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EXHIBIT 4(a)
PASS THROUGH TRUST AGREEMENT
Dated as of ______________, 1998
between
DELTA AIR LINES, INC.
and
THE BANK OF NEW YORK
as Trustee
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TABLE OF CONTENTS
Page
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ARTICLE I - DEFINITIONS
Section 1.01. Definitions..........................................................................................8
Section 1.02. Compliance Certificates and Opinions................................................................18
Section 1.03. Form of Documents Delivered to Trustee .............................................................18
Section 1.04. Directions of Certificateholders....................................................................19
ARTICLE II - ORIGINAL ISSUANCE OF CERTIFICATES:
ACQUISITION OF TRUST PROPERTY
Section 2.01. Amount Unlimited; Issuable in Series................................................................20
Section 2.02. Acquisition of Equipment Notes......................................................................22
Section 2.03. Acceptance by Trustee...............................................................................24
Section 2.04. Limitation of Powers................................................................................24
ARTICLE III - THE CERTIFICATES
Section 3.01. Form, Denomination and Execution of Certificates....................................................25
Section 3.02. Authentication of Certificates......................................................................25
Section 3.03. Temporary Certificates..............................................................................26
Section 3.04. Transfer and Exchange...............................................................................26
Section 3.05. Book-Entry and Definitive Certificates..............................................................27
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates...................................................29
Section 3.07. Persons Deemed Owners...............................................................................29
Section 3.08. Cancellation........................................................................................30
Section 3.09. Limitation of Liability for Payments................................................................30
ARTICLE IV - DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account....................................................30
Section 4.02. Distributions from Certificate Account and Special Payments Account ................................31
Section 4.03. Statements to Certificateholders....................................................................33
Section 4.04. Investment of Special Payment Moneys................................................................33
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ARTICLE V - THE COMPANY
Section 5.01. Maintenance of Corporate Existence..................................................................34
Section 5.02. Consolidation, Merger, Etc..........................................................................34
ARTICLE VI - DEFAULT
Section 6.01. Events of Default...................................................................................35
Section 6.02. Incidents of Sale of Equipment Notes................................................................36
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May Bring Suit..................................37
Section 6.04. Control by Certificateholders.......................................................................37
Section 6.05. Waiver of Past Defaults.............................................................................38
Section 6.06. Right of Certificateholders to Receive Payments Not to Be Impaired..................................38
Section 6.07. Certificateholders May Not Bring Suit Except Under Certain Conditions...............................39
Section 6.08. Remedies Cumulative.................................................................................39
Section 6.09. Undertaking for Costs...............................................................................39
ARTICLE VII - THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities.................................................................40
Section 7.02. Notice of Defaults..................................................................................40
Section 7.03. Certain Rights of Trustee...........................................................................41
Section 7.04. Not Responsible for Recitals or Issuance of Certificates............................................42
Section 7.05. May Hold Certificates...............................................................................42
Section 7.06. Money Held in Trust ................................................................................42
Section 7.07. Compensation and Reimbursement .....................................................................42
Section 7.08. Corporate Trustee Required; Eligibility ............................................................42
Section 7.09. Resignation and Removal; Appointment of Successor ..................................................44
Section 7.10. Acceptance of Appointment by Successor .............................................................45
Section 7.11. Merger, Conversion, Consolidation or Succession to Business.........................................46
Section 7.12. Maintenance of Agencies.............................................................................46
Section 7.13. Money for Certificate Payments to Be Held in Trust..................................................48
Section 7.14. Registration of Equipment Notes in Trustee's Name...................................................48
Section 7.15. Representations and Warranties of Trustee...........................................................48
Section 7.16. Withholding Taxes; Information Reporting ...........................................................49
Section 7.17. Trustee's Liens.....................................................................................49
Section 7.18. Preferential Collection of Claims...................................................................50
ARTICLE VIII - CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and
Addresses of Certificateholders ...................................................................50
Section 8.02. Preservation of Information; Communications to Certificateholders...................................50
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Section 8.03. Reports by Trustee..................................................................................50
Section 8.04. Reports by the Company..............................................................................50
ARTICLE IX - SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of Certificateholders.......................................51
Section 9.02. Supplemental Agreements With Consent of Certificateholders..........................................53
Section 9.03. Documents Affecting Immunity or Indemnity...........................................................54
Section 9.04. Execution of Supplemental Agreements................................................................54
Section 9.05. Effect of Supplemental Agreements...................................................................54
Section 9.06. Conformity with Trust Indenture Act.................................................................54
Section 9.07. Reference in Certificates to Supplemental Agreements................................................55
ARTICLE X - AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indenture and Other Note Documents....................................55
ARTICLE XI - TERMINATION OF TRUSTS
Section 11.01. Termination of the Trusts...........................................................................56
ARTICLE XII - MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders..........................................................57
Section 12.02. Liabilities of Certificateholders...................................................................57
Section 12.03. Registration of Equipment Notes in Name of Subordination Agent......................................57
Section 12.04. Notices.............................................................................................57
Section 12.05. Governing Law.......................................................................................58
Section 12.06. Severability of Provisions..........................................................................58
Section 12.07. Trust Indenture Act Controls........................................................................58
Section 12.08. Effect of Headings and Table of Contents............................................................58
Section 12.09. Successors and Assigns..............................................................................58
Section 12.10. Benefits of Agreement...............................................................................58
Section 12.11. Legal Holidays......................................................................................58
Section 12.12. Counterparts........................................................................................60
Section 12.13. Communication by Certificateholders with Other Certificateholders...................................60
Section 12.14. Intention of Parties................................................................................60
EXHIBITS
Exhibit A Form of Certificate
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Reconciliation and tie between Delta Air Lines Pass Through Trust Agreement,
dated as of _______, 1998 and the Trust Indenture Act of 1939. This
reconciliation does not constitute part of the Pass Through Trust Agreement.
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Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
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310(a)(1) 7.08
(a)(2) 7.08
310(b)(i)-(iii) 7.09
312(a) 3.05; 8.01; 8.02
313(a) 8.03
313(c) 8.04
314(a) 8.04(a) - (c)
(a)(4) 8.04(d)
(c)(1) 1.02
(c)(2) 1.02
(e) 1.02
315(b) 7.02
316(a)(last sentence) 1.04(c)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(d)
317(a)(1) 6.03
(b) 7.13
318(a) 12.07
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PASS THROUGH TRUST AGREEMENT
This PASS THROUGH TRUST AGREEMENT, dated as of { }, 1998 (the
"Basic Agreement"), between DELTA AIR LINES, INC., a Delaware corporation (the
"Company"), and THE BANK OF NEW YORK, a banking corporation organized under the
laws of the State of New York, as Trustee, is made with respect to the formation
from time to time of separate Pass Through Trusts, and the issuance from time to
time of separate series of Pass Through Certificates representing fractional
undivided interests in the respective Trusts.
WITNESSETH:
WHEREAS, capitalized terms used herein shall have the meanings
set forth or referred to in Section 1.01;
WHEREAS, from time to time, the Company and the Trustee may enter
into a Trust Supplement 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, subject to the terms of any related Intercreditor
Agreement, shall hold such Equipment Notes in trust for the benefit of the
Certificateholders of such Trust;
WHEREAS, to facilitate the sale of Equipment Notes to, and the
purchase of Equipment Notes by, the Trustee on behalf of each Trust created from
time to time pursuant to this Agreement, the Company as the "Issuer", as such
term is defined in and solely for purposes of the Securities Act of 1933, as
amended, of the Certificates to be issued in respect of each Trust and as the
"Obligor", as such term is defined in and solely for purposes of the Trust
Indenture Act of 1939, as amended, 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
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perform certain administrative and ministerial duties hereunder and is also
undertaking to pay the fees and expenses of the Trustee; and
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;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. For all purposes of this Basic
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms used herein that are defined in this
Article I have the meanings assigned to them in this Article I,
and include the plural as well as the singular;
(b) all other terms used herein that are defined in
the Trust Indenture Act, either directly or by reference therein,
or by the rules promulgated under the Trust Indenture Act, have
the meanings assigned to them therein;
(c) all references in this Basic Agreement to
designated "Articles", "Sections", "Subsections" and other
subdivisions are to the designated Articles, Sections,
Subsections and other subdivisions of this Basic Agreement;
(d) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Basic Agreement
as a whole and not to any particular Article, Section, Subsection
or other subdivision;
(e) whenever the words "including", "include" or
"includes" are used herein, it shall be deemed to be followed by
the phrase "without limitation"; and
(f) 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.
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ACT: has the meaning, with respect to any
Certificateholder, specified in Section 1.04(a).
AFFILIATE: has, for any Person, the meaning specified in
Rule 0-2 under the Trust Indenture Act.
AIRCRAFT: means one or more aircraft, including engines
therefor, owned by or leased to the Company and securing one or
more Equipment Notes.
AUTHORIZED AGENT: means, with respect to the
Certificates of any series, any Paying Agent or Registrar for
the Certificates of such series.
BASIC AGREEMENT: means this Pass Through Trust
Agreement, as the same may from time to time be supplemented,
amended or modified, but does not include any Trust Supplement.
BOOK-ENTRY CERTIFICATES: means, with respect to the
Certificates of any series, a beneficial interest in the
Certificates of such series, ownership and transfers of which
shall be made through book entries as described in Section 3.05.
BUSINESS DAY: means, with respect to the Certificates of
any series, any day other than a Saturday, a Sunday or a day on
which commercial banks are required or authorized to close in
Atlanta, Georgia; New York, New York; or, so long as any
Certificate of such series is outstanding, the city and state in
which the Trustee or any related Loan Trustee maintains its
Corporate Trust Office or receives and disburses funds.
CERTIFICATE: means any one of the certificates executed
and authenticated by the Trustee, substantially in the form of
Exhibit A hereto.
CERTIFICATE ACCOUNT: means, with respect to the
Certificates of any series, the account or accounts created and
maintained for such series pursuant to Section 4.01(a) and the
related Trust Supplement.
CERTIFICATEHOLDER OR HOLDER: means, with respect to the
Certificates of any series, the Person in whose name a
Certificate of such series is registered in the Register for
Certificates of such series.
CERTIFICATE OWNER: means, with respect to the
Certificates of any series, for purposes of Section 3.05, the
Person who owns a Book-Entry Certificate of such series.
CLEARING AGENCY: means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended.
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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 Delta Air Lines, Inc., a Delaware
corporation, or its successor in interest pursuant to Section
5.02, or (only in the context of provisions hereof, if any, when
such reference is required for purposes of compliance with the
Trust Indenture Act) any other "obligor" (within the meaning of
the Trust Indenture Act) with respect to the Certificates of any
series.
CONTROLLING PARTY: means the Person entitled to act
as such pursuant to the terms of any Intercreditor Agreement.
CORPORATE TRUST OFFICE: means, with respect to the
Trustee or any Loan Trustee, the office of such trustee in the
city at which at any particular time its corporate trust business
shall be principally administered.
CUT-OFF DATE: means, with respect to the
Certificates of any series, the date designated as such in the
Trust Supplement establishing such series.
DEFINITIVE CERTIFICATES: has the meaning, with
respect to the Certificates of any series, specified in Section
3.05.
DIRECTION: has the meaning specified in Section
1.04(a).
EQUIPMENT NOTES: means, with respect to the
Certificates of any series, all of the equipment notes issued
under the Indentures related to such series of Certificates.
ERISA: means the Employee Retirement Income Security
Act of 1974, as amended from time to time, or any successor
federal statute.
ESCROW ACCOUNT: has the meaning, with respect to the
Certificates of any series, specified in Section 2.02(b).
ESCROWED FUNDS: has the meaning, with respect to any
Trust, specified in Section 2.02(b).
EVENT OF DEFAULT: means, in respect of any Trust, an
Indenture Event of Default under any Indenture pursuant to which
Equipment Notes held by such Trust were issued.
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FRACTIONAL UNDIVIDED INTEREST: means the fractional
undivided interest in a Trust that is evidenced by a Certificate
relating to such Trust.
INDENTURE: means, with respect to any Trust, each of
the one or more separate trust indenture and security agreements
or trust indenture and mortgages or similar documents described
in, or on a schedule attached to, the Trust Supplement and trust
indenture and security agreement or trust indenture and mortgage
or similar document having substantially the same terms and
conditions which relates to a Substitute Aircraft, as each such
indenture may be amended or supplemented in accordance with its
respective terms; and "Indentures" means all of such agreements.
INDENTURE EVENT OF DEFAULT: means, with respect to
any Indenture, any Indenture Event of Default (as such term is
defined in such Indenture).
INITIAL REGULAR DISTRIBUTION DATE: means, with
respect to the Certificates of any series, the first Regular
Distribution Date on which a Scheduled Payment is to be made.
INTERCREDITOR AGREEMENT: means any agreement by and
among the Trustee, as trustee hereunder with respect to one or
more Trusts, one or more Liquidity Providers and a Subordination
Agent providing, among other things, for the distribution of
payments made in respect of Equipment Notes held by such Trusts.
ISSUANCE DATE: means, with respect to the
Certificates of any series, the date of the issuance of such
Certificates.
LEASE: means any lease between an Owner Trustee, as
the lessor, and the Company, as the lessee, referred to in the
related Indenture, as such lease may be amended, supplemented or
otherwise modified in accordance with its terms; and "Leases"
means all such Leases.
LETTER OF REPRESENTATIONS: means, with respect to
the Certificates of any series, an agreement among the Company,
the Trustee and the initial Clearing Agency.
LIQUIDITY FACILITY: means, with respect to the
Certificates of any series, any revolving credit agreement, letter
of credit or similar facility relating to the Certificates of such
series between a bank or other financial institution 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: means, with respect to the
Certificates of any series, a bank or other financial institution
that agrees to provide a Liquidity Facility for the benefit of the
holders of Certificates of such series.
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LOAN TRUSTEE: means, with respect to any Equipment
Note or the Indenture applicable thereto, the bank or trust
company designated as loan or indenture trustee under such
Indenture, and any successor to such Loan Trustee as such trustee;
and "Loan Trustees" means all of the Loan Trustees under the
Indentures.
NOTE DOCUMENTS: means, with respect to the
Certificates of any series, the Equipment Notes with respect to
such Certificates and, with respect to such Equipment Notes, the
related Indenture, Note Purchase Agreement, Participation
Agreement, if any, and, if the related Aircraft is leased to the
Company, the related Lease and the related Owner Trustee's
Purchase Agreement.
NOTE PURCHASE AGREEMENT: means, with respect to the
Certificates of any series, any note purchase, refunding,
participation or similar agreement providing for, among other
things, the purchase of Equipment Notes by the Trustee on behalf
of the relevant Trust; and "Note Purchase Agreements" means all
such agreements.
OFFICER'S CERTIFICATE: means a certificate signed by
a Responsible Officer of the Company, the Trustee, an Owner
Trustee or a Loan Trustee, as the case may be.
OPINION OF COUNSEL: means a written opinion of legal
counsel who (a) in the case of counsel for the Company may be (i)
a senior attorney of the Company one of whose principal duties is
furnishing advice as to legal matters, (ii) King & Spalding or
(iii) such other counsel designated by the Company and reasonably
acceptable to the Trustee and (b) in the case of any Owner Trustee
or any Loan Trustee, 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: when used with respect to Certificates
of any series, means, as of the date of determination, all
Certificates of such series theretofore authenticated and
delivered under this Agreement, except:
(i) Certificates of such series
theretofore 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
payment of such final distribution payment; and
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(iii) Certificates of such series in
exchange for or in lieu of which other Certificates
of such series have been authenticated and delivered
pursuant to this Agreement.
OWNER PARTICIPANT: means, with respect to any
Equipment Note, the "Owner Participant", if any, as referred to in
the Indenture pursuant to which such Equipment Note is issued and
any permitted successor or assign of such Owner Participant; and
"Owner Participants" at any time of determination means all of the
Owner Participants thus referred to in the Indentures.
OWNER TRUSTEE: means, with respect to any Equipment
Note, the "Owner Trustee", if any, as referred to in the Indenture
pursuant to which such Equipment Note is issued, not in its
individual capacity but solely as trustee; and "Owner Trustees"
means all of the Owner Trustees party to any of the related
Indentures.
OWNER TRUSTEE'S PURCHASE AGREEMENT: has the meaning,
with respect to the Certificates of any series if the related
Aircraft is leased to the Company, specified therefor in the
related Lease.
PARTICIPATION AGREEMENT means, with respect to the
Certificates of any series, any participation or similar agreement
providing for, among other things, the purchase of Equipment Notes
by the Trustee on behalf of the relevant Trust; and "Participation
Agreements" means all of such Agreements.
PAYING AGENT: means, with respect to the
Certificates of any series, the paying agent maintained and
appointed for the Certificates of such series pursuant to Section
7.12.
PERMITTED INVESTMENTS: means obligations of the
United States of America or agencies or instrumentalities thereof
for the payment of which the full faith and credit of the United
States of America is pledged, maturing in not more than 60 days
after the date of acquisition thereof or such lesser time as is
required for the distribution of any Special Payments on a Special
Distribution Date.
PERSON: means any individual, corporation, limited
liability company, partnership, joint venture, association,
joint-stock company, trust, trustee, unincorporated organization,
or government or any agency or political subdivision thereof.
POOL BALANCE: means, with respect to the
Certificates of any series as of any date, (i) the original
aggregate face amount of the Certificates of any series less (ii)
the aggregate amount of all payments made in respect of such
Certificates other than payments made in respect of interest or
premium thereon or reimbursement of any costs or expenses incurred
in connection therewith. The Pool Balance as of any Regular
Distribution Date or Special Distribution Date shall be computed
after giving effect to the payment of principal, if any, on the
Equipment Notes or other Trust Property held in the Trust and the
distribution thereof to be made on such date.
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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
Regular Distribution Date or Special Distribution Date shall be
computed after giving effect to the payment of principal, if any,
on the Equipment Notes or other Trust Property held in the Trust
and the distribution thereof to be made on such Distribution Date.
POSTPONED NOTES: means, with respect to any Trust or
the related series of Certificates, the Equipment Notes to be held
in such Trust as to which a Postponement Notice shall have been
delivered pursuant to Section 2.02(b).
POSTPONEMENT NOTICE: means, with respect to any
Trust or the related series of Certificates, an Officer's
Certificate of the Company (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 (subject to subsequent change from time to time in
accordance with the relevant Note Purchase Agreement or
Participation Agreement), or (b) indicating that such new Transfer
Date (which shall be on or prior to the applicable Cut-off Date)
will be set by subsequent written notice not less than one
Business Day prior to such new Transfer Date (subject to
subsequent change from time to time in accordance with the
relevant Note Purchase Agreement or Participation Agreement).
POTENTIAL PURCHASER: has the meaning, with respect
to any Certificateholder, specified in Section 6.01(b).
PURCHASING CERTIFICATEHOLDER: has the meaning, with
respect to any Certificateholder, specified in Section 6.01(b).
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RECORD DATE: means, with respect to any Trust or the
related series of Certificates, (i) for Scheduled Payments to be
distributed on any Regular Distribution Date, other than the final
distribution with respect to such series, the 15th day (whether or
not a Business Day) preceding such Regular Distribution Date, and
(ii) for Special Payments to be distributed on any Special
Distribution Date, other than the final distribution with respect
to such series, the 15th day (whether or not a Business Day)
preceding such Special Distribution Date.
REGISTER and REGISTRAR: means, each with respect to
the Certificates of any series, the register maintained and the
registrar appointed pursuant to Sections 3.04 and 7.12.
REGULAR DISTRIBUTION DATE: means, with respect to
distributions of Scheduled Payments in respect of any series of
Certificates, each date designated as such in this Agreement,
until payment of all the Scheduled Payments to be made under the
Equipment Notes held in the Trust have been made.
REQUEST: means a request by the Company setting
forth the subject matter of the request accompanied by an
Officer's Certificate and an Opinion of Counsel as provided in
Section 1.02 of this Basic Agreement.
RESPONSIBLE OFFICER: means, in the case of the
Company, the President or any other officer with the authority of
at least a vice president; and, in the case of any Trustee, any
Loan Trustee and any Owner Trustee, any officer in the Corporate
Trust Department of the Trustee, Loan Trustee or Owner Trustee or
any other officer customarily performing functions similar to
those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with a
particular subject.
RESPONSIBLE PARTY: means, with respect to the
Certificates of any series, the person designated as such in the
related Trust Supplement.
SCHEDULED PAYMENT: means, with respect to any
Equipment Note, (i) any payment of principal or interest on such
Equipment Note (other than any such payment which is not in fact
received by the Trustee or any Subordination Agent within five
days of the date on which such payment is scheduled to be made) or
(ii) any payment of interest on the Certificates of any series
with funds drawn under the Liquidity Facility for such series,
which payment represents the installment of principal on such
Equipment Note at the stated maturity of such installment, the
payment of regularly scheduled interest accrued on the unpaid
principal amount of such Equipment Note, or both; PROVIDED,
HOWEVER, that any payment of principal, premium, if any, or
interest resulting from the redemption or purchase of any
Equipment Note shall not constitute a Scheduled Payment.
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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, as amended, or, if at any time after the
execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
SELLING CERTIFICATEHOLDER: has the meaning, with
respect to any Certificateholder, specified in Section 6.01(b).
SPECIAL DISTRIBUTION DATE: means, with respect to
the Certificates of any series, each date on which a Special
Payment is to be distributed as specified in this Agreement.
SPECIAL PAYMENT: means (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), (ii) the amounts required to be distributed pursuant
to the last paragraph of Section 2.02(b) (iii) the amounts
required to be distributed pursuant to the penultimate paragraph
of Section 2.02(b), (iv) any payment in respect of proceeds
received from the sale of all or part of the Equipment Notes by
the Trustee, (v) any payment in respect of amounts paid in respect
of the Equipment Notes following an Indenture Event of Default
(other than Scheduled Payments), or (vi) any payment in respect of
amounts paid by the applicable Owner Trustee to the Trustee for
the purchase or redemption of Equipment Notes.
SPECIAL PAYMENTS ACCOUNT: means, with respect to the
Certificates of any series, the account or accounts created and
maintained for such series pursuant to Section 4.01(b) and the
related Trust Supplement.
SPECIFIED INVESTMENTS: means, with respect to any
Trust, unless otherwise specified in the related Trust Supplement,
(i) obligations of, or guaranteed by, the United States Government
or agencies thereof, (ii) open market commercial paper of any
corporation incorporated under the laws of the United States of
America or any state thereof rated at least P-2 or its equivalent
by ▇▇▇▇▇'▇ Investors Service, Inc. or at least A- 2 or its
equivalent by Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., (iii) certificates of deposit
issued by commercial banks organized under the laws of the United
States or of any political subdivision thereof having a combined
capital and surplus in excess of $100,000,000 which banks or their
holding companies have a rating of A or its equivalent by ▇▇▇▇▇'▇
Investors Service, Inc. or Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.; PROVIDED, HOWEVER,
that the aggregate amount at any one time so invested in
certificates of deposit issued by any one bank shall not exceed 5%
of such bank's capital and surplus, (iv) U.S. dollar-denominated
offshore certificates of deposit issued by, or offshore time
deposits with, any commercial bank described in clause (iii) above
or any subsidiary thereof and (v) repurchase agreements with any
financial institution having combined capital and surplus of at
least $100,000,000 with any of the obligations described in
clauses (i) through (iv) above as collateral; PROVIDED FURTHER
that if all of the above investments are unavailable, the entire
amounts to be invested may be used to purchase federal funds from
an entity described in clause (iii) above.
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SUBORDINATION AGENT: has the meaning specified
therefor in any Intercreditor Agreement.
SUBSTITUTE AIRCRAFT: means, with respect to any
Trust, any Aircraft of a type specified in this Agreement and, at
the election of the Company, substituted prior to the applicable
Cut-off Date, if any, pursuant to the terms of this Agreement.
TRANSFER DATE: has the meaning assigned to that term
or any of the terms "Delivery Date", "Funding Date" or "Closing
Date" in a Note Purchase Agreement or Participation Agreement, and
in any event refers to any such date as it may be changed from
time to time in accordance with the terms of such Note Purchase
Agreement or Participation Agreement.
TRIGGERING EVENT: has the meaning specified therefor
in any Intercreditor Agreement.
TRUST: means, with respect to the Certificates of
any series, the trust under this Agreement.
TRUSTEE: means The Bank of New York, or its
successor in interest, and any successor or other trustee
appointed as provided herein.
TRUST INDENTURE ACT: except as otherwise provided in
Section 9.06, means, with respect to any particular Trust, the
United States Trust Indenture Act of 1939, as in force at the date
as of which the related Trust Supplement was executed.
TRUST PROPERTY: means, with respect to any Trust,
(i) subject to any related Intercreditor Agreement, the Equipment
Notes held as the property of such Trust, all monies at any time
paid thereon and all monies due and to become due thereunder, (ii)
funds from time to time deposited in the related Escrow Account,
the related Certificate Account and the related Special Payments
Account and, subject to the related Intercreditor Agreement, any
proceeds from the sale by the Trustee pursuant to Article VI
hereof of any such Equipment Note, (iii) all rights of such Trust
and the Trustee, on behalf of the Trust, under any Intercreditor
Agreement, including, without limitation, all monies receivable in
respect of such rights, and (iv) all monies receivable under any
Liquidity Facility for such Trust.
TRUST SUPPLEMENT: means an agreement supplemental
hereto pursuant to which (i) a separate Trust is created for the
benefit of the Holders of the Certificates of a series, (ii) the
issuance of the Certificates of such series representing
fractional undivided interests in such Trust is authorized and
(iii) the terms of the Certificates of such series are
established.
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18
Section 1.02. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company, any Owner Trustee or any Loan Trustee to
the Trustee to take any action under any provision of this Basic Agreement or,
in respect of the Certificates of any series, this Agreement, the Company, such
Owner Trustee or such Loan Trustee, as the case may be, shall furnish to the
Trustee (i) an Officer's 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
(ii) an Opinion of Counsel stating that all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by
any provision of this Basic Agreement or this Agreement relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Basic Agreement or, in respect of the
Certificates of any series, this Agreement (other than a certificate provided
pursuant to Section 8.04(d)) or any Trust Supplement shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions in this Basic Agreement or this Agreement
relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of
each such individual, such condition or covenant has been
complied with.
Section 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters and any such Person may certify or give an opinion as to
such matters in one or several documents.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Basic
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Agreement or, in respect of the Certificates of any series, this Agreement, they
may, but need not, be consolidated and form one instrument.
Section 1.04. DIRECTIONS OF CERTIFICATEHOLDERS.
(a) Any direction, consent, request, demand, authorization,
notice, waiver or other action provided by this Agreement in respect of the
Certificates of any series to be given or taken by Certificateholders (a
"Direction") may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Certificateholders in person or by an
agent or proxy duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, when it is hereby expressly
required pursuant to this Agreement, to the Company or any Loan Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Certificateholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent or proxy shall be
sufficient for any purpose of this Trust Agreement and conclusive in favor of
the Trustee, the Company and the related Loan Trustee, if made in the manner
provided in this Section 1.04.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instrument acknowledged to him
the execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or such other officer, and where such execution is by
an officer of a corporation or association or a member of a partnership, on
behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable manner
which the Trustee deems sufficient.
(c) In determining whether the Certificateholders of the
requisite Fractional Undivided Interests of Certificates of any series
Outstanding have given any Direction under this Agreement, Certificates owned by
the Company or any Affiliate thereof shall be disregarded and deemed not to be
Outstanding for purposes of any such determination. In determining whether the
Trustee shall be protected in relying upon any such Direction, only Certificates
which the Trustee knows to be so owned shall be so disregarded. Notwithstanding
the foregoing, (i) if any such Person owns 100% of the Certificates of any
series Outstanding, such Certificates shall not be so disregarded, and (ii) if
any amount of Certificates of any series so owned by any such Person have been
pledged in good faith, such Certificates shall not be disregarded if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Certificates and that the pledgee is not the Company or any
Affiliate thereof.
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20
(d) The Company may, at its option, by delivery of an Officer's
Certificate to the Trustee, set a record date to determine the
Certificateholders in respect of the Certificates of any series entitled to give
any Direction. Notwithstanding Section 316(c) of the Trust Indenture Act, such
record date shall be the record date specified in such Officer's Certificate,
which shall be a date not more than 30 days prior to the first solicitation of
Certificateholders of the applicable series in connection therewith. If such a
record date is fixed, such Direction may be given before or after such record
date, but only the Certificateholders of record of the applicable series at the
close of business on such record date shall be deemed to be Certificateholders
for the purposes of determining whether Certificateholders of the requisite
proportion of Outstanding Certificates of such series have authorized or agreed
or consented to such Direction, and for that purpose the Outstanding
Certificates shall be computed as of such record date; provided, however, that
no such Direction by the Certificateholders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Agreement not later than one year after such record date.
(e) Any Direction by the Holder of any Certificate shall bind the
Holder of every Certificate issued upon the transfer thereof or in exchange
therefor or in lieu thereof, whether or not notation of such Direction is made
upon such Certificate.
(f) Except as otherwise provided in Section 1.04(c), Certificates
of any series owned by or pledged to any Person shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority or distinction as among all of the Certificates of such
series.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES:
ACQUISITION OF TRUST PROPERTY
Section 2.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
(a) The aggregate principal amount of Certificates which may be
authenticated and delivered under this Basic Agreement is unlimited. The
Certificates may be issued from time to time in one or more series and shall be
designated generally as the "Pass Through Certificates", with such further
designations added or incorporated in such title for the Certificates of each
series as 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
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21
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 3.06);
(4) the Cut-off Date with respect to the
Certificates of such series;
(5) the Regular Distribution Dates applicable to
the Certificates of such series;
(6) the Special Distribution Dates applicable to
the Certificates of such series;
(7) if other than as provided in Section 7.12(b),
the Registrar or the Paying Agent for the Certificates of such
series, including any Co-Registrar or additional Paying Agent;
(8) if other than as provided in Section 3.02, the
denominations in which the Certificates of such series shall be
issuable;
(9) if other than United States dollars, the
currency or currencies (including currency units) in which the
Certificates of such series shall be denominated;
(10) the specific form of the Certificates of such
series (including the interest rate applicable thereto) and
whether or not Certificates of such series are to be issued as
Book-Entry Certificates and, if such Certificates are to be
Book-Entry Certificates, the form of Letter of Representations,
if any (or, in the case of any Certificates denominated in a
currency other than United States dollars and if other than as
provided in Section 3.05, whether and the circumstances under
which beneficial owners of interests in such Certificates in
permanent global form may exchange such interests for
Certificates of such series and of like tenor of any authorized
form and denomination);
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(11) a description of the Equipment Notes to be
acquired and held in the related Trust and of the related
Aircraft and Note Documents;
(12) provisions with respect to the terms for which
the definitions set forth in Article I hereof or the terms of
Section 11.01 hereof permit or require further specification in
the related Trust Supplement;
(13) any restrictions (including legends) in
respect of ERISA;
(14) whether such series will be subject to an
Intercreditor Agreement and, if so, the specific designation of
such Intercreditor Agreement;
(15) whether such series will have the benefit of a
Liquidity Facility and, if so, the specific designation of such
Liquidity Facility;
(16) whether there will be a deposit agreement or
other comparable arrangement prior to the delivery of one or more
Aircraft and, if so, any terms appropriate thereto; and
(17) 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 of the
Certificates of such series which may be required or advisable
under United States laws or regulations or advisable in
connection with the marketing of Certificates of the series.
(c) At any time and from time to time after the execution and
delivery of this Basic Agreement and a Trust Supplement forming a Trust and
establishing the terms of Certificates of a series, Certificates of such series
shall be executed, authenticated and delivered by the Trustee to the Person or
Persons specified by the Company upon request of the Company and upon
satisfaction or waiver of any conditions precedent set forth in such Trust
Supplement.
Section 2.02. ACQUISITION OF EQUIPMENT NOTES.
(a) Unless otherwise specified in the related Trust Supplement,
on or prior to the Issuance Date of the Certificates of a series, the Trustee
shall execute and deliver the related Note Purchase Agreements and Participation
Agreements, if any, each in the form delivered to the Trustee by the Company and
shall, subject to the respective terms thereof, perform its obligations under
such Note Purchase Agreements and Participation Agreements, if any. The Trustee
shall issue and sell such Certificates, in authorized denominations and in such
Fractional Undivided Interests, so as to result in the receipt of consideration
in an amount equal to the aggregate purchase price of the Equipment Notes
contemplated to be purchased by the Trustee under the related Note Purchase
Agreements and Participation Agreements, if any, and, concurrently therewith,
the Trustee shall purchase, pursuant to the terms and conditions of the Note
Purchase Agreements and Participation Agreements, if any, such Equipment Notes
at an aggregate purchase price equal to the amount of such consideration so
received. Except as provided in Sections 3.03, 3.04 and 3.06 hereof, the Trustee
shall not execute, authenticate or deliver Certificates of such series in excess
of the aggregate amount specified in
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this paragraph. The provisions of this Subsection (a) are subject to the
provisions of Subsection (b) below.
(b) If on or prior to the Issuance Date with respect to a series
of Certificates the Company shall deliver to the Trustee a Postponement Notice
relating to one or more Postponed Notes, the Trustee shall postpone the purchase
of such Postponed Notes and shall deposit into an escrow account (as to such
Trust, the "Escrow Account") to be maintained as part of the related Trust an
amount equal to the purchase price of such Postponed Notes (the "Escrowed
Funds"). The portion of the Escrowed Funds so deposited with respect to any
particular Postponed Notes shall be invested 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 Postponed Notes 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 such Postponed Notes will not be issued, maturing on the next
applicable Special Distribution Date, if such investments are reasonably
available for purchase. The Trustee shall make withdrawals from the Escrow
Account only as provided in this Agreement. Upon request of the Company on one
or more occasions and the satisfaction or waiver of the closing conditions
specified in the applicable Note Purchase Agreements on or prior to the related
Cut-off Date, the Trustee shall purchase the applicable Postponed Notes 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
Responsible Party in Specified Investments maturing as provided in the preceding
paragraph.
Unless an Indenture Event of Default or an Event of Default has
occurred and is continuing, any earnings on Specified Investments received
from time to time by the Trustee shall be promptly distributed to the
Responsible Party. The Company shall pay, or cause the Responsible Party to 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, or cause the Responsible Party to pay (in immediately available funds), to
the Trustee an amount equal to the interest that would have accrued on any
Postponed Notes with respect to such Certificates, 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 not less than 15 days
following the date of such notice, (i) the Company shall pay, or cause the
Responsible Party to pay, to the Trustee for
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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 or the
Responsible Party pursuant to the immediately preceding clause (i) to the
related Special Payments Account for distribution as a Special Payment in
accordance with the provisions hereof.
If, on such Cut-off Date, an amount equal to less than all of the
Escrowed Funds (other than Escrowed Funds referred to in the immediately
preceding paragraph) has been used to purchase Postponed Notes, on the next such
Special Distribution Date occurring not less than 15 days following such Cut-off
Date (i) the Company shall pay, or cause the Responsible Party to pay, to the
Trustee for deposit in such Special Payments Account, in immediately available
funds, an amount equal to the interest that would have accrued on such Postponed
Notes contemplated to be purchased with such unused Escrowed Funds (other than
Escrowed Funds referred to in the immediately preceding paragraph) but not so
purchased at a rate equal to the interest rate applicable to such Certificates
from the Issuance Date to, but not including, such Special Distribution Date and
(ii) the Trustee shall transfer such unused Escrowed Funds and the amount paid
by the Company or the Responsible Party pursuant to the immediately preceding
clause (i) to such Special Payments Account for distribution as a Special
Payment in accordance with the provisions hereof.
Section 2.03. ACCEPTANCE BY TRUSTEE. The Trustee, 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 Trust Property to be acquired pursuant to Section 2.02
hereof and the related Note Purchase Agreements or Participation Agreements and
shall declare that the Trustee holds and will hold such right, title and
interest for the benefit of all then present and future Certificateholders of
such series, upon the trusts herein and in such Trust Supplement set forth. By
the acceptance of each Certificate of such series issued to it under this
Agreement, each initial Holder of such series as grantor of such Trust shall
thereby join in the creation and declaration of such Trust.
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, 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 any Aircraft (as defined
in the respective Indentures), by bidding such Equipment Notes or otherwise, or
taking any action with respect to any such Aircraft once acquired).
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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 placed thereon as may be required to comply
with the rules of any securities exchange on which such Certificates may be
listed or to conform to any usage in respect thereof, or as may, consistently
herewith, be determined by the Trustee or the officers executing such
Certificates, as evidenced by the Trustee's or respective officers' execution of
the Certificates.
Except as provided in Section 3.05, the definitive Certificates
of such series shall be typed, printed, lithographed or engraved or produced by
any combination of these methods or may be produced in any other manner
permitted by the rules of any securities exchange on which the Certificates may
be listed, all as determined by the officers executing such Certificates, as
evidenced by their execution of such Certificates.
Except as otherwise provided in the related Trust Supplement, the
Certificates of each series shall be issued in minimum denominations of $1,000
or integral multiples thereof except that one Certificate of such series may be
issued in a different denomination.
The Certificates of such series shall be executed on behalf of
the Trustee by manual or facsimile signature of a Responsible Officer of the
Trustee. Certificates of any series bearing the manual or facsimile signature of
an individual who was, at the time when such signature was affixed, authorized
to sign on behalf of the Trustee shall be valid and binding obligations of the
Trustee, notwithstanding that such individual has ceased to be so authorized
prior to the authentication and delivery of such Certificates or did not hold
such office at the date of such Certificates.
Section 3.02. AUTHENTICATION OF CERTIFICATES.
(a) On the Issuance Date, the Trustee shall duly execute,
authenticate and deliver Certificates of each series in authorized denominations
equalling in the aggregate the aggregate principal amount of the Equipment Notes
that may be purchased by the Trustee pursuant to the related Note Purchase
Agreements or Participation Agreements, and evidencing the entire ownership of
the related Trust. Thereafter, the Trustee shall duly execute, authenticate and
deliver the Certificates of such series as herein provided.
(b) No Certificate of any series shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication
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substantially in the form set forth in Exhibit A hereto executed by the Trustee
by manual signature, and such certificate of authentication upon any Certificate
shall be conclusive evidence, and the only evidence, that such Certificate has
been duly authenticated and delivered hereunder. All Certificates of any series
shall be dated the date of their authentication.
Section 3.03. TEMPORARY CERTIFICATES. Until definitive
Certificates are ready for delivery, the Trustee shall execute, authenticate and
deliver temporary Certificates of each series. Temporary Certificates of each
series shall be substantially in the form of definitive Certificates of such
series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the officers executing the temporary
Certificates of such series, as evidenced by their execution of such temporary
Certificates. If temporary Certificates of any series are issued, the Trustee
will cause definitive Certificates of such series to be prepared without
unreasonable delay. After the preparation of definitive Certificates of such
series, the temporary Certificates shall be exchangeable for definitive
Certificates upon surrender of such temporary Certificates at the office or
agency of the Trustee designated for such purpose pursuant to Section 7.12,
without charge to the Certificateholder. Upon surrender for cancellation of any
one or more temporary Certificates, the Trustee shall execute, authenticate and
deliver in exchange therefor a like face amount of definitive Certificates of
like series, in authorized denominations and of a like Fractional Undivided
Interest. Until so exchanged, such temporary Certificates shall be entitled to
the same benefits under this Agreement as definitive Certificates.
Section 3.04. TRANSFER AND EXCHANGE. The Trustee shall cause to
be kept at the office or agency to be maintained by it in accordance with the
provisions of Section 7.12 a register (the "Register") for each series of
Certificates in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of Certificates of
such series and of transfers and exchanges of such Certificates as herein
provided. The Trustee shall initially be the registrar (the "Registrar") for the
purpose of registering such Certificates of each series and transfers and
exchanges of such Certificates as herein provided.
All Certificates issued upon any registration of transfer or
exchange of Certificates of any series shall be valid obligations of the
applicable Trust, evidencing the same interest therein, and entitled to the same
benefits under this Agreement, as the Certificates of such series surrendered
upon such registration of transfer or exchange.
Upon surrender for registration of transfer of any Certificate at
the Corporate Trust Office or such other office or agency, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of like series, in authorized
denominations of a like aggregate Fractional Undivided Interest.
At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of like series, in authorized denominations and
of a like aggregate Fractional Undivided Interest, upon surrender of the
Certificates to be exchanged at any such office or agency. Whenever any
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Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate and deliver the Certificates that the Certificateholder making the
exchange is entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Registrar duly executed by the Certificateholder thereof or its attorney duly
authorized in writing.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Trustee shall
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates. All
Certificates surrendered for registration of transfer or exchange shall be
canceled and subsequently destroyed by the Trustee.
Section 3.05. 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 (d)
below. As to the Certificates of any series, unless and until definitive, fully
registered Certificates (the "Definitive Certificates") have been issued
pursuant to Subsection (d) below:
(i) the provisions of this Section 3.05 shall be
in full force and effect;
(ii) the Company, the Paying Agent, the Registrar
and the Trustee may deal with the Clearing Agency Participants
for all purposes (including the making of distributions on the
Certificates) as the authorized representatives of the
Certificate Owners;
(iii) to the extent that the provisions of this
Section 3.05 conflict with any other provisions of this Agreement
(other than the provisions of any Trust Supplement expressly
amending this Section 3.05 as permitted by this Basic Agreement),
the provisions of this Section 3.05 shall control;
(iv) the rights of Certificate Owners shall be
exercised only through the Clearing Agency and shall be limited
to those established by law and agreements between such
Certificate Owners and the Clearing Agency Participants; and
until Definitive Certificates are issued pursuant to Subsection
(d) below, the Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and transmit
distributions
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of principal, 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 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 (d)
below, the Trustee shall give all such notices and communications specified
herein to be given to Certificateholders of such series to the Clearing Agency.
(c) Unless and until Definitive Certificates of a series are
issued pursuant to Subsection (d) below, on the Record Date prior to each
applicable Regular Distribution Date and Special Distribution Date, the Trustee
will request from the Clearing Agency a securities position listing setting
forth the names of all Clearing Agency Participants reflected on the Clearing
Agency's books as holding interests in the Certificates on such Record Date.
(d) If with respect to the Certificates of any series (i) the
Company advises the Trustee in writing that the Clearing Agency is no longer
willing or able to discharge properly its responsibilities and the Trustee or
the Company is unable to locate a qualified successor, (ii) the Company, at its
option, advises the Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (iii) after the occurrence of
an Event of Default, Certificate Owners of Book-Entry Certificates of such
series evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in the related Trust, by Act of such Certificate Owners
delivered to the Company and the Trustee, advise the Company, the Trustee and
the Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency Participants is
no longer in the best interests of the Certificate Owners of such series, then
the Trustee shall notify all Certificate Owners of such series, through the
Clearing Agency, of the occurrence of any such event and of the availability of
Definitive Certificates. Upon surrender to the Trustee of all the Certificates
of such series held by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency Participants for registration of
Definitive Certificates in the names of Certificate Owners of such series, the
Trustee shall issue and deliver the Definitive Certificates of such series in
accordance with the instructions of the Clearing Agency. Neither the Company,
the Registrar, the Paying Agent nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such registration
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instructions. Upon the issuance of Definitive Certificates of such series, the
Trustee shall recognize the Person in whose name the Definitive Certificates are
registered in the Register as Certificateholders hereunder. Neither the Company
nor the Trustee shall be liable if the Trustee or the Company is unable to
locate a qualified successor Clearing Agency.
(e) Except as otherwise provided in the related Trust Supplement,
the Trustee shall enter into the applicable Letter of Representations with
respect to such series of Certificates and fulfill its responsibilities
thereunder.
(f) The provisions of this Section 3.05 may be made inapplicable
to any series or may be amended with respect to any series in the related Trust
Supplement.
Section 3.06. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (a) any mutilated Certificate is surrendered to the Registrar, or the
Registrar receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate, and (b) there is delivered to the Registrar and the
Trustee such security, indemnity or bond, as may be required by them to save
each of them harmless, then, in the absence of notice to the Registrar or the
Trustee that such destroyed, lost or stolen Certificate has been acquired by a
protected purchaser, and PROVIDED, HOWEVER, that the requirements of Section
8-405 of the Uniform Commercial Code in effect in any applicable jurisdiction
are met, the Trustee shall execute, authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate or Certificates of like series, in authorized denominations and of
like Fractional Undivided Interest and bearing a number not contemporaneously
outstanding.
In connection with the issuance of any new Certificate under this
Section 3.06, the Trustee shall require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee and the
Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section 3.06
shall constitute conclusive evidence of the appropriate Fractional Undivided
Interest in the related Trust, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
The provisions of this Section 3.06 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.07. PERSONS DEEMED OWNERS. Prior to due presentment of
a Certificate for registration of transfer, the Trustee, the Registrar and any
Paying Agent may treat the Person in whose name any Certificate is registered
(as of the day of determination) as the owner of such Certificate for the
purpose of receiving distributions pursuant to Article IV and for all other
purposes whatsoever, and none of the Trustee, the Registrar or any Paying Agent
shall be affected by any notice to the contrary.
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Section 3.08. CANCELLATION. All Certificates surrendered for
payment or transfer or exchange shall, if surrendered to the Trustee or any
agent of the Trustee other than the Registrar, be delivered to the Registrar for
cancellation and shall promptly be canceled by it. No Certificates shall be
authenticated in lieu of or in exchange for any Certificates canceled as
provided in this Section 3.08, 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 3.09. LIMITATION OF LIABILITY FOR PAYMENTS. All payments
and distributions made to Certificateholders of any series in respect of the
Certificates of such series shall be made only from the Trust Property of the
related Trust and only to the extent that the Trustee shall have sufficient
income or proceeds from such Trust Property to make such payments in accordance
with the terms of Article IV of this Agreement. Each Certificateholder, by its
acceptance of a Certificate, agrees that it will look solely to the income and
proceeds from the Trust Property of the related Trust for any payment or
distribution due to such Certificateholder pursuant to the terms of this
Agreement and that it will not have any recourse to the Company, the Trustee,
the Loan Trustees, the Owner Trustees or the Owner Participants, except as
otherwise expressly provided herein or in the related Intercreditor Agreement.
The Company is a party to this Agreement solely for purposes of
meeting the requirements of the Trust Indenture Act, and therefore shall not
have any right, obligation or liability hereunder (except as otherwise expressly
provided herein).
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. CERTIFICATE ACCOUNT AND SPECIAL PAYMENTS ACCOUNT.
(a) The Trustee shall establish and maintain on behalf of the
Certificateholders of each series a Certificate Account as one or more
non-interest-bearing accounts. The Trustee shall hold such Certificate Account
in trust for the benefit of the Certificateholders of such series, and shall
make or permit withdrawals therefrom only as provided in this Agreement. On each
day when a Scheduled Payment is made to the Trustee (under an Intercreditor
Agreement, if applicable) with respect to the Certificates of such series, the
Trustee, upon receipt thereof, shall immediately deposit the aggregate amount of
such Scheduled Payment in such 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
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are made to the Trustee (under an Intercreditor Agreement, if applicable) with
respect to the Certificates of such series, the Trustee, upon receipt thereof,
shall immediately deposit the aggregate amount of such Special Payments in such
Special Payments Account.
(c) The Trustee shall present (or, if applicable, cause the
Subordination Agent to present) to the related Loan Trustee of each Equipment
Note 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
related 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 all or any part of the Scheduled Payments due on the Equipment Notes
held (subject to the Intercreditor Agreement) 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 Fractional Undivided Interest
in the Trust held by such Certificateholder) of the total amount in the
applicable Certificate Account, except that, with respect to Certificates
registered on the Record Date in the name of a Clearing Agency (or its nominee),
such distribution shall be made by wire transfer in immediately available funds
to the account designated by such Clearing Agency (or such nominee).
(b) On each Special Distribution Date with respect to any Special
Payment with respect to a series of Certificates or as soon thereafter as the
Trustee has confirmed receipt of any Special Payments due on the Equipment Notes
held (subject to the Intercreditor Agreement) in the related Trust or realized
upon the sale of such Equipment Notes, the Trustee shall distribute out of the
applicable Special Payments Account the entire amount of such applicable Special
Payment deposited therein pursuant to Section 4.01(b). There shall be so
distributed to each Certificateholder of record of such series on the Record
Date with respect to such Special Distribution Date (other than as provided in
Section 11.01 concerning the final distribution) by check mailed to such
Certificateholder, at the address appearing in the Register, such
Certificateholder's pro rata share (based on the Fractional Undivided Interest
in the related Trust held by such Certificateholder) of the total amount in the
applicable Special Payments Account on account of such Special Payment, except
that, with respect to Certificates registered on the Record Date in the name of
a Clearing Agency (or its nominee), such distribution shall be made by wire
transfer in immediately available funds to the account designated by such
Clearing Agency (or such nominee).
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(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 15 days prior to
the Special Distribution Date for the Special Payment resulting from such
redemption or purchase, which Special Distribution Date shall be the date of
such redemption or purchase. In the event that the Trustee receives a notice
from the Company that Postponed Notes will not be purchased by the Trustee
pursuant to Section 2.02, such notice of Special Payment shall be mailed as soon
as practicable after receipt of such notice from the Company and shall state the
Special Distribution Date for such Special Payment, which shall occur 15 days
after the date of such notice of Special Payment or (if such 15th day is not
practicable) as soon as practicable thereafter. In the event that any Special
Payment is to be made pursuant to the last paragraph of Section 2.02(b) hereof,
there shall be mailed on the Cut-off Date (or, if such mailing on the Cutoff
Date is not practicable, as soon as practicable after the Cut-off Date), notice
of such Special Payment stating the Special Distribution Date for such Special
Payment, which shall occur 15 days after the date of such notice of such Special
Payment (or, if such 15th day is not practicable, as soon as practicable
thereafter). In the case of any other Special Payments, such notice shall be
mailed as soon as practicable after the Trustee has confirmed that it has
received funds for such Special Payment, stating the Special Distribution Date
for such Special Payment which shall occur not less than 15 days after the date
of such notice and as soon as practicable thereafter.
Notices mailed by the Trustee shall set forth:
(i) the Special Distribution Date and the Record
Date therefor (except as otherwise provided in Section 11.01),
(ii) the amount of the Special Payment (taking
into account any payment to be made by the Company pursuant to
Section 2.02(b)) for each $1,000 face amount Certificate and the
amount thereof constituting principal, premium, if any, and
interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same
date as a Regular Distribution Date for the Certificates of such
series, the total amount to be received on such date for each
$1,000 face amount Certificate.
If the amount of premium, if any, payable upon the redemption or purchase of an
Equipment Note has not been calculated at the time that the Trustee mails notice
of a Special Payment, it shall be sufficient if the notice sets forth the other
amounts to be distributed and states that any premium received will also be
distributed.
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.
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Section 4.03. STATEMENTS TO CERTIFICATEHOLDERS.
(a) On each Regular Distribution Date and Special Distribution
Date, the Trustee will include with each distribution of a Scheduled Payment or
Special Payment, as the case may be, to Certificateholders of the related series
a statement setting forth the information provided below. Such statement shall
set forth (per $1,000 aggregate principal amount of Certificate as to (i) and
(ii) below) the following information:
(i) the amount of such distribution hereunder
allocable to principal and the amount allocable to premium, if
any;
(ii) the amount of such distribution hereunder
allocable to interest; and
(iii) the Pool Balance and the Pool Factor of the
related Trust.
With respect to the Certificates registered in the name of a
Clearing Agency or its nominee, on the Record Date prior to each Regular
Distribution Date and Special Distribution Date, the Trustee will request from
the Clearing Agency a securities position listing setting forth the names of all
the Clearing Agency Participants reflected on the Clearing Agency's books as
holding interests in the Certificates on such Record Date. On each 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.
(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) above with respect to the
related Trust for such calendar year or, in the event such Person was a
Certificateholder of record during a portion of such calendar year, for the
applicable portion of such year, and such other items as are readily available
to the Trustee and which a Certificateholder shall reasonably request as
necessary for the purpose of such Certificateholder's preparation of its federal
income tax returns. With respect to Certificates registered in the name of a
Clearing Agency or its nominee, such statement and such other items shall be
prepared on the basis of information supplied to the Trustee by the Clearing
Agency Participants and shall be delivered by the Trustee to such Clearing
Agency Participants to be available for forwarding by such Clearing Agency
Participants to the holders of interests in the Certificates in the manner
described in Section 4.03(a).
Section 4.04. INVESTMENT OF SPECIAL PAYMENT MONEYS. Any money
received by the Trustee pursuant to Section 4.01(b) representing a Special
Payment which is not distributed on the date received shall, to the extent
practicable, be invested in Permitted Investments by the Trustee pending
distribution of such Special Payment pursuant to Section
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4.02. Any investment made pursuant to this Section 4.04 shall be in such
Permitted Investments having maturities not later than the date that such moneys
are required to be used to make the payment required under Section 4.02 on the
applicable Special Distribution Date and the Trustee shall hold any such
Permitted Investments until maturity. The Trustee shall have no liability with
respect to any investment made pursuant to this Section 4.04, other than by
reason of the willful misconduct or negligence of the Trustee. All income and
earnings from such investments shall be distributed on such Special Distribution
Date as part of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01. MAINTENANCE OF CORPORATE EXISTENCE. The Company, at
its own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises, except as otherwise specifically permitted in Section 5.02;
PROVIDED, HOWEVER, that the Company shall not be required to preserve any right
or franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
Section 5.02. CONSOLIDATION, MERGER, ETC. The Company shall not
consolidate with or merge into any other corporation or convey, transfer or
lease substantially all of its assets as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person that acquires by conveyance, transfer or
lease substantially all of the assets of the Company as an entirety shall (i) be
organized and validly existing under the laws of the United States of America or
any state thereof or the District of Columbia, and (ii) be a "citizen of the
United States" as defined in 49 U.S.C. ss. 40102(a)(15), as amended, holding an
air carrier operating certificate issued by the Secretary of Transportation
pursuant to Chapter 447 of 49 U.S.C., if and so long as such status is a
condition of entitlement to the benefits of Section 1110 of the Bankruptcy
Reform Act of 1978, as amended (11 U.S.C. ss. 1110), with respect to the Leases
or the Aircraft owned by the Company; and
(b) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance, transfer or
lease substantially all of the assets of the Company as an entirety shall
execute and deliver to the Trustee applicable to the Certificates of each series
a duly authorized, valid, binding and enforceable agreement in form and
substance reasonably satisfactory to the Trustee containing an assumption by
such successor corporation or Person of the due and punctual performance and
observance of each covenant and condition of the Note Documents and of this
Agreement applicable to the Certificates of each series to be performed or
observed by the Company.
(c) the Company shall have delivered to the Trustee an Officer's
Certificate of the Company and an Opinion or Opinions of Counsel of the Company
each stating that such consolidation, merger, conveyance, transfer or lease and
the assumption
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agreement mentioned in clause (b) above comply with this Section 5.02 and that
all conditions precedent herein provided for relating to such transaction have
been complied with.
Upon any consolidation or merger, or any conveyance, transfer or
lease of substantially all of the assets of the Company as an entirety in
accordance with this Section 5.02, the successor corporation or Person formed by
such consolidation or into which the Company is merged or to which such
conveyance, 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 any successor corporation or
Person which shall have become such in the manner prescribed in this Section
5.02 from its liability in respect of this Agreement and any Note Document
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 Event of Default under any Indenture, the Trustee
may (i) to the extent it is the Controlling Party at such time (as determined
pursuant to the related Intercreditor Agreement), direct the exercise of
remedies as provided in such related Intercreditor Agreement and (ii) if there
is no related Intercreditor Agreement, direct the exercise of remedies or take
other action as provided in the relevant Indenture to the extent that it may do
so as the holder of the Equipment Notes issued under such Indenture and held in
the related Trust.
(b) PURCHASE RIGHTS OF CERTIFICATEHOLDERS. At any time after the
occurrence and during the continuation of a Triggering Event, each
Certificateholder of Certificates of certain series (each, a "Potential
Purchaser" and, collectively, the "Potential Purchasers") will have certain
rights to purchase the Certificates of one or more other series, all as set
forth in the Trust Supplement applicable to the Certificates held by such
Potential Purchaser. The purchase price with respect to the Certificates of any
series 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 of such series under this Agreement, any related
Intercreditor Agreement or any other Note Document or on or in respect of the
Certificates of such series; PROVIDED, HOWEVER, that if such purchase occurs
after a Record Date, such purchase price shall be reduced by the amount to be
distributed hereunder on the related Distribution Date
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(which deducted amounts shall remain distributable to, and may be retained by,
the Certificateholder as of such Record Date); PROVIDED, FURTHER, that no such
purchase of Certificates of such series shall be effective unless the purchasing
Certificateholder (each, a "Purchasing Certificateholder" and, collectively, the
"Purchasing Certificateholders") shall certify to the Trustee that
contemporaneously with such purchase, one or more Purchasing Certificateholders
are purchasing, pursuant to the terms of this Agreement and the other
Agreements, if any, relating to the Certificates of a series that are subject to
the same Intercreditor Agreement (such other Agreements, the "Other
Agreements"), the Certificates of each such series that the Trust Supplement
applicable to the Certificates held by the Purchasing Certificateholder
specifies may be purchased by such Purchasing Certificateholder. Each payment of
the purchase price of the Certificates of any series shall be made to an account
or accounts designated by the Trustee and each such purchase shall be subject to
the terms of this Section 6.01. By acceptance of its Certificate, each
Certificateholder (each, a "Selling Certificateholder" and, collectively, the
"Selling Certificateholders") of a series that is subject to purchase by
Potential Purchasers, all as set forth in the Trust Supplement applicable to the
Certificates held by the Selling Certificateholders, agrees that, at any time
after the occurrence and during the continuance of a Triggering Event, it will,
upon payment of the purchase price specified herein by one or more Purchasing
Certificateholders, forthwith sell, assign, transfer and convey to such
Purchasing Certificateholder (without recourse, representation or warranty of
any kind except for its own acts), all of the right, title, interest and
obligation of such Selling Certificateholder in this Agreement, any related
Intercreditor Agreement, the related Liquidity Facility, the related Note
Documents and all Certificates of such series held by such Selling
Certificateholder (excluding all right, title and interest under any of the
foregoing to the extent such right, title or interest is with respect to an
obligation not then due and payable as respects any action or inaction or state
of affairs occurring prior to such sale) and the Purchasing Certificateholder
shall assume all of such Selling Certificateholder's obligations under this
Agreement, any related Intercreditor Agreement, the related Liquidity Facility
and the related Note Documents. The Certificates of such series will be deemed
to be purchased on the date payment of the purchase price is made
notwithstanding the failure of any Selling Certificateholder to deliver any
Certificates of such series and, upon such a purchase, (i) the only rights of
the Selling Certificateholders will be to deliver the Certificates to the
Purchasing Certificateholder and receive the purchase price for such
Certificates of such series and (ii) if the Purchasing Certificateholder shall
so request, such Selling Certificateholder will comply with all of the
provisions of Section 3.04 hereof to enable new Certificates of such series to
be issued to the Purchasing Certificateholder in such denominations as it shall
request. All charges and expenses in connection with the issuance of any such
new Certificates shall be borne by the Purchasing Certificateholder.
Section 6.02. INCIDENTS OF SALE OF EQUIPMENT NOTES. Upon any sale
of all or any part of the Equipment Notes held in the Trust made either under
the power of sale given under this Agreement or otherwise for the enforcement of
this Agreement, the following shall be applicable:
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(a) CERTIFICATEHOLDERS AND TRUSTEE MAY PURCHASE
EQUIPMENT NOTES. Any Certificateholder, the Trustee in its
individual or any other capacity or any other Person may bid for
and purchase any of the Equipment Notes held in the Trust, and
upon compliance with the terms of sale, may hold, retain, possess
and dispose of such Equipment Notes in their own absolute right
without further accountability.
(b) RECEIPT OF TRUSTEE SHALL DISCHARGE PURCHASER.
The receipt of the Trustee 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.
(c) APPLICATION OF MONEYS RECEIVED UPON SALE. Any
moneys collected by the Trustee upon any sale made either under
the power of sale given by this Agreement or otherwise for the
enforcement of this Agreement shall be applied as provided in
Section 4.02.
Section 6.03. JUDICIAL PROCEEDINGS INSTITUTED BY TRUSTEE; TRUSTEE
MAY BRING SUIT. If there shall be a failure to make payment of the principal of,
premium, if any, or interest on any Equipment Note held in the related Trust, or
if there shall be any failure to pay Rent (as defined in the relevant Lease)
under any Lease when due and payable, then the Trustee, in its own name and as
trustee of an express trust, as holder of such Equipment Notes, to the extent
permitted by and in accordance with the terms of any related Intercreditor
Agreement and any related Note Documents (subject to rights of the applicable
Owner Trustee or Owner Participant to cure any such failure to pay principal of,
premium, if any, or interest on any Equipment Note or to pay Rent under any
Lease in accordance with the applicable Indenture), 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 related Intercreditor Agreement, the Certificateholders holding
Certificates of a series evidencing Fractional Undivided Interests aggregating
not less than a majority in interest in the related Trust shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee with respect to such Trust or pursuant to the terms of
such Intercreditor Agreement, or exercising any trust or power conferred on the
Trustee under this Agreement or such Intercreditor Agreement, including any
right of the Trustee as Controlling Party under such Intercreditor Agreement or
as holder of the Equipment Notes held in the related Trust; PROVIDED, HOWEVER,
that
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(a) 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,
(b) the Trustee shall not determine that the action
so directed would be unjustly prejudicial to the
Certificateholders of such series not taking part in such
Direction, and
(c) 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 related
Intercreditor Agreement, the Certificateholders holding Certificates of a series
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Trust (i) may on behalf of all of the Certificateholders
waive any past Event of Default hereunder and its consequences or (ii) if the
Trustee is the Controlling Party, may direct the Trustee to instruct the
applicable Loan Trustee to waive any past Indenture Event of Default under any
related Indenture and its consequences, and thereby annul any Direction given by
such Certificateholders or the Trustee to such Loan Trustee with respect
thereto, except a default:
(1) in the deposit of any Scheduled Payment or
Special Payment under Section 4.01 or in the distribution of any
payment under Section 4.02 on the Certificates of a series, or
(2) in the payment of the principal of (premium, if
any) or interest on the Equipment Notes held in the related
Trust, or
(3) in respect of a covenant or provision hereof
which under Article IX hereof cannot be modified or amended
without the consent of each Certificateholder holding an
Outstanding Certificate of a series affected thereby.
Upon any such waiver, such default shall cease to exist with respect to the
Certificates of such series and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose and any direction given by the
Trustee on behalf of the Certificateholders of such series to the relevant Loan
Trustee shall be annulled with respect thereto; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon. Upon any such waiver, the Trustee shall vote the Equipment
Notes issued under the relevant Indenture to waive the corresponding Indenture
Event of Default.
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 related
Intercreditor Agreement, the right of any Certificateholder to receive
distributions of payments required pursuant to Section 4.02 hereof on the
applicable Certificates when due, or to institute suit for the enforcement of
any
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such payment on or after the applicable Regular Distribution Date or Special
Distribution Date, shall not be impaired or affected without the consent of such
Certificateholder.
Section 6.07. CERTIFICATEHOLDERS MAY NOT BRING SUIT EXCEPT UNDER
CERTAIN CONDITIONS. A Certificateholder of any series shall not have the right
to institute any suit, action or proceeding at law or in equity or otherwise
with respect to this Agreement, for the appointment of a receiver or for the
enforcement of any other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have
given written notice to the Trustee of a continuing Event of
Default;
(2) Certificateholders holding Certificates of such
series evidencing Fractional Undivided Interests aggregating not
less than 25% of the related Trust shall have requested the
Trustee in writing to institute such action, suit or proceeding
and shall have offered to the Trustee indemnity as provided in
Section 7.03(e);
(3) the Trustee shall have refused or neglected to
institute any such action, suit or proceeding for 60 days after
receipt of such notice, request and offer of indemnity; and
(4) no direction inconsistent with such written
request shall have been given to the Trustee during such 60-day
period by Certificateholders holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not less
than a majority in interest in the related Trust.
It is understood and intended that no one or more of the
Certificateholders of any series shall have any right in any manner whatsoever
hereunder or under the related Trust Supplement or under the Certificates of
such series to (i) surrender, impair, waive, affect, disturb or prejudice any
property in the Trust Property of the related Trust, or the lien of any related
Indenture on any property subject thereto, or the rights of the
Certificateholders of such series or the holders of the related Equipment Notes,
(ii) obtain or seek to obtain priority over or preference with respect to any
other such Certificateholder of such series or (iii) enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all the Certificateholders of such series subject to the
provisions of this Agreement.
Section 6.08. REMEDIES CUMULATIVE. Every remedy given hereunder
to the Trustee or to any of the Certificateholders of any series shall not be
exclusive of any other remedy or remedies, and every such remedy shall be
cumulative and in addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise.
Section 6.09. UNDERTAKING FOR COSTS. In any suit for the
enforcement of any right or remedy under this Agreement, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an
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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, HOWEVER, that neither this Section 6.09 nor the Trust Indenture
Act shall be deemed to authorize any court to require such an undertaking or to
make such an assessment in any suit instituted by the Company.
ARTICLE VII
THE TRUSTEE
Section 7.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default in
respect of a Trust, the Trustee undertakes to perform such duties in respect of
such Trust as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement against the Trustee.
(b) In case an Event of Default in respect of a Trust has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Agreement in respect of such Trust, and use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(c) No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit
the effect of Subsection (a)of this Section 7.01; and
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts.
(d) Whether or not herein expressly so provided, every provision
of this Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 7.01.
Section 7.02. NOTICE OF DEFAULTS. As promptly as practicable
after, and in any event within 90 days after, the occurrence of any default (as
such term is defined below) hereunder known to the Trustee, the Trustee shall
transmit by mail to the Company, any related Owner Trustees, any related Owner
Participants, the related Loan Trustees and the Certificateholders holding
Certificates of the related series in accordance with Section 313(c) of the
Trust Indenture Act, notice of such default hereunder known to the Trustee,
unless such
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default shall have been cured or waived; PROVIDED, HOWEVER, that, except in the
case of a default in the payment of the principal, premium, if any, or interest
on any Equipment Note, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
shall determine that the withholding of such notice is in the interests of the
Certificateholders of the related series. For the purpose of this Section 7.02
in respect of any Trust, the term "Default" means any event that is, or after
notice or lapse of time or both would become, an Event of Default in respect of
that Trust.
Section 7.03. CERTAIN RIGHTS OF TRUSTEE. Subject to the
provisions of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Request;
(c) whenever in the administration of this Agreement or any
Intercreditor Agreement, the Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officer's Certificate
of the Company, any related Owner Trustee or any related Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement or any Intercreditor
Agreement at the Direction of any of the Certificateholders pursuant to this
Agreement or any Intercreditor Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity against the cost,
expenses and liabilities which might be incurred by it in compliance with such
Direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document;
(g) the Trustee may execute any of the trusts or powers under
this Agreement or any Intercreditor Agreement or perform any duties under this
Agreement or any Intercreditor Agreement either directly or by or through agents
or attorneys, and the Trustee shall not be
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responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it under this Agreement or any Intercreditor
Agreement;
(h) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
Direction of the Certificateholders holding Certificates of any series
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the related Trust relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Agreement or any
Intercreditor Agreement; and
(i) the Trustee shall not be required to expend or risk its own
funds in the performance of any of its duties under this Agreement, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
is not reasonably assured to it.
Section 7.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
CERTIFICATES. The recitals contained herein and in the Certificates of each
series, except the certificates of authentication, shall not be taken as the
statements of the Trustee, and the Trustee assumes no responsibility for their
correctness. Subject to Section 7.15, the Trustee makes no representations as to
the validity or sufficiency of this Basic Agreement, any Equipment Notes, any
Intercreditor Agreement, the Certificates of any series, any Trust Supplement or
any Note Documents, except that the Trustee hereby represents and warrants that
this Basic Agreement has been, and each Trust Supplement, each Certificate, each
Note Purchase Agreement, each Participation Agreement and each Intercreditor
Agreement of, or relating to, each series will be executed and delivered by one
of its officers who is duly authorized to execute and deliver such document on
its behalf.
Section 7.05. MAY HOLD CERTIFICATES. The Trustee, any Paying
Agent, Registrar or any of their Affiliates or any other agent, in their
respective individual or any other capacity, may become the owner or pledgee of
Certificates and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
if applicable, may otherwise deal with the Company, any Owner Trustees or the
Loan Trustees with the same rights it would have if it were not Trustee, Paying
Agent, Registrar or such other agent.
Section 7.06. MONEY HELD IN TRUST. Money held by the Trustee or
the Paying Agent in trust under this Agreement need not be segregated from other
funds except to the extent required herein or by law and neither the Trustee nor
the Paying Agent shall have any liability for interest upon any such moneys
except as provided for herein.
Section 7.07. 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
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limited by any provision of law in regard to the compensation of
a trustee of an express trust); and
(2) except as otherwise expressly provided herein
or in any Trust Supplement, to reimburse, or cause to be
reimbursed, the Trustee upon its request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this
Basic Agreement, any Trust Supplement or any Intercreditor
Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to 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 7.15; and
(3) to indemnify, or cause to be indemnified, the
Trustee with respect to the Certificates of any series, pursuant
to the particular sections of the Note Purchase Agreements or
Participation Agreement specified in the related Trust
Supplement.
The Trustee shall be entitled to reimbursement from, and shall
have a lien prior to the Certificates of each series upon, all property and
funds held or collected by the Trustee in its capacity as Trustee with respect
to such series or the related Trust for any tax incurred without negligence, bad
faith or willful misconduct, on its part, arising out of or in connection with
the acceptance or administration of such Trust (other than any tax attributable
to the Trustee's compensation for serving as such), including any costs and
expenses incurred in contesting the imposition of any such tax. The Trustee
shall notify the Company of any claim for any tax for which it may seek
reimbursement. If the Trustee reimburses itself from the Trust Property of such
Trust for any such tax, it will mail a brief report within 30 days setting forth
the amount of such tax and the circumstances thereof to all Certificateholders
of such series as their names and addresses appear in the Register.
Section 7.08. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. Each Trust
shall at all times have a Trustee which shall be eligible to act as a trustee
under Section 310(a) of the Trust Indenture Act and shall have a combined
capital and surplus of at least $75,000,000 (or a combined capital and surplus
in excess of $5,000,000 and the obligations of which, whether now in existence
or hereafter incurred, are fully and unconditionally guaranteed by a corporation
organized and doing business under the laws of the United States, any state or
territory thereof or of the District of Columbia and having a combined capital
and surplus of at least $75,000,000). If such corporation publishes reports of
conditions at least annually, pursuant to law or to the requirements of federal,
state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section 7.08 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.
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In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.08 to act as Trustee of any
Trust, the Trustee shall resign immediately as Trustee of such Trust in the
manner and with the effect specified in Section 7.09.
Section 7.09. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee of any Trust pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 7.10.
(b) The Trustee may resign at any time as Trustee of any or all
Trusts by giving prior written notice thereof to the Company, the Authorized
Agents, the related Owner Trustees and the related Loan Trustees. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Company, the related Owner Trustees and the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Direction of the
Certificateholders of the related series holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in such Trust delivered to the Trustee and to the Company, the related Owner
Trustees and the related Loan Trustees.
(d) If at any time in respect of any Trust:
(1) the Trustee shall fail to comply with Section
310 of the Trust Indenture Act, if applicable, after written
request therefor by the Company or by any Certificateholder who
has been a bona fide holder of Certificates for at least six
months; or
(2) the Trustee shall cease to be eligible under
Section 7.08 and shall fail to resign after written request
therefor by the Company or by any such Certificateholder; or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation; then, in any case, (i) the Company
may remove the Trustee or (ii) any Certificateholder of the
related series who has been a bona fide holder of Certificates
for at least six months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
Trustee of such Trust.
(e) If a Responsible Officer of the Trustee shall obtain actual
knowledge of an Avoidable Tax (as defined below) in respect of any Trust which
has been or is likely to be asserted, the Trustee shall promptly notify the
Company and shall, within 30 days of such notification, resign
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as Trustee of such Trust hereunder unless within such 30-day period the Trustee
shall have received notice that the Company has agreed to pay such tax. The
Company shall promptly appoint a successor Trustee of such Trust in a
jurisdiction where there are no Avoidable Taxes. As used herein, an "Avoidable
Tax" in respect of such Trust means a state or local tax: (i) upon (w) such
Trust, (x) such Trust Property, (y) Certificateholders of such Trust or (z) the
Trustee for which the Trustee is entitled to seek reimbursement from the Trust
Property of such Trust, and (ii) which would be avoided if the Trustee were
located in another state, or jurisdiction within a state, within the United
States of America. A tax shall not be an Avoidable Tax in respect of any Trust
if the Company or any Owner Trustee shall agree to pay, and shall pay, such tax.
(f) If the Trustee shall resign, be removed or become incapable
of acting as Trustee of any Trust or if a vacancy shall occur in the office of
the Trustee of any Trust for any cause, the Company shall promptly appoint a
successor Trustee of such Trust. If, within one year after such resignation,
removal or incapability, or other occurrence of such vacancy, a successor
Trustee of such Trust shall be appointed by Direction of the Certificateholders
of the related series holding Certificates of such series evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in such
Trust delivered to the Company, the related Owner Trustees, the related Loan
Trustee and the retiring Trustee, then the successor Trustee of such Trust so
appointed shall, with the approval of the Company of such appointment, which
approval shall not be unreasonably withheld, forthwith upon its acceptance of
such appointment, become the successor Trustee of such Trust and supersede the
successor Trustee of such Trust appointed 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 holder of Certificates of the related
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee of such Trust.
(g) The successor Trustee of a Trust shall give notice of the
resignation and removal of the Trustee and appointment of the successor Trustee
by mailing written notice of such event by first-class mail, postage prepaid, to
the Certificateholders of the related series as their names and addresses appear
in the Register. Each notice shall include the name of such successor Trustee
and the address of its Corporate Trust Office.
Section 7.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every
successor Trustee appointed hereunder shall execute and deliver to the Company
and to the retiring Trustee with respect to any or all Trusts an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee with respect to such 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 Trust Property held
by such retiring Trustee in respect of such Trusts hereunder, subject
nevertheless to its lien, if any,
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provided for in Section 7.07. Upon request of any such successor Trustee, the
Company, the retiring Trustee and such successor Trustee shall execute and
deliver any and all instruments containing such provisions as shall be necessary
or desirable to transfer and confirm to, and for more fully and certainly
vesting in, such successor Trustee all such rights, powers and trusts.
If a successor Trustee is appointed with respect to one or more
(but not all) Trusts, the Company, the predecessor Trustee and each successor
Trustee with respect to any Trust shall execute and deliver a supplemental
agreement hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the predecessor Trustee with respect to the Trusts as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Basic Agreement and the applicable Trust Supplements as shall be necessary to
provide for or facilitate the administration of the Trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental agreement shall constitute such Trustees as co-Trustees of the same
Trust and that each such Trustee shall be Trustee of separate Trusts.
No institution shall accept its appointment as a Trustee
hereunder unless at the time of such acceptance such institution shall be
qualified and eligible under this Article VII.
Section 7.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder;
PROVIDED, HOWEVER, that such corporation shall be otherwise qualified and
eligible under this Article VII, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any
Certificates shall have been executed or authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or consolidation
to such authenticating Trustee may adopt such execution or authentication and
deliver the Certificates so executed or authenticated with the same effect as if
such successor Trustee had itself executed or authenticated such Certificates.
Section 7.12. MAINTENANCE OF AGENCIES. (a) With respect to each
series of Certificates, there shall at all times be maintained an office or
agency in the location set forth in Section 12.04 where Certificates of such
series may be presented or surrendered for registration of transfer or for
exchange, and for payment thereof, and where notices and demands, to or upon the
Trustee in respect of such Certificates or this Agreement may be served;
PROVIDED, HOWEVER, that, if it shall be necessary that the Trustee maintain an
office or agency in another location with respect to the Certificates of any
series (e.g., the Certificates of such series shall be represented by Definitive
Certificates and shall be listed on a national securities exchange), the Trustee
will make all reasonable efforts to establish such an office or agency. Written
notice of the location of each such other office or agency and of any change of
location thereof shall be
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given by the Trustee to the Company, any Owner Trustees, the Loan Trustees (in
the case of any Owner Trustee or Loan Trustee, at its address specified in the
Note Documents or such other address as may be notified to the Trustee) and the
Certificateholders of such series. In the event that no such office or agency
shall be maintained or no such notice of location or of change of location shall
be given, presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder with respect to the Certificates of each series. Each such Authorized
Agent shall be a bank 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, if such
successor corporation is otherwise eligible under this Section 7.12, without the
execution or filing of any paper or any further act on the part of the parties
hereto or such Authorized Agent or such successor corporation.
(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Trustee, the Company, any related Owner Trustees
and the related Loan Trustees. The Company may, and at the request of the
Trustee shall, at any time terminate the agency of any Authorized Agent by
giving written notice of termination to such Authorized Agent and to the
Trustee. Upon the resignation or termination of an Authorized Agent or in case
at any time any such Authorized Agent shall cease to be eligible under this
Section 7.12 (when, in either case, no other Authorized Agent performing the
functions of such Authorized Agent shall have been appointed), the Company shall
promptly appoint one or more qualified successor Authorized Agents, reasonably
satisfactory to the Trustee, to perform the functions of the Authorized Agent
which has resigned or whose agency has been terminated or who shall have ceased
to be eligible under this Section 7.12. The Company shall give written notice of
any such appointment made by it to the Trustee, any related Owner Trustees and
the related Loan Trustees; and in each case the Trustee shall mail notice of
such appointment to all Certificateholders of the related series as their names
and addresses appear on the Register for such series.
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(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 7.13. MONEY FOR CERTIFICATE PAYMENTS TO BE HELD IN TRUST.
All moneys deposited with any Paying Agent for the purpose of any payment on
Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of this
Section 7.13. Moneys so deposited and held in trust shall constitute a separate
trust fund for the benefit of the Certificateholders with respect to which such
money was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.14. REGISTRATION OF EQUIPMENT NOTES IN TRUSTEE'S NAME.
Subject to the provisions of any Intercreditor Agreement, the Trustee agrees
that all Equipment Notes to be purchased by any Trust 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 in trust for the benefit of the
Certificateholders of such series, or, if not so held, the Trustee or its
nominee shall be reflected as the owner of such Equipment Notes or Permitted
Investments, as the case may be, in the register of the issuer of such Equipment
Notes or Permitted Investments, as the case may be.
Section 7.15. REPRESENTATIONS AND WARRANTIES OF TRUSTEE. The
Trustee hereby represents and warrants that:
(a) the Trustee is a banking corporation organized and validly
existing in good standing under the laws of the State of New York;
(b) the Trustee has full power, authority and legal right to
execute, deliver and perform this Agreement, any Intercreditor Agreement, any
Participation Agreement and the Note Purchase Agreements and has taken all
necessary action to authorize the execution, delivery and performance by it of
this Agreement, any Intercreditor Agreement, any Participation Agreement and the
Note Purchase Agreements;
(c) the execution, delivery and performance by the Trustee of
this Agreement, any Intercreditor Agreement, any Participation Agreement and the
Note Purchase Agreements (i) will not violate any provision of any United States
federal law or the law of the state of the United States where it is located
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)
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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, any Participation Agreement and the
Note Purchase Agreements will not require the authorization, consent, or
approval of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of, any governmental authority or agency
of the United States or the state of the United States where it is located
regulating the banking and corporate trust activities of the Trustee; and
(e) this Agreement, any Intercreditor Agreement, any
Participation Agreement and the Note Purchase Agreements have been duly executed
and delivered by the Trustee and constitute the legal, valid and binding
agreements of the Trustee, enforceable against it in accordance with their
respective terms; PROVIDED, HOWEVER, that enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and (ii) general principles of
equity.
Section 7.16. WITHHOLDING TAXES; INFORMATION REPORTING. As to the
Certificates of any series, the Trustee, as trustee of the related grantor trust
created by this Agreement, shall exclude and withhold from each distribution of
principal, premium, if any, and interest and other amounts due under this
Agreement or under the Certificates of such series any and all withholding taxes
applicable thereto as required by law. The Trustee agrees to act as such
withholding agent and, in connection therewith, whenever any present or future
taxes or similar charges are required to be withheld with respect to any amounts
payable in respect of the Certificates of such series, to withhold such amounts
and timely pay the same to the appropriate authority in the name of and on
behalf of the Certificateholders of such series, that it will file any necessary
withholding tax returns or statements when due, and that, as promptly as
possible after the payment thereof, it will deliver to each such
Certificateholder of such series appropriate documentation showing the payment
thereof, together with such additional documentary evidence as such
Certificateholders may reasonably request from time to time. The Trustee agrees
to file any other information reports as it may be required to file under United
States law.
Section 7.17. TRUSTEE'S LIENS. The Trustee in its individual
capacity agrees that it will, in respect of each Trust created by this
Agreement, at its own cost and expense promptly take any action as may be
necessary to duly discharge and satisfy in full any mortgage, pledge, lien,
charge, encumbrance, security interest or claim ("Trustee's Liens") on or with
respect to the Trust Property of such Trust which is attributable to the Trustee
either (i) in its individual capacity and which is unrelated to the transactions
contemplated by this Agreement or the related
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Note Documents or (ii) as Trustee hereunder or in its individual capacity and
which arises out of acts or omissions which are not contemplated by this
Agreement.
Section 7.18. PREFERENTIAL COLLECTION OF CLAIMS. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship listed in Section 311(b) of the Trust Indenture Act. If
the Trustee shall resign or be removed as Trustee, it shall be subject to
Section 311(a) of the Trust Indenture Act to the extent provided therein.
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 each 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 7.12.
Section 8.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
CERTIFICATEHOLDERS. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders of each
series contained in the most recent list furnished to the Trustee as provided in
Section 7.12 or Section 8.01, as the case may be, and the names and addresses of
Certificateholders of each series received by the Trustee in its capacity as
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.12 or Section 8.01, as the case may be, upon receipt of a
new list so furnished.
Section 8.03. REPORTS BY TRUSTEE. Within 60 days after May 15 of
each year commencing with the first full year following the issuance of any
series of Certificates, the Trustee shall transmit to the Certificateholders of
such series, as provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of such May 15, if required by 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
- 50 -
51
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; and
(d) furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his 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).
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF
CERTIFICATEHOLDERS. Without the consent of the Certificateholders, the Company
may (but will not be required to), and the Trustee (subject to Section 9.03)
shall, at the Company's request, at any time and from time to time, enter into
one or more agreements supplemental hereto or, if applicable, to an
Intercreditor Agreement or a 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 other matters
contemplated by Section 2.01(b); or
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(2) to evidence the succession of another
corporation to the Company and the assumption by any such
successor of the covenants of the Company herein contained or of
the Company's obligations under any Intercreditor Agreement or
any Liquidity Facility; or
(3) to add to the covenants of the Company for the
benefit of the Certificateholders of any series, or to surrender
any right or power conferred upon the Company in this Agreement,
any Intercreditor Agreement or any Liquidity Facility; or
(4) to correct or supplement any provision in this
Agreement, any Intercreditor Agreement or any Liquidity Facility
which may be defective or inconsistent with any other provision
herein or therein or to cure any ambiguity or to modify any other
provision with respect to matters or questions arising under this
Agreement, any Intercreditor Agreement or any Liquidity Facility;
PROVIDED, HOWEVER, that any such action shall not materially
adversely affect the interests of the Certificateholders of any
series; to correct any mistake in this Agreement, any
Intercreditor Agreement or any Liquidity Facility; or, as
provided in any Intercreditor Agreement, to give effect to or
provide for a Replacement Liquidity Facility (as defined in such
Intercreditor Agreement); or
(5) to comply with any requirement of the SEC, any
applicable law, rules or regulations of any exchange or quotation
system on which the Certificates of any series are listed or of
any regulatory body; or
(6) to modify, eliminate or add to the provisions
of this Agreement, any Intercreditor Agreement or any Liquidity
Facility to such extent as shall be necessary to continue the
qualification of this Agreement, any Intercreditor Agreement or
any Liquidity Facility (including any supplemental agreement)
under the Trust Indenture Act or under any similar Federal
statute hereafter enacted, and to add to this Agreement, any
Intercreditor Agreement or any Liquidity Facility such other
provisions as may be expressly permitted by the Trust Indenture
Act, excluding, however, the provisions referred to in Section
316(a)(2) of the Trust Indenture Act as in effect at the date as
of which this Basic Agreement was executed or any corresponding
provision in any similar Federal statute hereafter enacted; or
(7) to evidence and provide for the acceptance of
appointment under this Agreement, any Intercreditor Agreement or
any Liquidity Facility by a successor Trustee with respect to one
or more Trusts and to add to or change any of the provisions of
this Agreement, any Intercreditor Agreement or any Liquidity
Facility as shall be necessary to provide for or facilitate the
administration of the Trust, pursuant to the requirements of
Section 7.10; or
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(8) to provide the information required under
Section 7.12 and Section 12.04 as to the Trustee; or
(9) to make any other amendments or modifications
hereto; PROVIDED, HOWEVER, that such amendments or modifications
shall apply to Certificates of any 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.
Section 9.02. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF
CERTIFICATEHOLDERS. With respect to each separate Trust and the series of
Certificates relating thereto, with the consent of the Certificateholders
holding Certificates of such series (including consents obtained in connection
with a tender offer or exchange offer for the Certificates) evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in such Trust, by Direction of said Certificateholders delivered to the Company
and the Trustee, the Company may (with the consent of the Owner Trustees, if
any, relating to such Certificates, which consent shall not be unreasonably
withheld), but shall not be obligated to, and the Trustee (subject to Section
9.03) shall, enter into an agreement or agreements supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement, any Intercreditor Agreement or any
Liquidity Facility to the extent applicable to such Certificateholders or of
modifying in any manner the rights and obligations of such Certificateholders
under this Agreement, any Intercreditor Agreement or any Liquidity Facility;
PROVIDED, HOWEVER, that no such agreement shall, without the consent of the
Certificateholder of each Outstanding Certificate affected thereby:
(1) reduce in any manner the amount of, or delay
the timing of, any receipt by the Trustee of payments on the
Equipment Notes held in such Trust or distributions that are
required to be made herein on any Certificate of such series, or
change any date of payment on any Certificate of such series, or
change the place of payment where, or the coin or currency in
which, any Certificate of such series is payable, or impair the
right to institute suit for the enforcement of any such payment
or distribution on or after the Regular Distribution Date or
Special Distribution Date applicable thereto; or
(2) permit the disposition of any Equipment Note
included in the Trust Property of such Trust except as permitted
by this Agreement, or otherwise deprive such Certificateholder of
the benefit of the ownership of the Equipment Notes in such
Trust; or
(3) alter the priority of distributions specified
in the Intercreditor Agreement in a manner materially adverse to
the interests of the Certificateholders of any series; or
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(4) reduce the specified percentage of the
aggregate Fractional Undivided Interests of such Trust that 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;
or
(5) modify any of the provisions of this Section
9.02 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 of 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 Direction of such
Certificateholders under this Section 9.02 to approve the particular form of any
proposed supplemental agreement, but it shall be sufficient if such Direction
shall approve the substance thereof.
Section 9.03. DOCUMENTS AFFECTING IMMUNITY OR INDEMNITY. If in
the opinion of the Trustee any document required to be executed by it pursuant
to the terms of Section 9.01 or 9.02 affects any interest, right, duty, immunity
or indemnity in favor of the Trustee under this Basic Agreement or any Trust
Supplement, the Trustee may in its discretion decline to execute such document.
Section 9.04. EXECUTION OF SUPPLEMENTAL AGREEMENTS. In executing,
or accepting the additional trusts created by, any supplemental agreement
permitted by this Article or the modifications thereby of the trusts created by
this Agreement, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Agreement.
Section 9.05. EFFECT OF SUPPLEMENTAL AGREEMENTS. Upon the
execution of any agreement supplemental to this Agreement under this Article,
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.
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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 (or beneficial owner
through the Subordination Agent) of any Equipment Notes (or as a prospective
purchaser of any Postponed Notes) in trust for the benefit of the
Certificateholders of any series or as Controlling Party under an Intercreditor
Agreement, receives (directly or indirectly through the Subordination Agent) a
request for a consent to any amendment, modification, waiver or supplement under
any Indenture, other Note Document or any other related 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 the
Certificateholders of such series a Direction as to (a) whether or not to take
or refrain from taking (or direct the Subordination Agent to take or refrain
from taking) any action which a holder of (or, with respect to Postponed Notes,
a prospective purchaser of) such Equipment Note or a Controlling Party has the
option to direct, (b) whether or not to give or execute (or direct the
Subordination Agent to give or execute) any waivers, consents, amendments,
modifications or supplements as a holder of (or, with respect to Postponed
Notes, a prospective purchaser of) such Equipment Note or as Controlling Party
and (c) how to vote (or direct the Subordination Agent to vote) any Equipment
Note (or, with respect to a Postponed Note, its commitment to acquire such
Postponed Note) if a vote has been called for with respect thereto. Provided
such a request for Certificateholder Direction shall have been made, in
directing any action or casting any vote or giving any consent as the holder of
any Equipment Note (or in directing the Subordination Agent in any of the
foregoing), (i) other than as Controlling Party, the Trustee shall vote for or
give consent to any such action with respect to such Equipment Note (or
Postponed Note) in the same proportion as that of (A) the aggregate face amounts
of all Certificates actually voted in favor of or for giving consent to such
action by such Direction of Certificateholders to (B) the aggregate face amount
of all Outstanding Certificates and (ii) as Controlling Party, the Trustee shall
vote as directed in such Certificateholder Direction by the Certificateholders
of such series evidencing a Fractional Undivided Interest aggregating not less
than a majority in interest in the Trust. For purposes of the immediately
preceding sentence, a Certificate shall have been "actually voted" if the Holder
of such Certificate has delivered to the Trustee an instrument evidencing such
Holder's consent to such Direction prior to one Business Day before the Trustee
directs such action or casts such vote or gives such consent. Notwithstanding
the foregoing, but subject to Section 6.04 and any
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Intercreditor Agreement, the Trustee may, with respect to the Certificates of
any series, in its own discretion and at its own direction, consent and notify
the relevant Loan Trustee of such consent (or direct the Subordination Agent to
consent and notify the Loan Trustee of such consent) to any amendment,
modification, waiver or supplement under any related Indenture or any other
related Note Document if an Event of Default hereunder shall have occurred and
be continuing or if such amendment, modification, waiver or supplement will not
materially adversely affect the interests of the Certificateholders of such
series.
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01. TERMINATION OF THE TRUSTS. In respect of each
Trust created by the Basic Agreement as supplemented by a related Trust
Supplement, the respective obligations and responsibilities of the Company and
the Trustee with respect to such Trust shall terminate upon the distribution to
all Holders of Certificates of the series of such Trust and the Trustee of all
amounts required to be distributed to them pursuant to this Agreement and the
disposition of all property held as part of the Trust Property of such Trust;
PROVIDED, HOWEVER, that in no event shall such Trust continue beyond the final
expiration date determined as provided in such Trust Supplement.
Notice of any termination of a Trust, specifying the applicable
Regular Distribution Date (or applicable Special Distribution Date, as the case
may be) upon which the Certificateholders of any series may surrender their
Certificates to the Trustee for payment of the final distribution and
cancellation, shall be mailed promptly by the Trustee to Certificateholders of
such series not earlier than the minimum number of days and not later 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 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
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written notice, the Trustee shall give a second written notice to the remaining
Certificateholders of such series to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. No
additional interest shall accrue on the Certificates of such series after any
Regular Distribution Date (or Special Distribution Date, as the case may be) of
such series, as specified in the first written notice. In the event that any
money held by the Trustee for the payment of distributions on the Certificates
of such series shall remain unclaimed for two years (or such lesser time as the
Trustee shall be satisfied, after 60 days' notice from the Company, is one month
prior to the escheat period provided under applicable law) after the final
distribution date with respect thereto, the Trustee shall pay to each Loan
Trustee the appropriate amount of money relating to such Loan Trustee and shall
give written notice thereof to 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. 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 12.04. 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
or telecopy, and any such notice shall be effective when delivered or received
or, if mailed, three days after deposit in the United States mail with proper
postage for ordinary mail prepaid,
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if to the Company:
Delta Air Lines, Inc.
General Offices
1030 Delta Boulevard
▇▇▇▇▇▇▇▇▇▇ International Airport
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer and
General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ (Legal)
(▇▇▇) ▇▇▇-▇▇▇▇ (Finance)
if to the Trustee:
The Bank of New York
-----------------
-----------------
Attention:
-----------------
Facsimile:
-----------------
Telephone:
-----------------
(b) The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Certificateholders of any
series shall be mailed by first-class mail to the addresses for
Certificateholders of such series shown on the Register kept by the Registrar
and to addresses filed with the Trustee for Certificate Owners of such series.
Failure so to mail a notice or communication or any defect in such notice or
communication shall not affect its sufficiency with respect to other
Certificateholders or Certificate Owners of such series.
(d) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is conclusively presumed to have been duly
given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to the
Certificateholders of such series, it shall mail a copy to the Trustee and to
each Paying Agent for such series at the same time.
(f) 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.
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(g) The Trustee shall promptly furnish the Company with a copy of
any demand, notice or written communication received by the Trustee hereunder
from any Certificateholder, Owner Trustee or Loan Trustee.
Section 12.05. GOVERNING LAW. THIS BASIC AGREEMENT, TOGETHER
WITH ALL TRUST SUPPLEMENTS AND CERTIFICATES, SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.06. SEVERABILITY OF PROVISIONS. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or the related Trust,
or of the Certificates of such series or the rights of the Certificateholders
thereof.
Section 12.07. TRUST INDENTURE ACT CONTROLS. This Agreement is
subject to the provisions of the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions. If any provision of this Agreement
limits, qualifies or conflicts with another provision which is required to be
included in this Agreement by the Trust Indenture Act, the required provision
shall control.
Section 12.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 12.09. SUCCESSORS AND ASSIGNS. All covenants, agreements,
representations and warranties in this Agreement by the Trustee and the Company
shall bind and, to the extent permitted hereby, shall inure to the benefit of
and be enforceable by their respective successors and assigns, whether so
expressed or not.
Section 12.10. BENEFITS OF AGREEMENT. Nothing in this Agreement
or in the Certificates of any series, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder, and the
Certificateholders of each series, any benefit or any legal or equitable right,
remedy or claim under this Agreement.
Section 12.11. LEGAL HOLIDAYS. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate of
any series shall not be a Business Day with respect to such series, then
(notwithstanding any other provision of this Agreement) payment need not be made
on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on such Regular Distribution Date or Special
Distribution Date.
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Section 12.12. COUNTERPARTS. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 12.13. COMMUNICATION BY CERTIFICATEHOLDERS WITH OTHER
CERTIFICATEHOLDERS. Certificateholders of any series may communicate with other
Certificateholders of such series with respect to their rights under this Basic
Agreement, the related Trust Supplement or the Certificates of such series
pursuant to Section 312(b) of the Trust Indenture Act. The Company, the Trustee
and any and all other persons benefitted by this Agreement shall have the
protection afforded by Section 312(c) of the Trust Indenture Act.
Section 12.14. INTENTION OF PARTIES. The parties hereto intend
that each Trust be classified for U.S. federal income tax purposes as a grantor
trust under Subpart E, Part I of Subchapter J of the Internal Revenue Code of
1986, as amended, and not as a trust or association taxable as a corporation or
as a partnership. 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 parties have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first written above.
DELTA AIR LINES, INC.
By:
----------------------------------
Name:
Title:
THE BANK OF NEW YORK
As Trustee
By:
---------------------------------
Name:
Title:
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EXHIBIT A
FORM OF CERTIFICATE
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
DELTA AIR LINES, INC. PASS THROUGH TRUST, 199__-__
199__ Pass Through Certificate, Series __________
Final Regular Distribution Date: _____, __
evidencing a fractional undivided interest in a
trust, the property of which includes certain
equipment notes each secured by Aircraft owned by
or leased to Delta Air Lines, Inc.
Certificate
No.____________
$_________ Fractional Undivided Interest representing ._____% of the Trust per
$1,000 face amount
THIS CERTIFIES THAT __________________, for value received, is
the registered owner of a $___________ (________ dollars) Fractional Undivided
Interest in the Delta Air Lines, Inc. Pass Through Trust, 199__-__, Series
[______] (the "Trust") created by __________, as trustee (the "Trustee"),
pursuant to a Pass Through Trust Agreement dated as of __________, 1998 (the
"Basic Agreement"), as supplemented by Trust Supplement No. _______ thereto
dated __________, 199_ (collectively, the "Agreement"), between the Trustee and
Delta Air Lines, Inc., a corporation incorporated under Delaware law (the
"Company"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in the Agreement. This
Certificate is one of the duly authorized Certificates designated as "199_ Pass
Through Certificate, Series ____" (herein called the "Certificates"). This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement. By virtue of its acceptance hereof, the
Certificateholder of this Certificate assents to and agrees to be bound by the
63
provisions of the Agreement and any related Intercreditor Agreement. 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 or will be
secured by, among other things, a security interest in aircraft leased to or
owned by the Company.
-----------
This legend to appear on Book-Entry Certificates to be deposited
with The Depository Trust 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.
Subject to and in accordance with the terms of the Agreement and
any related Intercreditor Agreement, from funds then available to the Trustee,
there will be distributed on each __________ and ___________ (a "Regular
Distribution Date"), commencing on _________, 199_, to the Person in whose name
this Certificate is registered at the close of business on the 15th day
preceding the Regular Distribution Date, an amount in respect of the Scheduled
Payments on the Equipment Notes due on such Regular Distribution Date, the
receipt of which has been confirmed by the Trustee, equal to the product of the
percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Scheduled Payments. Subject to and in accordance with
the terms of the Agreement and any related Intercreditor Agreement, in the event
that Special Payments on the Equipment Notes are received by the Trustee, from
funds then available to the Trustee, there shall be distributed on the
applicable Special Distribution Date, to the Person in whose name this
Certificate is registered at the close of business on the 15th day preceding the
Special Distribution Date, 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. The Trustee shall mail notice of each Special Payment
and the Special Distribution Date therefor to the Certificateholder of this
Certificate.
Distributions on this Certificate will be made by the Trustee by
check mailed to the Person entitled thereto, without the presentation or
surrender of this Certificate or the making of any notation hereon. Except as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after notice mailed by the Trustee
of
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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 of payment, all as more
specifically set forth on the face hereof and in the Agreement. All payments or
distributions made to Certificateholders under the Agreement shall be made only
from the Trust Property and only to the extent that the Trustee shall have
sufficient income or proceeds from the Trust Property to make such payments in
accordance with the terms of the Agreement. Each Certificateholder of this
Certificate, by its acceptance hereof, agrees that it will look solely to the
income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Agreement may
be examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Certificateholders under the Agreement at any time
by the Company and the Trustee with the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust. Any such consent by the
Certificateholder of this Certificate shall be conclusive and binding on such
Certificateholder and upon all future Certificateholders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Certificateholders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in its capacity as Registrar, or
by any successor Registrar duly endorsed or accompanied by a written instrument
of transfer in form satisfactory to the Trustee and the Registrar, duly executed
by the Certificateholder hereof or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate Fractional Undivided Interest in the
Trust will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $1,000 Fractional Undivided Interest
and integral multiples thereof except that one Certificate may be issued in a
different denomination. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
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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 required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
THIS CERTIFICATE AND THE AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES AND CERTIFICATEHOLDERS HEREUNDER AND THEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Unless the certificate of authentication hereon has been executed
by the Trustee, by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
DELTA AIR LINES, INC.
PASS THROUGH TRUST, SERIES 199__-__
By: THE BANK OF NEW YORK
as Trustee
By:
------------------------------------
Title:
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[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
This is one of the Certificates referred to in the
within-mentioned Pass Through Agreement and related Series Supplement.
THE BANK OF NEW YORK
as Trustee
By:
--------------------------------------
Authorized Officer
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[Reverse of Pass Through Certificate]
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 of payment, all as more
specifically set forth on the face hereof and in the Trust Agreement and related
Series Supplement. All payments or distributions made to Certificateholders
under the Trust Agreement shall be made only from the Trust Property and only to
the extent that the Trust Trustee shall have sufficient income or proceeds from
the Trust Property to make such payments in accordance with the terms of the
Trust Agreement and related Series Supplement. 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 Trust Agreement and
related Series Supplement. This Certificate does not purport to summarize the
Trust Agreement and related Series Supplement and reference is made to the Trust
Agreement and related Series Supplement for information with respect to the
interests, rights, benefits, obligations, proceeds, and duties evidenced hereby.
A copy of the Trust Agreement may be examined during normal business hours at
the principal office of the Trust Trustee, and at such other places, if any,
designated by the Trust Trustee, by any Certificateholder upon request.
As of the date of issuance of this Certificate, and assuming that
all proceeds are used to purchase the Equipment Notes on or before
______________, 199_ and that no early redemption, purchase or default in
respect of the Equipment Notes shall occur, the aggregate scheduled repayments
of principal on the Equipment Trust Certificates for the Trust and the resulting
Pool Factors for the Trust after taking into account each such repayment are set
forth below:
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Trust, 199___-___
Regular Scheduled Principal
Distribution Payments on
Date Equipment Notes Pool Factor
------------ ------------------- -----------
$ 0.0000000
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