereto other
than the Registrar, be delivered to the Registrar for cancellation. No
Certificates shall be authenticated in lieu of or in exchange for any
Certificates canceled as provided in this Section, except as expressly
permitted by this Agreement. All canceled Certificates held by the Registrar
shall be destroyed and a certification of their destruction delivered to the
Trustee.
Section 3.08. Limitation of Liability for Payments. All payments or
distributions made to Certificateholders of any series under the related Trust
Supplement shall be made only from the Trust Property of the related Trust and
only to the extent that the Trustee shall have sufficient income or proceeds
from such Trust Property to make such payments in accordance with the terms of
Article IV of this Agreement. Each Certificateholder, by its acceptance of a
Certificate, agrees that it will look solely to the income and proceeds from
the Trust Property of the related Trust to the extent available for
distribution to such Certificateholder as provided in this Agreement.
Section 3.09. Book-Entry and Definitive Certificates.
(a) The Certificates of any series may be issued in the form of one or
more typewritten Certificates representing the Book-Entry Certificates of such
series, to be delivered to The Depository Trust Company, the initial Clearing
Agency, by, or on behalf of, the Company. In such case, the Certificates of
such series delivered to The Depository Trust Company shall initially be
registered on the Register in the name of CEDE & Co., the nominee of the
initial Clearing Agency, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the Certificates
of such series, except as provided above and in Subsection (c) below. As to
the Certificates of any series, unless and until definitive, fully registered
Certificates (the "Definitive Certificates") have been issued pursuant to
Subsection (c) below:
(i) the provisions of this Section 3.09 shall be in full force and
effect;
(ii) the Company, the Paying Agent, the Registrar and the Trustee
may deal with the Clearing Agency and the Clearing Agency Participants
for all purposes (including the making of distributions on the
Certificates and the distribution of statements pursuant to Section 4.03)
as the authorized representatives of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.09
conflict with any other provisions of this
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Agreement (other than the provisions of any Trust Supplement amending
this Section 3.09 as permitted by this Basic Agreement), the provisions
of this Section 3.09 shall control;
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Certificate Owners and the Clearing
Agency Participants; and until Definitive Certificates are issued
pursuant to Subsection (c) below, the Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit distributions of principal and interest and premium, if any,
on the Certificates to such Clearing Agency Participants; and
(v) whenever this Agreement requires or permits actions to be taken
based upon instructions or directions of Certificateholders of such
series holding Certificates of such series evidencing a specified
percentage of the Fractional Undivided Interests in the related Trust,
the Clearing Agency shall be deemed to represent such percentage only to
the extent that it has received instructions to such effect from
Certificate Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the beneficial
interest in Certificates of such series and has delivered such
instructions to the Trustee. The Trustee shall have no obligation to
determine whether the Clearing Agency has in fact received any such
instructions.
(b) 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 (c) 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) If with respect to the Certificates of any series (i) the Company
advises the Trustee in writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities and the Trustee or the Company
is unable to locate a qualified successor, (ii) the Company at its option,
advises the Trustee in writing that it elects to terminate the book-entry
system through the Clearing Agency or (iii) after the occurrence of an Event of
Default with respect to the related Trust, Certificate Owners of Book-Entry
Certificates of such series evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the related Trust, by Act
of said Certificate Owners delivered to the Company and the Trustee, advise the
Company, the Trustee and the Clearing Agency through the Clearing Agency
Participants in writing that the continuation of a book-entry system through
the Clearing Agency Participants is no longer in the best interests of the
Certificate Owners of
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such series, then the Trustee shall notify all Certificate Owners of such
series, through the Clearing Agency, of the occurrence of any such event and of
the availability of Definitive Certificates. Upon surrender to the Trustee of
all the Certificates of such series held by the Clearing Agency, accompanied by
registration instructions from the Clearing Agency Participants for
registration of Definitive Certificates in the names of Certificate Owners of
such series, the Trustee shall issue and deliver the Definitive Certificates of
such series in accordance with the instructions of the Clearing Agency.
Neither the Company, the Registrar, the Paying Agent nor the Trustee shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such registration instructions. Upon
the issuance of Definitive Certificates of such series, the Trustee shall
recognize the Person in whose name the Definitive Certificates are registered
in the Register as Certificateholders hereunder. Neither the Company nor the
Trustee shall be liable if the Trustee or the Company is unable to locate a
qualified successor Clearing Agency.
(d) The provisions of this Section 3.09 may be made inapplicable to any
series or may be amended with respect to any series in the related Trust
Supplement.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account.
(a) The Trustee shall establish and maintain on behalf of the
Certificateholders of each series a Certificate Account as one or more
non-interest-bearing accounts. The Trustee shall hold the Certificate Account
in trust for the benefit of the Certificateholders of such series, and shall
make or permit withdrawals therefrom only as provided in this Agreement. On
each day when a Scheduled Payment is made to the Trustee, the Trustee, upon
receipt thereof, shall immediately deposit the aggregate amount of such
Scheduled Payment into the Certificate Account.
(b) The Trustee shall establish and maintain on behalf of the
Certificateholders of each series a Special Payments Account as one or more
accounts, which shall be non-interest bearing except as provided in Section
4.04. The Trustee shall hold the Special Payments Account in trust for the
benefit of the Certificateholders of such series, and shall make or permit
withdrawals therefrom only as provided in this Agreement. On each day when one
or more Special Payments are made to the Trustee, the Trustee, upon receipt
thereof, shall immediately deposit the aggregate amount of such Special
Payments into the Special Payments Account.
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(c) The Trustee shall present to the Indenture Trustee to which an
Equipment Note relates such Equipment Note on the date of its stated final
maturity or, in the case of any Equipment Note which is to be redeemed in whole
pursuant to the relevant Indenture, on the applicable redemption date under
such Indenture.
Section 4.02. Distributions from Certificate Account and Special Payments
Account.
(a) On each Regular Distribution Date with respect to a series of
Certificates or as soon thereafter as the Trustee has confirmed receipt of the
payment of the Scheduled Payments due on the Equipment Notes held in the
related Trust on such date, the Trustee shall distribute out of the applicable
Certificate Account the entire amount deposited therein pursuant to Section
4.01(a). There shall be so distributed to each Certificateholder of record of
such series on the Record Date with respect to such Regular Distribution Date
(other than as provided in Section 11.01 concerning the final distribution), by
check mailed to such Certificateholder at the address appearing in the
Register, such Certificateholder's pro rata share (based on the aggregate
Fractional Undivided Interest in the related Trust held by such
Certificateholder) of the aggregate amount in the applicable Certificate
Account.
(b) On each Special Distribution Date with respect to any Special Payment
with respect to a series of Certificates or as soon thereafter as the Trustee
has confirmed receipt of the Special Payments due on the Equipment Notes held
in the related Trust or realized upon the sale of such Equipment Notes, the
Trustee shall distribute out of the applicable Special Payments Account the
entire amount of such Special Payment deposited therein pursuant to Section
4.01(b). There shall be so distributed to each Certificateholder of record of
such series on the Record Date with respect to such Special Distribution Date
(other than as provided in Section 11.01 concerning the final distribution), by
check mailed to such Certificateholder at the address appearing in the
Register, such Certificateholder's pro rata share (based on the aggregate
Fractional Undivided Interest in the related Trust held by such
Certificateholder) of the aggregate amount in the applicable Special Payments
Account on account of such Special Payment.
(c) The Trustee shall at the expense of the Company, cause notice of each
Special Payment with respect to a series of Certificates to be mailed to each
Certificateholder of such series at his address as it appears in the Register.
In the event of redemption or purchase of Equipment Notes held in the related
Trust, such notice shall be mailed not less than 20 days prior to the date any
such Special Payment is scheduled to be distributed. In the case of any other
Special Payments, such notice shall be mailed as soon as practicable after the
Trustee has confirmed that it has received funds for such Special Payment.
Notices mailed by the Trustee shall set forth:
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(i) the scheduled Special Distribution Date and the Record Date
therefor (except as otherwise provided in Section 11.01),
(ii) the amount of the Special Payment for each $1,000 face amount
Certificate (taking into account any payment to be made by the Company
pursuant to Section 2.02(b)) and the amount thereof constituting
principal premium, if any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a Regular
Distribution Date for the Certificates of such series, the total amount
to be received on such date for each $1,000 face amount Certificate.
If the amount of premium, if any, payable upon the redemption or purchase
of an Equipment Note has not been calculated at the date that the Trustee mails
notice of a Special Payment, it shall be sufficient if the notice sets forth
the other amounts to be distributed and states that any premium received will
also be distributed.
If any redemption of the Equipment Notes held in any Trust is canceled,
the Trustee, as soon as possible after learning thereof, shall cause notice
thereof to be mailed to each Certificateholder of the related series at its
address as it appears on the Register.
Section 4.03. Statements to Certificateholders.
(a) On each Regular Distribution Date and Special Distribution Date
with respect to a series of Certificates, the Trustee will include with each
distribution to Certificateholders of the related series a statement, giving
effect to such distribution to be made on such Regular Distribution Date or
Special Distribution Date, as the case may be, setting forth the following
information (per $1,000 face amount Certificate as to (i) and (ii) below):
(i) The amount of such distribution allocable to principal and the
amount allocable to 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 the Clearing
Agency, on the Record Date prior to each Distribution Date, the Trustee will
request from the Clearing Agency a securities position listing setting forth
the names of all the Clearing Agency Participants reflected on the Clearing
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Agency's books as holding interests in the Certificates on such Record Date.
On each Distribution Date, the applicable Trustee will mail to each such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant
for forwarding to holders of interests in the Certificates. On each
Distribution Date, the applicable Trustee will mail to each Underwriter the
statement described above.
(b) Within a reasonable period of time after the end of each calendar year
but not later than the latest date permitted by law, the Trustee shall furnish
to each Person who at any time during such calendar year was a
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i) and (a)(ii) with respect to the related
Trust for such calendar year or, in the event such Person was a
Certificateholder of record during a portion of such calendar year, for the
applicable portion of such year, and such other items as are readily available
to the Trustee and which a Certificateholder shall reasonably request as
necessary for the purpose of such Certificateholder's preparation of its
Federal income tax returns. With respect to Certificates registered in the
name of the Clearing Agency, such report and such other items shall be prepared
on the basis of information supplied to the Trustees by the Clearing Agency
Participants and shall be delivered by the Trustee to such Clearing Agency
Participants to be available for forwarding by such Clearing Agency
Participants to holders of interests in Certificates.
Section 4.04. Investment of Special Payment Moneys. Any money received
by the Trustee pursuant to Section 4.01(b) representing a Special Payment which
is not to be promptly distributed shall, to the extent practicable, be invested
in Permitted Investments by the Trustee as directed in writing by the Company
pending distribution of such Special Payment pursuant to Section 4.02. Any
investment made pursuant to this Section 4.04 shall be in such Permitted
Investments having maturities not later than the date that such moneys are
required to be used to make the payment required under Section 4.02 on the
applicable Special Distribution Date and the Trustee shall hold any such
Permitted Investments until maturity. The Trustee shall have no liability with
respect to any investment made pursuant to this Section 4.04, other than by
reason of the willful misconduct or negligence of the Trustee. All income and
earnings from such investments shall be distributed on such Special
Distribution Date as part of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence. The Company, at its
own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises, except as
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otherwise specifically permitted in Section 5.02; provided, however, that the
Company shall not be required to preserve any right or franchise if the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company.
Section 5.02. Consolidation, Merger, Etc. The Company shall not
consolidate with or merge into any other corporation or convey, transfer or
lease substantially all of its assets as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer or
lease substantially all of the assets of the Company as an entirety shall
be a "citizen of the United States" (as defined in Section 40102(a)(15)
of Title 49 of the United States Code) holding a carrier operating
certificate issued by the Secretary of Transportation pursuant to Chapter
447 of Title 49, United States Code, for aircraft capable of carrying 10
or more individuals or 6,000 pounds or more of cargo and with respect to
which there is in force an air carrier operating certificate issued
pursuant to Part 121 of the regulations under the sections of Xxxxx 00,
Xxxxxx Xxxxxx Code, relating to aviation;
(b) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer or
lease substantially all of the assets of the Company as an entirety shall
execute and deliver to the Trustee applicable to the Certificates of each
series a duly authorized, valid, binding and enforceable agreement in
form and substance reasonably satisfactory to the Trustee containing an
assumption by such successor corporation or Person of the due and
punctual performance and observance of each covenant and condition of the
Note Documents to which the Company is a party and of this Agreement
applicable to the Certificates of each series to be performed or observed
by the Company;
(c) immediately after giving effect to such transaction, no Event of
Default applicable to the Certificates of each series or event which is,
or after notice or passage of time, or both, would be, such an Event of
Default shall have occurred and be continuing; and
(d) the Company shall have delivered to the Trustee an Officers'
Certificate of the Company and an Opinion of Counsel of the Company
(which may be the Company's General Counsel) reasonably satisfactory to
the Trustee, each stating that such consolidation, merger, conveyance,
transfer or lease and the assumption agreement mentioned in clause (b)
above comply with this Section 5.02 and that all conditions precedent
herein provided for relating to such transaction have been complied with.
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Upon any consolidation or merger, or any conveyance, transfer or lease of
substantially all of the assets of the Company as an entirety in accordance
with this Section 5.02, the successor corporation or Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Agreement applicable
to the Certificates of each series with the same effect as if such successor
corporation or Person had been named as the Company herein. No such
conveyance, transfer or lease of substantially all of the assets of the Company
as an entirety shall have the effect of releasing the Company or any successor
corporation or Person which shall theretofore have become such in the manner
prescribed in this Section 5.02 from its liability in respect of any Note
Document and of this Agreement applicable to the Certificates of such series to
which it is a party.
ARTICLE VI
DEFAULT
Section 6.01. Events of Default. (a) Exercise of Remedies: Upon the
occurrence and during the continuation of any Indenture Default under any
Indenture, the Trustee may, to the extent it is the Controlling Party at such
time, direct the exercise of remedies as provided in any Intercreditor
Agreement.
(b) Purchase Rights of Certificateholders: By acceptance of its
Certificate, each Certificateholder agrees that at any time after the
occurrence and during the continuation of a Triggering Event, each
Certificateholder of Certificates of a series will have certain rights, the
exercise of which will be specified in the applicable Trust Supplement, to
purchase the class of Certificates with immediate seniority to the Certificates
held by the purchasing Certificateholder. The purchase price with respect to
the Certificates of any series shall be equal to the Pool Balance of the
Certificates of such series, together with accrued and unpaid interest thereon
to the date of such purchase, without premium, but including any other amounts
then due and payable to the Certificateholders under this Agreement, any
Intercreditor Agreement or any other Note Document or on or in respect of the
Certificates of such series; provided, however, that no such purchase of
Certificates of such series shall be effective unless the purchaser shall
certify to the Trustee that contemporaneously with such purchase, such
purchaser is purchasing, pursuant to the terms of this Agreement and the other
Agreements, if any, relating to Certificates of multiple series that are
subject to the same Intercreditor Agreement (such other Agreements as defined
in the Trust Supplements establishing such series, the "Other Agreements"), the
Certificates of each such series that is senior to the Certificates held by
such purchaser. Each payment of the purchase price of the Certificates of any
series shall be made to an account or accounts designated by the Trustee and
each such purchase shall
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be subject to the terms of this Section. Each Certificateholder of any series
agrees by its acceptance of Certificates of such series that it will, upon
payment from any such Certificateholders of Certificates with a lower seniority
of the purchase price specified herein, forthwith sell, assign, transfer and
convey to the purchaser thereof (without recourse, representation or warranty
of any kind except for its own acts), all of the right, title, interest and
obligation of such Certificateholder in this Agreement, any Intercreditor
Agreement, the Liquidity Facility, the Note Documents and all Certificates of
such series held by such Certificateholder (excluding all right, title and
interest under any of the foregoing to the extent such right, title or interest
is with respect to an obligation not then due and payable as respects any
action or inaction or state of affairs occurring prior to such sale) and the
purchaser shall assume all of such Certificateholder's obligations under this
Agreement, any Intercreditor Agreement, the Liquidity Facility and the Note
Documents. The Certificates of such series will be deemed to be purchased on
the date payment of the purchase price is made notwithstanding the failure of
the Certificateholders to deliver any Certificates of such series and, upon
such a purchase, (i) the only rights of the Certificateholders will be to
deliver the Certificates to the purchaser and receive the purchase price for
such Certificates of such series and (ii) if the purchaser shall so request,
such Certificateholder will comply with all of the provisions of Section 3.04
hereof to enable new Certificates of such series to be issued to the purchaser
in such denominations as it shall request. All charges and expenses in
connection with the issuance of any such new Certificates shall be borne by the
purchaser thereof.
(c) No Action Contrary to the Company's Rights under a Related Lease.
Notwithstanding any of the provisions of this Agreement to the contrary, each
Trustee agrees and each Certificateholder of any series agrees by its
acceptance of such Certificate for the benefit of the Company that it will not
take any action contrary to the Company's rights under any related Lease,
including the right of the Company to possession and use the quiet enjoyment of
the Equipment, except in accordance with the provisions of the related Lease.
Section 6.02. Incidents of Sale of Equipment Notes. Upon any sale of all
or any part of the Equipment Notes made either under the power of sale given
under this Agreement or otherwise for the enforcement of this Agreement, the
following shall be applicable:
(1) Certificateholders and Trustee May Purchase Equipment Notes.
Any Certificateholder, the Trustee in its individual or any other
capacity or any other Person may bid for and purchase any of the
Equipment Notes, and upon compliance with the terms of sale, may hold,
retain, possess and dispose of such Equipment Notes in their own absolute
right without further accountability.
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(2) Receipt of Trustee Shall Discharge Purchaser. The receipt of
the Trustee or of the officer making such sale shall be a sufficient
discharge to any purchaser for his purchase money, and, after paying such
purchase money and receiving such receipt, such purchaser or its personal
representative or assigns shall not be obliged to see to the application
of such purchase money, or be in any way answerable for any loss,
misapplication or non-application thereof.
(3) Application of Moneys Received upon Sale. Any moneys collected
by the Trustee upon any sale made either under the power of sale given by
this Agreement or otherwise for the enforcement of this Agreement shall,
after payment of fees and expenses of the Trustee as provided in Section
7.06, be applied as provided in Section 4.02.
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May
Bring Suit. If there shall be a failure to make payment when due and payable
of the principal of, premium, if any, or interest on any Equipment Note, or if
there shall be any failure to pay Rent (as defined in the relevant Lease) under
any Lease when due and payable, then the Trustee, in its own name, and as
trustee of an express trust, as holder of such Equipment Notes, to the extent
permitted by and in accordance with the terms of any Intercreditor Agreement
and any Note Documents (subject to the rights of the applicable Owner Trustee
or Owner Participant to cure any such failure in accordance with the applicable
Indenture), shall be entitled and empowered to institute any suits, actions or
proceedings at law, in equity or otherwise, for the collection of the sums so
due and unpaid on such Equipment Notes or under such Lease and may prosecute
any such claim or proceeding to judgment or final decree with respect to the
whole amount of any such sums so due and unpaid.
Section 6.04. Control by Certificateholders. Subject to Section 6.03 and
any Intercreditor Agreement, the Certificateholders holding Certificates of a
series evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in the related Trust shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee with respect to such Trust or pursuant to the terms of any
Intercreditor Agreement, or exercising any trust or power conferred on the
Trustee under this Agreement or any Intercreditor Agreement, including any
right of the Trustee as Controlling Party under any Intercreditor Agreement or
as holder of the Equipment Notes, provided that
(1) such Direction shall not in the opinion of the Trustee be in
conflict with any rule of law or with this Agreement and would not
involve the Trustee in personal liability or expense,
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the
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Certificateholders of such series not taking part in such Direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such Direction.
Section 6.05. Waiver of Past Defaults. Subject to any Intercreditor
Agreement, the Certificateholders holding Certificates of a series evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in the Trust (i) may on behalf of all of the Certificateholders waive any past
Event of Default hereunder and its consequences or (ii) if the Trustee is the
Controlling Party, may direct the Trustee to instruct the applicable Indenture
Trustee to waive, any past Indenture Default under any Indenture and its
consequences, and thereby annul any Direction given by such Certificateholders
or the Trustee to such Indenture Trustee with respect thereto, except a
default:
(1) in the deposit of any Scheduled Payment or Special Payment under
Section 4.01 or in the distribution of any payment under Section 4.02 on
the Certificates of a series, or
(2) in the payment of the principal of (premium, if any) or interest
on the Equipment Notes, or
(3) in respect of a covenant or provision hereof which under Article
IX hereof cannot be modified or amended without the consent of each
Certificateholder holding an Outstanding Certificate of a series affected
thereby.
Upon any such waiver, such default shall cease to exist with respect to
Certificates of such series and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose and any direction given by the
Trustee on behalf of the Certificateholders of such series to the relevant
Indenture Trustee shall be annulled with respect thereto; but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon. Upon any such waiver, the Trustee shall vote the
Equipment Notes issued under the relevant Indenture to waive the corresponding
Indenture Default.
Section 6.06. Right of Certificateholders to Receive Payments Not To Be
Impaired. Anything in this Agreement to the contrary notwithstanding,
including without limitation Section 6.07 hereof, but subject to any
Intercreditor Agreement, the right of any Certificateholder to receive
distributions of payments required pursuant to Section 4.02 hereof on the
applicable Certificates when due, or to institute suit for the enforcement of
any such payment on or after the applicable Regular Distribution Date or
Special Distribution Date, shall not
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be impaired or affected without the consent of such Certificateholder.
Section 6.07. Certificateholders May Not Bring Suit Except Under Certain
Conditions. A Certificateholder of any series shall not have the right to
institute any suit, action or proceeding at law or in equity or otherwise with
respect to this Agreement, for the appointment of a receiver or for the
enforcement of any other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given written
notice to the Trustee of a continuing Event of Default;
(2) the Certificateholders holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not less than 25%
of the related Trust shall have requested the Trustee in writing to
institute such action, suit or proceeding and shall have offered to the
Trustee indemnity as provided in Section 7.02(e);
(3) the Trustee shall have refused or neglected to institute any
such action, suit or proceeding for 60 days after receipt of such notice,
request and offer of indemnity; and
(4) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Certificateholders
holding Certificates of such series evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the related
Trust.
It is understood and intended that no one or more of the
Certificateholders of any series shall have any right in any manner whatever
hereunder or under the related Trust Supplement or under the Certificates of
such series to (i) surrender, impair, waive, affect, disturb or prejudice any
property in the Trust Property of the related Trust or the lien of any related
Indenture on any property subject thereto, or the rights of the
Certificateholders of such series or the holders of the related Equipment
Notes, (ii) obtain or seek to obtain priority over or preference to any other
such Certificateholder of such series or (iii) enforce any right under this
Agreement, except in the manner herein provided and for the equal, ratable and
common benefit of all the Certificateholders of such series subject to the
provisions of this Agreement.
Section 6.08. Remedies Cumulative. Every remedy given hereunder to the
Trustee or to any of the Certificateholders of any series shall not be
exclusive of any other remedy or remedies, and every such remedy shall be
cumulative and in addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise.
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Section 6.09. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Agreement, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in the manner and
to the extent provided in the Trust Indenture Act; provided that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit
instituted by the Company.
ARTICLE VII
THE TRUSTEE
Section 7.01. Notice of Defaults. As promptly as practicable after, and
in any event within 90 days after the occurrence of any default (as such term
is defined below) hereunder known to the Trustee, the Trustee shall transmit by
mail to the Company, any related Owner Trustees, the related Indenture Trustees
and the Certificateholders holding Certificates of the related series in
accordance with Section 313(c) of the Trust Indenture Act, notice of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in
the payment of the principal of (premium, if any) or interest on any Equipment
Note, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interests of the
Certificateholders of the related series. For the purpose of this Section in
respect of any Trust, the term "default" means any event that is, or after
notice or lapse of time or both would become, an Event of Default in respect of
that Trust.
Section 7.02. Certain Rights of Trustee. Subject to the provisions of
Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Request;
(c) whenever in the administration of this Agreement or any
Intercreditor Agreement the Trustee shall deem it desirable that a matter
be proved or established prior to
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taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate of the Company,
any related Owner Trustee or any related Indenture Trustee;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement or any Intercreditor
Agreement at the request or direction of any of the Certificateholders
pursuant to this Agreement or any Intercreditor Agreement unless such
Certificateholders shall have offered to the Trustee reasonable security
or indemnity against the cost, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, or report, notice, request, direction, consent,
order, bond, debenture or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this
Agreement or 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;
(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; and
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(j) except during the continuance of an Event of Default, the
Trustee undertakes and shall be responsible to perform only such duties
as are specifically set forth herein and no implied covenants or
obligations shall be read into this Agreement or be enforceable against
Trustee.
Section 7.03. Not Responsible for Recitals or Issuance of Certificates.
The recitals contained herein and in the Certificates of each series, except
the certificates of authentication, shall not be taken as the statements of the
Trustee, and the Trustee assumes no responsibility for their correctness.
Subject to Section 7.14, the Trustee makes no representations as to the
validity or sufficiency of this Basic Agreement or any Trust Supplement, any
Note Documents, any Refunding Agreement or any Intercreditor Agreement, any
Equipment Notes or the Certificates of any series, except that the Trustee
hereby represents and warrants that this Basic Agreement has been, and each
Trust Supplement, each Certificate and each Intercreditor Agreement of, or
relating to, each series will be, executed and delivered by one of its officers
who is duly authorized to execute and deliver such document on its behalf.
Section 7.04. May Hold Certificates. The Trustee, any Paying Agent,
Registrar or any of their Affiliates or any other agent, in their respective
individual or any other capacity, may become the owner or pledgee of
Certificates and subject to Sections 310(b) and 311 of the Trust Indenture Act
may otherwise deal with the Company, any Owner Trustees or the Indenture
Trustees with the same rights it would have if it were not Trustee, Paying
Agent, Registrar or such other agent.
Section 7.05. Money Held in Trust. Money held by the Trustee or the
Paying Agent in trust hereunder or under any Trust Supplement need not be
segregated from other funds except to the extent required herein or by law and
neither the Trustee nor the Paying Agent shall have any liability for interest
upon any such moneys except as provided for herein.
Section 7.06. Compensation and Reimbursement. The Company agrees:
(1) to pay, or cause to be paid, to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided 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),
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except any such expense, disbursement or advance as may be attributable
to its negligence, willful misconduct or bad faith or as may be incurred
due to the Trustee's breach of its representations and warranties set
forth in Section 7.14;
(3) to indemnify, or cause to be indemnified, the Trustee for, and
to hold it harmless against, any loss, liability or expense (other than
for or with respect to any tax) incurred without negligence, willful
misconduct or bad faith, on its part, arising out of or in connection
with the acceptance or administration of this Trust, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder, except for any such loss, liability or expense incurred
by reason of the Trustee's breach of its representations and warranties
set forth in Section 7.14. The Trustee shall notify the Company promptly
of any claim 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 without its consent; and
(4) to indemnify, or cause to be indemnified, the Trustee, solely in
its individual capacity, for, and to hold it harmless against, any tax
(except to the extent the Trustee is reimbursed therefor pursuant to the
next paragraph, provided that no indemnification shall be available with
respect to any tax attributable to the Trustee's compensation for serving
as such) incurred without negligence, willful misconduct or bad faith, on
its part, arising out of or in connection with the acceptance or
administration of this Trust, including any costs and expenses incurred
in contesting the imposition of any such tax. The Trustee, in its
individual capacity, shall notify the Company promptly of any claim for
any tax for which it may seek indemnity. The Trustee shall permit the
Company to contest the imposition of such tax and the Trustee, in its
individual capacity, shall, at the Company's expense, cooperate in the
defense. The Trustee, in its individual capacity, 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 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
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(other than any tax attributable to the Trustee's compensation for serving as
such), including any costs and expenses incurred in contesting the imposition
of any such tax. The Trustee shall notify the Company of any claim for any tax
for which it may seek reimbursement. The Trustee shall cooperate in the
contest by the Company of any such claim. If the Trustee reimburses itself
from the Trust Property of such Trust for any such tax it will within 30 days
mail a brief report setting forth the amount of such tax and the circumstances
thereof to all Certificateholders of such series as their names and addresses
appear in the Register.
As security for the performance of the obligations of the Company under
this Section 7.06 with respect to each Trust the Trustee shall have a lien
prior to the Certificates of the related series upon all property and funds
held or collected by the Trustee in its capacity as Trustee with respect to
such Certificates and the related Trust.
Section 7.07. Corporate Trustee Required; Eligibility. Each Trust shall
at all times have a Trustee which shall be eligible to act as a trustee under
Section 310(a) of the Trust Indenture Act and shall have a combined capital and
surplus of at least $100,000,000 (or a combined capital and surplus in excess
of $5,000,000 and the obligations of which, whether now in existence or
hereafter incurred, are fully and unconditionally guaranteed by a corporation
organized and doing business under the laws of the United States, any State or
Territory thereof or of the District of Columbia that has a combined capital
and surplus of at least $100,000,000). If such corporation publishes reports
of conditions at least annually, pursuant to law or to the requirements of
Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section 7.07, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of conditions so published.
In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 7.07 to act as Trustee of any Trust, the
Trustee shall resign immediately as Trustee of such Trust in the manner and
with the effect specified in Section 7.08.
Section 7.08. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee of any Trust pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee under Section
7.09.
(b) The Trustee may resign at any time as trustee of any or all Trusts by
giving written notice thereof to the Company, the Authorized Agents, the
related Owner Trustees and the related Indenture Trustees. If an instrument of
acceptance
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by a successor Trustee shall not have been delivered to the Company, the
related Owner Trustees and the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time as trustee of any Trust by Act
of the Certificateholders of the related series holding Certificates of such
series evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in such Trust delivered to the Trustee and to the Company,
the related Owner Trustees and the related Indenture Trustees.
(d) If at any time in respect of any Trust:
(1) the Trustee shall fail to comply with Section 310 of the Trust
Indenture Act after written request therefor by the Company or by any
Certificateholder of the related series who has been a bona fide
certificateholder for at least six months; or
(2) the Trustee shall cease to be eligible under Section 7.07 and
shall fail to resign after written request therefor by the Company or by
any such Certificateholder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any case, (i) the Company may remove the Trustee or (ii) any
Certificateholder of the related series who has been a bona fide
Certificateholder for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee of such
Trust.
(e) If a Responsible Officer of the Trustee shall obtain actual knowledge
of an Avoidable Tax (as hereinafter defined) in respect of any Trust which has
been or is likely to be asserted, the Trustee shall promptly notify the Company
and shall, within 30 days of such notification, resign as Trustee of such Trust
hereunder unless within such 30-day period the Trustee shall have received
notice that the Company has agreed to pay such tax. The Company shall promptly
appoint a successor Trustee of such Trust in a jurisdiction where there are no
Avoidable Taxes. As used herein, an "Avoidable Tax" in respect of such Trust
means a state or local tax (i) upon (w) such Trust, (x) such Trust Property,
(y) Certificateholders of such Trust or (z) the Trustee for which the Trustee
is entitled to seek reimbursement from the Trust Property of such Trust, and
(ii) which would be avoided if the Trustee were located in
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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 Act of the Certificateholders of
the related series holding Certificates of such series evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in such
Trust delivered to the Company, the related Owner Trustees, the related
Indenture Trustee and the retiring Trustee, the successor Trustee so appointed
shall, with the approval of the Company, which approval shall not be
unreasonably withheld, forthwith upon its acceptance of such appointment,
become the successor Trustee of such Trust and supersede the successor Trustee
of such Trust appointed as provided above. If no successor Trustee shall have
been so appointed as provided above and accepted appointment in the manner
hereinafter provided, the resigning Trustee or any Certificateholder who has
been a bona fide Certificateholder of the related series for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
of such Trust.
(g) The successor Trustee of a Trust shall give notice of the resignation
and removal of the Trustee and appointment of the successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Certificateholders of the related series as their names and addresses appear in
the Register. Each notice shall include the name of such successor Trustee and
the address of its Corporate Trust Office.
Section 7.09. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee with respect to any or all Trusts an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee with respect to such Trusts shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on request of the Company or the successor Trustee, such retiring
Trustee shall execute and deliver an instrument transferring to such successor
Trustee all such rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee in respect of such Trusts hereunder,
subject nevertheless to its lien, if any, provided for in Section 7.06. Upon
request of any such successor Trustee, the Company, the
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retiring Trustee and such successor Trustee shall execute and deliver any and
all instruments containing such provisions as shall be necessary or desirable
to transfer and confirm to, and for more fully and certainly vesting in, such
successor Trustee all such rights, powers and trusts.
If a successor Trustee is appointed with respect to one or more (but not
all) Trusts, the Company, the predecessor Trustee and each successor Trustee
with respect to any Trust shall execute and deliver a supplemental agreement
hereto which shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor Trustee with respect to the Trusts as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and shall add to or change any of the provisions of this Basic Agreement and
the applicable Trust Supplements as shall be necessary to provide for or
facilitate the administration of the Trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental agreement shall
constitute such Trustees co-Trustees of the same Trust and that each such
Trustee shall be Trustee of separate Trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article VII.
Section 7.10. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Certificates shall have been
executed or authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such execution or authentication and deliver the Certificates
so executed or authenticated with the same effect as if such successor Trustee
had itself executed or authenticated such Certificates.
Section 7.11. Maintenance of Agencies.
(a) With respect to each series of Certificates, there shall at all times
be maintained in the Borough of Manhattan, The City of New York, an office or
agency where Certificates of such series may be presented or surrendered for
registration of transfer or for exchange, and for payment thereof and where
notices and demands to or upon the Trustee in respect of such Certificates or
of the related Trust Supplement may be served.
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Such office or agency shall be initially Fleet National Bank c/o Shawmut Trust
Company, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Written notice of the
location of each such other office or agency and of any change of location
thereof shall be given by the Trustee to the Company, any Owner Trustees, the
Indenture Trustees and the Certificateholders of such series. In the event
that no such office or agency shall be maintained or no such notice of location
or of change of location shall be given, presentations and demands may be made
and notices may be served at the Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying Agent hereunder
with respect to the Certificates of each series. Each such Authorized Agent
shall be a bank or trust company, shall be a corporation organized and doing
business under the laws of the United States or any state, with a combined
capital and surplus of at least $75,000,000, or a corporation having a combined
capital and surplus in excess of $5,000,000 the obligations of which are
guaranteed by a corporation organized and doing business under the laws of the
United States or any state, with a combined capital and surplus of at least
$75,000,000, and shall be authorized under such laws to exercise corporate
trust powers, subject to supervision by Federal or state authorities. The
Trustee shall initially be the Paying Agent and, as provided in Section 3.04,
Registrar hereunder with respect to the Certificates of each series. Each
Registrar shall furnish to the Trustee, at stated intervals of not more than
six months, and at such other times as the Trustee may request in writing, a
copy of the Register maintained by such Registrar.
(c) Any corporation into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authorized Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authorized Agent, shall be the successor of such Authorized Agent
hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or such Authorized Agent or such successor
corporation.
(d) Any Authorized Agent may at any time resign by giving written notice
of resignation to the Trustee, the Company, any related Owner Trustees and the
related Indenture Trustees. The Company may, and at the request of the Trustee
shall, at any time terminate the agency of any Authorized Agent by giving
written notice of termination to such Authorized Agent and to the Trustee.
Upon the resignation or termination of an Authorized Agent or in case at any
time any such Authorized Agent shall cease to be eligible under this Section
(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
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agency has been terminated or who shall have ceased to be eligible under this
Section. The Company shall give written notice of any such appointment made by
it to the Trustee, any related Owner Trustees and the related Indenture
Trustees; and in each case the Trustee shall mail notice of such appointment to
all Certificateholders of the related series as their names and addresses
appear on the Register for such series.
(e) The Company agrees to pay, or cause to be paid, from time to time to
each Authorized Agent reasonable compensation for its services and to reimburse
it for its reasonable expenses.
Section 7.12. Money for Certificate Payments to Be Held in Trust. All
moneys deposited with any Paying Agent for the purpose of any payment on
Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of this
Section. Moneys so deposited and held in trust shall constitute a separate
trust fund for the benefit of the Certificateholders with respect to which such
money was deposited.
The Trustee may at any time, for the purpose of obtaining the satisfaction
and discharge of this Agreement or for any other purpose, direct any Paying
Agent to pay to the Trustee all sums held in trust by such Paying Agent, such
sums to be held by the Trustee upon the same trusts as those upon which such
sums were held by such Paying Agent; and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Section 7.13. Registration of Equipment Notes in Trustee's Name. Subject
to Section 12.04, the Trustee agrees that all Equipment Notes, and Permitted
Investments, if any, shall be issued in the name of the Trustee as trustee for
the applicable Trust or its nominee and held by the Trustee, or, if not so
held, the Trustee or its nominee shall be reflected as the owner of such
Equipment Notes or Permitted Investments as the case may be, in the register of
the issuer of such Equipment Notes or Permitted Investments.
Section 7.14. Representations and Warranties of Trustee. The Trustee
hereby represents and warrants that:
(a) the Trustee is a national banking association organized and
validly existing and in good standing under the laws of the United States
of America;
(b) the Trustee has full power, authority and legal right to
execute, deliver, and perform this Agreement, any Intercreditor Agreement
and the Refunding Agreements and has taken all necessary action to
authorize the execution, delivery, and performance by it of this
Agreement, any Intercreditor Agreement and the Refunding Agreements;
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(c) the execution, delivery and performance by the Trustee of this
Agreement, any Intercreditor Agreement and the Refunding Agreements (i)
will not violate any provision of any United States federal law or the
law of the State of Connecticut, in each case, governing the banking and
trust powers of the Trustee or any order, writ, judgment, or decree of
any court, arbitrator, or governmental authority applicable to the
Trustee or any of its assets, (ii) will not violate any provision of the
articles of association or by-laws of the Trustee, and (iii) will not
violate any provision of, or constitute, with or without notice or lapse
of time, a default under, or result in the creation or imposition of any
lien on any properties included in the Trust Property pursuant to the
provisions of any mortgage, indenture, contract, agreement or other
undertaking to which it is a party, which violation, default or lien
could reasonably be expected to have an adverse effect on the Trustee's
performance or ability to perform its duties hereunder or thereunder or
on the transactions contemplated herein or therein;
(d) the execution, delivery and performance by the Trustee of this
Agreement, any Intercreditor Agreement and the Refunding Agreements will
not require the authorization, consent or approval of, the giving of
notice to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency of the United
States or the State of Connecticut regulating the banking and corporate
trust activities of the Trustee; and
(e) this Agreement, any Intercreditor Agreement and the Refunding
Agreements have been duly executed and delivered by the Trustee and
constitute the legal, valid, and binding agreements of the Trustee,
enforceable against it in accordance with their respective terms,
provided that enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and (ii) general principles of equity.
Section 7.15. Withholding Taxes; Information Reporting. As to the
Certificates of any series, the Trustee, as trustee of the related grantor
trust created by this Agreement, shall exclude and withhold from each
distribution of principal, premium, if any, and interest and other amounts due
under this Agreement or under the Certificates of such series any and all
withholding taxes applicable thereto as required by law. The Trustee agrees to
act as such withholding agent and, in connection therewith, whenever any taxes
or similar charges are required to be withheld with respect to any amounts paid
by or on behalf of the Trustee in respect of the Certificates of such series,
to withhold such amounts and timely pay the same to the authority in the name
of and on behalf of the Certificateholders of such series, that it will file
any necessary withholding tax returns or statements when due, and that, as
promptly as possible
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after the payment thereof, it will deliver to each such Certificateholder
necessary documentation showing the payment thereof together with such
additional documentary evidence as such Certificateholders of such series may
reasonably request from time to time. The Trustee agrees to file any other
information reports as it may be required to file under United States law.
Section 7.16. Trustee's Liens. The Trustee in its individual capacity
agrees that it will in respect of each Trust created by this Agreement at its
own cost and expense promptly take any action as may be necessary to duly
discharge and satisfy in full any mortgage, pledge, lien, charge, encumbrance,
security interest or claim ("Trustee's Liens") on or with respect to the Trust
Property of such Trust which is attributable to the Trustee either (i) in its
individual capacity and which is unrelated to the transactions contemplated by
this Agreement, the related Refunding Agreements or the related Note Documents,
or (ii) as Trustee hereunder or in its individual capacity and which arises out
of acts or omissions by the Trustee which are in breach of this Agreement.
Section 7.17. Preferential Collection of Claims. The Trustee shall
comply with Section 311(a) of the Trust Indenture Act, excluding any creditor
relationship listed in Section 311(b) of the Trust Indenture Act. If the
Trustee shall resign or be removed as Trustee, it shall be subject to Section
311(a) of the Trust Indenture Act to the extent provided therein.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and Addresses of
Certificateholders. The Company will furnish to the Trustee within 15 days
after each Record Date with respect to a Scheduled Payment, and at such other
times as the Trustee may request in writing, within 30 days after receipt by
the Company of any such request, a list, in such form as the Trustee may
reasonably require, of all information in the possession or control of the
Company as to the names and addresses of the Certificateholders of such series,
in each case as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that so long as the Trustee is the sole Registrar
for such series, no such list need be furnished; and provided, further,
however, that no such list need be furnished for so long as a copy of the
Register is being furnished to the Trustee pursuant to Section 7.11.
Section 8.02. Preservation of Information; Communications to
Certificateholders. The Trustee shall preserve, in as current
a form as is reasonably practicable, the names and addresses of
Certificateholders of each series contained in the most recent list furnished
to the Trustee as provided in Section 7.11 or Section 8.01, as the case may be,
and
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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 7.11 or Section 8.01, as the
case may be, upon receipt of a new list so furnished.
Section 8.03. Reports by Trustee. Within 60 days after May 15 of each
year commencing with the first full year following the issuance of any series
of Certificates, the Trustee shall transmit to the Certificateholders of each
series, as provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of such May 15, if required by Section 313(a) of the Trust
Indenture Act.
Section 8.04. Reports by the Company. The Company shall:
(a) file with the Trustee, within 30 days after the Company is
required to file the same with the SEC, copies of the annual reports and
of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may from time to time by
rules and regulations prescribe) which the Company is required to file
with the SEC pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934, as amended; or, if the Company is not required to
file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the SEC, in accordance with
rules and regulations prescribed by the SEC, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with the rules
and regulations prescribed by the SEC, such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants of the Company provided for in this Agreement,
as may be required by such rules and regulations, including, in the case
of annual reports, if required by such rules and regulations,
certificates or opinions of independent public accountants, conforming to
the requirements of Section 1.02;
(c) transmit to all Certificateholders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act such
summaries of any information, documents and reports required to be filed
by the Company pursuant to Subsections (a) and (b) of this Section 8.04
as may be required by rules and regulations prescribed by the SEC;
(d) furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting
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officer as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Agreement (it being understood that
for purposes of this paragraph (d), such compliance shall be determined
without regard to any period of grace or requirement of notice provided
under this Agreement); and
(e) make available to any Certificateholder upon request, the
annual audited and quarterly unaudited financial statements of the
Company which are provided to the Trustee.
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders. Without the consent of the Certificateholders, the Company
may, and the Trustee (subject to Section 9.03) shall, at any time and from time
to time, enter into one or more agreements supplemental hereto or, if
applicable, to any Intercreditor Agreement, any Refunding Agreement or any
Liquidity Facility in form satisfactory to the Trustee, for any of the
following purposes:
(1) to provide for the formation of a Trust, the issuance of a
series of certificates and the other matters contemplated by Section
2.01(b); or
(2) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein contained; 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 in
this Agreement conferred upon the Company; or
(4) to correct or supplement any provision in this Agreement, any
Intercreditor Agreement, any Refunding Agreement, any Liquidity Facility
or any Indenture which may be defective or inconsistent with any other
provision herein or in any Trust Supplement or to cure any ambiguity,
correct any mistake or to modify any other provisions with respect to
matters or questions arising under this Agreement, any Intercreditor
Agreement, any Refunding Agreement, any Liquidity Facility or any
Indenture, provided that any such action shall not adversely affect the
interests of the Certificateholders of any series; or
(5) to modify, eliminate or add to the provisions of this Agreement
to such extent as shall be necessary to continue the qualification of
this Agreement (including any supplemental agreement) under the Trust
Indenture Act, or under any similar Federal statute hereafter enacted,
and to
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add to this Agreement such other provisions as may be expressly permitted
by the Trust Indenture Act, excluding, however, the provisions referred
to in Section 316(a)(2) of the Trust Indenture Act as in effect at the
date as of which this instrument was executed or any corresponding
provision in any similar Federal statute hereafter enacted; or
(6) to evidence and provide for the acceptance of appointment under
this Agreement by a successor Trustee with respect to one or more Trusts
and to add to or change any of the provisions of this Agreement as shall
be necessary to provide for or facilitate the administration of the
Trusts hereunder and thereunder by more than one Trustee, pursuant to the
requirements of Section 7.09; or
(7) to make any other amendments or modifications hereto, provided
such amendments or modifications shall only apply to Certificates of one
or more series to be thereafter issued;
provided, however, that no such supplemental agreement shall adversely affect
the status of any Trust as a grantor trust under Subpart E, Part I of
Subchapter J of Chapter 1 of Subtitle A of the Internal Revenue Code of 1986,
as amended, for U.S. federal income tax purposes. The Trustee shall be
entitled to rely upon an Opinion of Counsel to such effect.
Section 9.02. Supplemental Agreements with Consent of Certificateholders.
With respect to each separate Trust and the series of Certificates relating
thereto, with the consent of the Certificateholders holding Certificates of any
series evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in such Trust, by Act of said Certificateholders delivered
to the Company and the Trustee, the Company may (with the consent of the Owner
Trustee, if any, relating to such certificates, which consent shall not be
unreasonably withheld), and the Trustee (subject to Section 9.03) shall enter
into an agreement or agreements supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement, any Intercreditor Agreement, any Liquidity
Facility or any Refunding Agreement to the extent applicable to such
Certificateholders or of modifying in any manner the rights and obligations of
such Certificateholders under this Agreement; provided, however, that no such
supplemental agreement shall, without the consent of the Certificateholder of
each Outstanding Certificate affected thereby:
(1) reduce in any manner the amount of, or delay the timing of, any
receipt by the Trustee of payments on the Equipment Notes held in such
Trust or distributions that are required to be made herein on any
Certificate of such series, or change any date of payment of any
Certificate of such series, or change the place of payment where, or the
coin or currency in which, any Certificate of such series is
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payable, or impair the right to institute suit for the enforcement of any
such payment or distribution on or after the Regular Distribution Date or
Special Distribution Date applicable thereto; or
(2) permit the disposition of any Equipment Note in the Trust
Property of such Trust except as permitted by this Agreement or otherwise
deprive such Certificateholder of the benefit of the ownership of the
Equipment Notes in such Trust; or
(3) alter the priority of distributions specified in any
Intercreditor Agreement; or
(4) reduce the specified percentage of the aggregate Fractional
Undivided Interests of such Trust which is required for any such
supplemental agreement, or reduce such specified percentage required for
any waiver (of compliance with certain provisions of this Agreement or
certain defaults hereunder and their consequences) provided for in this
Agreement;
(5) modify any of the provisions of this Section or Section 6.05,
except to increase any such percentage or to provide that certain other
provisions of this Agreement cannot be modified or waived without the
consent of the Certificateholder of each Certificate or such series
affected thereby; or
(6) adversely affect the status of any Trust as a grantor trust
under Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle A of the
Internal Revenue Code of 1986, as amended, for U.S. federal income tax
purposes.
It shall not be necessary for any Act of such Certificateholders under
this Section to approve the particular form of any proposed supplemental
agreement but it shall be sufficient if such Act shall approve the substance
thereof.
Section 9.03. Documents Affecting Immunity or Indemnity. If in the
opinion of the Trustee any document required to be executed by it pursuant to
the terms of Section 9.01 or 9.02 affects any interest, right, duty, immunity
or indemnity in favor of the Trustee under this Basic Agreement or any Trust
Supplement, the Trustee may in its discretion decline to execute such document.
Section 9.04. Execution of Supplemental Agreements. In executing, or
accepting the additional trusts created by, any supplemental agreement
permitted by this Article or the modifications thereby of the trusts created by
this Agreement, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Agreement.
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Section 9.05. Effect of Supplemental Agreements. Upon the execution of
any supplemental agreement under this Article, this Basic Agreement shall be
modified in accordance therewith, and such supplemental agreement shall form a
part of this Basic Agreement for all purposes; and every Certificateholder of
each series theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby to the extent applicable to such series.
Section 9.06. Conformity with Trust Indenture Act. Every supplemental
agreement executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
Section 9.07. Reference in Certificates to Supplemental Agreements.
Certificates of each series authenticated and delivered after the execution of
any supplemental agreement applicable to such series pursuant to this Article
may bear a notation in form approved by the Trustee as to any matter provided
for in such supplemental agreement; and, in such case, suitable notation may be
made upon Outstanding Certificates of such series after proper presentation and
demand.
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indenture and Other Note
Documents. In the event that the Trustee, as holder of any Equipment Notes in
trust for the benefit of the Certificateholders of any series or as Controlling
Party, receives a request for a consent to any amendment, modification, waiver
or supplement under any Indenture or other Note Document the Trustee shall
forthwith send a notice of such proposed amendment, modification, waiver or
supplement to each Certificateholder of such series registered on the Register
as of the date of such notice. The Trustee shall request from
Certificateholders of such series a Direction as to (a) whether or not to take
or refrain from taking any action which a holder of such Equipment Note has the
option to direct, (b) whether or not to give or execute any waivers, consents,
amendments, modifications or supplements as a holder of such Equipment Note and
(c) how to vote any Equipment Note if a vote has been called for with respect
thereto. Provided such a request for Certificateholder Direction shall have
been made, in directing any action or casting any vote or giving any consent as
the holder of any Equipment Note, the Trustee shall vote for or give consent to
any such action with respect to such Equipment Note in the same proportion as
that of (i) the aggregate face amounts of all Certificates of such series
actually voted in favor of or for giving consent to such action by Acts of
Certificateholders to (ii) the aggregate face amount of all Outstanding
Certificates. For purposes of the immediately preceding sentence, a
Certificate shall have been "actually voted" if the Holder of such Certificate
has delivered to the Trustee an instrument evidencing
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such Holder's consent to such Direction on or prior to the Business Day before
the Trustee directs such action or casts such vote or gives such consent.
Notwithstanding the foregoing, but subject to Section 6.04 and any
Intercreditor Agreement, the Trustee may, in its own discretion and at its own
direction consent and notify the relevant Indenture Trustee of such consent to
any amendment, modification, waiver or supplement under the relevant Indenture
or any Note Document, if an Event of Default hereunder shall have occurred and
be continuing, or if such amendment modification or waiver will not adversely
affect the interests of the Certificateholders.
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01. Termination of the Trusts. In respect of each Trust
created by the Basic Agreement as supplemented by a related Trust Supplement,
the respective obligations and responsibilities of the Company and the Trustee
created under this Agreement with respect to the Trust created hereby and such
Trust shall terminate upon the distribution to all Holders of the Certificates
of the series of such Trust and the Trustee of all amounts required to be
distributed to them pursuant to this Agreement and the disposition of all
property held as part of the Trust Property of the related series of such
Trust; provided, however, that in no event shall such Trust continue beyond one
hundred ten (110) years following the date of the earliest execution of this
Agreement.
Notice of any termination of a Trust, specifying the applicable Regular
Distribution Date (or applicable Special Distribution Date, as the case may be)
upon which the Certificateholders of any series may surrender their
Certificates to the Trustee for payment of the final distribution and
cancellation, shall be mailed promptly by the Trustee to Certificateholders of
such series not earlier than the minimum number of days and not more than the
maximum number of days specified therefor in the related Trust Supplement
preceding such final distribution specifying (A) the Regular Distribution Date
(or Special Distribution Date, as the case may be) upon which the proposed
final payment of the Certificates of such series will be made upon presentation
and surrender of Certificates of such series at the office or agency of the
Trustee therein specified, (B) the amount of any such proposed final payment,
and (C) that the Record Date otherwise applicable to such Regular Distribution
Date (or Special Distribution Date, as the case may be) is not applicable,
payments being made only upon presentation and surrender of the Certificates of
such series at the office or agency of the Trustee therein specified. The
Trustee shall give such notice to the Registrar at the time such notice is
given to Certificateholders of such series. Upon presentation and surrender of
the Certificates of such series in accordance with such notice, the Trustee
shall cause to be distributed to Certificateholders of such series amounts
distributable on such
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Regular Distribution Date (or Special Distribution Date, as the case may be)
pursuant to Section 4.02.
In the event that all of the Certificateholders of such series shall not
surrender their Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders of such series to
surrender their Certificates for cancellation and receive the final
distribution with respect thereto. No additional interest shall accrue on the
Certificates after the Regular Distribution Date (or Special Distribution Date,
as the case may be) specified in the first written notice. In the event that
any money held by the Trustee for the payment of distributions on the
Certificates of such series shall remain unclaimed for two years (or such
lesser time as the Trustee shall be satisfied, after sixty days' notice from
the Company, is one month prior to the escheat period provided under applicable
law) after the final distribution date with respect thereto, the Trustee shall
pay to each Indenture Trustee the appropriate amount of money relating to such
Indenture Trustee and shall give written notice thereof to the related Owner
Trustees and the Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder of any series shall not operate to
terminate this Agreement, or the related Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations, and
liabilities of the parties hereto or any of them.
Section 12.02. Liabilities of Certificateholders. Neither the existence
of the Trust nor any provision in this Agreement is intended to or shall limit
the liability the Certificateholders would otherwise incur if the
Certificateholders owned Trust Property as co-owners, or incurred any
obligations of the Trust, directly rather than through the Trust.
Section 12.03. Certificates Nonassessable and Fully Paid.
Certificateholders of each series shall not be personally liable for
obligations of the related Trust, the Fractional Undivided Interests
represented by the Certificates of such series shall be nonassessable for any
losses or expenses of such Trust or for any reason whatsoever, and Certificates
of such series upon authentication thereof by the Trustee pursuant to Section
3.02 are and shall be deemed fully paid. No Certificateholder of such series
shall have any right (except as expressly provided herein) to vote or in any
manner otherwise
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control the operation and management of the related Trust Property, the related
Trust, or the obligations of the parties hereto, nor shall anything set forth
herein, or contained in the terms of the Certificates of such series, be
construed so as to constitute the Certificateholders of such series from time
to time as partners or members of an association.
Section 12.04. Registration of Equipment Notes in Name of Subordination
Agent. If a Trust is party to an Intercreditor Agreement, the Trustee agrees
that all Equipment Notes to be purchased by such Trust shall be issued in the
name of the Subordination Agent under such Intercreditor Agreement or its
nominee and held by such Subordination Agent in trust for the benefit of the
Certificateholders, or, if not so held, such Subordination Agent or its nominee
shall be reflected as the owner of such Equipment Notes in the register of the
issuer of such Equipment Notes.
Section 12.05. Notices.
(a) Unless otherwise specifically provided herein or in the applicable
Trust Supplement with respect to any Trust, all notices required under the
terms and provisions of this Basic Agreement or such Trust Supplement with
respect to such Trust shall be in English and in writing and any such notice
may be given by United States mail, courier service, telegram, telex,
telemessage, telecopy, telefax, cable or facsimile (confirmed by telephone or
in writing in the case of notice by telegram, telex, telemessage, telecopy,
telefax, cable or facsimile) or any other customary means of communication,
if to the Company, to:
Mail: America West Airlines, Inc.
0000 Xxxx Xxx Xxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Senior Vice President-Legal Affairs
Facsimile: (000) 000-0000
if to the Trustee, to:
Mail: Fleet National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Any such notice shall be effective when received.
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(b) The Company or the Trustee, by notice to the other, may designate
additional or different addresses for subsequent notices or communications.
(c) Any notice or communication to Certificateholders of any series shall
be mailed by first-class mail to the addresses for Certificateholders of such
series shown on the Register kept by the Registrar and to addresses filed with
the Trustee for Certificate Owners of such series. Failure so to mail a notice
or communication or any defect in such notice or communication shall not affect
its sufficiency with respect to other Certificateholders or Certificate Owners
of such series.
(d) If 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.
(e) Notwithstanding the foregoing, all communications or notices to the
Trustee shall be deemed to be given only when received by a Responsible Officer
of the Trustee.
(f) The Trustee shall promptly furnish the Company with a copy of any
demand, notice or written communication received by the Trustee hereunder from
any Certificateholder, Owner Trustee or Indenture Trustee.
Section 12.06. Governing Law. THIS BASIC AGREEMENT HAS BEEN DELIVERED IN
THE STATE OF NEW YORK AND, TOGETHER WITH ALL TRUST SUPPLEMENTS AND
CERTIFICATES, SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.07. Severability of Provisions. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or any Trust or of
the Certificates of any series or the rights of the Certificateholders thereof.
Section 12.08. Trust Indenture Act Controls. This Agreement is subject
to the provisions of the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions.
Section 12.09. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
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Section 12.10. 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 permitted assigns,
whether so expressed or not.
Section 12.11. Benefits of Agreement. Nothing in this Agreement or in
the Certificates of any series, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the
Certificateholders of each series, any benefit or any legal or equitable right,
remedy or claim under this Agreement.
Section 12.12. Legal Holidays. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate of
any series shall not be a Business Day with respect to such series, then
(notwithstanding any other provision of this Agreement) payment need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on such Regular Distribution Date or Special
Distribution Date, and no interest shall accrue during the intervening period.
Section 12.13. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original and all of which counterparts
shall constitute but one and the same instrument.
Section 12.14. Communication by Certificateholders with Other
Certificateholders. Certificateholders of any series may communicate with
other Certificateholders of such series with respect to their rights under this
Basic Agreement, the related Trust Supplement or the Certificates of such
series pursuant to Section 3.12(b) of the Trust Indenture Act. The Company,
the 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 12.15. Intention of Parties. The parties hereto intend that any
Trust created hereunder be classified for U.S. federal income tax purposes as a
grantor trust under Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle
A of the Internal Revenue Code of 1986, as amended, and not as a trust or
association taxable as a corporation or as a partnership. The powers granted
and obligations undertaken pursuant to this Agreement shall be so construed so
as to further such intent.
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IN WITNESS WHEREOF, the Company and the Trustee have caused this Basic
Agreement to be duly executed by their respective officers, all as of the day
and year first above written.
AMERICA WEST AIRLINES, INC.
By________________________________
Title:____________________________
FLEET NATIONAL BANK,
as Trustee
By________________________________
Title:____________________________
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EXHIBIT A
FORM OF CERTIFICATE
1 [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE 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.]
AMERICA WEST AIRLINES PASS THROUGH TRUST _________________
Pass Through Certificate, Series___________
Issuance Date: _____________ __, ____
Final Distribution Date: ______________, ____
evidencing a fractional undivided interest in a trust, the
property of which includes certain equipment notes each secured
by one or more Aircraft or Spare Engines owned by or leased to
America West Airlines, Inc.
Certificate
No.__________ $__________ Fractional Undivided Interest
representing ________% of the Trust per
$1,000 of Reference Principal Amount
THIS CERTIFIES THAT ___________________, for value received, is the
registered owner of a Fractional Undivided Interest in the amount of
$________________ (_________________ dollars) (the "Reference Principal
Amount") in the America West Airlines Pass Through Trust _____________ (the
"Trust") created by Fleet National Bank, as trustee (the "Trustee"), pursuant
to a Pass Through Trust Agreement dated as of November __, 1996 (the "Basic
Agreement") between the Trustee and America West Airlines, Inc., a Delaware
corporation (the "Company"), as supplemented by Trust Supplement No.________
thereto dated ____________, ____ (collectively, the "Agreement"), between the
Trustee and 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 "America West
____________________
1 This legend to appear on Book-Entry Certificates to be deposited with The
Depository Trust Company. One Certificate may be issued in definitive form
which shall not have this legend.
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2
Airlines Pass Through Certificates, Series _________" (herein called the
"Certificates"). This Certificate is issued under and is subject to the terms,
provisions, and conditions of the Agreement and any Intercreditor Agreement, to
which agreements the Certificateholder of this Certificate by virtue of the
acceptance hereof assents and by which such Certificateholder is bound. The
property of the Trust includes certain Equipment Notes and all rights of the
Trust to receive any payments under any Intercreditor Agreement or Liquidity
Facility (the "Trust Property"). Each issue of the Equipment Notes is secured
by a security interest in aircraft or spare engines leased to or owned by the
Company.
The Certificates represent fractional undivided interests in the Trust and
the Trust Property, and have no rights, benefits or interest in respect of any
other separate trust established pursuant to the terms of the Basic Agreement
for any other series of certificates issued pursuant thereto. [The undivided
percentage interest in the Trust represented by each of this Certificate (as
specified above) and the other America West Airlines Pass Through Certificates,
Series [____] was determined on the basis of (x) the aggregate of the Reference
Principal Amount of this Certificate (as specified above) and of the other
America West Airlines Pass Through Certificates, Series [____] and (y) the
aggregate original principal amounts of the Equipment Notes constituting the
Trust Property.]
Subject to and in accordance with the terms of the Agreement and any
Intercreditor Agreement, from funds then available to the Trustee, there will
be distributed on each ________and _____________ (a "Regular Distribution
Date"), commencing on ______________, ____, to the Person in whose name this
Certificate is registered at the close of business on the 15th day preceding
the Regular Distribution Date, an amount in respect of the Scheduled Payments
on the Equipment Notes due on such Regular Distribution Date, the receipt of
which has been confirmed by the Trustee, equal to the product of the percentage
interest in the Trust evidenced by this Certificate and an amount equal to the
sum of such Scheduled Payments. Subject to and in accordance with the terms of
the Agreement, in the event that Special Payments on the Equipment Notes are
received by the Trustee, from funds then available to the Trustee, there shall
be distributed on the applicable Special Distribution Date, to the Person in
whose name this Certificate is registered at the close of business on the 15th
day preceding the Special Distribution Date, an amount in respect of such
Special Payments on the Equipment Notes, the receipt of which has been
confirmed by the Trustee, equal to the product of the percentage interest in
the Trust evidenced by this Certificate and an amount equal to the sum of such
Special Payments so received. If a Regular Distribution Date or Special
Distribution Date is not a Business Day, distribution shall be made on the
immediately following Business Day with the same force and effect as if made on
such Regular Distribution Date or Special Distribution Date and no interest
shall accrue during the intervening period. The Trustee
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shall mail notice of each Special Payment and the Special Distribution Date
therefor to the Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Trustee by check
mailed to the Person entitled thereto, without the presentation or surrender of
this Certificate or the making of any notation hereon. Except as otherwise
provided in the Agreement and notwithstanding the above, the final distribution
on this Certificate will be made after notice mailed by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency of the Trustee specified in such notice.
The Certificates do not represent a direct obligation of, or an obligation
guaranteed by, or an interest in, the Company or the Trustee or any affiliate
thereof. The Certificates are limited in right or payment, all as more
specifically set forth on the face hereof and in the Agreement. All payments
or distributions made to Certificateholders under the Agreement shall be made
only from the Trust Property and only to the extent that the Trustee shall have
sufficient income or proceeds from the Trust Property to make such payments in
accordance with the terms of the Agreement. Each Certificateholder of this
Certificate, by its acceptance hereof, agrees that it 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 entire 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 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
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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 denominations of $1,000 Fractional Undivided Interest and integral
multiples thereof, provided that one Certificate may be in a different
denomination. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
authorized denominations evidencing the same aggregate Fractional Undivided
Interest in the Trust, as requested by the Certificateholder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee shall require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
The Trustee, the Registrar, and any agent of the Trustee or the Registrar
may treat the person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Trustee, the Registrar, nor any such
agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts to be distributed to them pursuant to the
Agreement and the disposition of all property held as part of the Trust
Property.
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PROVISIONS OF THE STATE OF NEW YORK.
Unless the certificate of authentication hereon has been executed by the
Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
AMERICA WEST AIRLINES PASS THROUGH TRUST
By: FLEET NATIONAL BANK,
as Trustee
By______________________________
Name:___________________________
Title:__________________________
Dated:_______________
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[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred
to in the within-mentioned Agreement.
FLEET NATIONAL BANK,
as Trustee
By:_________________________________
Name:_______________________________
Title:______________________________
