EXHIBIT 4.4
PASS THROUGH TRUST AGREEMENT
Dated as of December 4, 1998
between
US AIRWAYS, INC.
and
STATE STREET BANK AND TRUST COMPANY,
as Trustee
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.02. Compliance Certificates and Opinions . . . . . . . . . . 13
Section 1.03. Form of Documents Delivered to Trustee . . . . . . . . . 14
Section 1.04. Directions of Certificateholders . . . . . . . . . . . . 14
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES:
ACQUISITION OF TRUST PROPERTY
Section 2.01. Amount Unlimited; Issuable in Series . . . . . . . . . . 16
Section 2.02. Acquisition of Equipment Notes . . . . . . . . . . . . . 18
Section 2.03. Acceptance by Trustee . . . . . . . . . . . . . . . . . 20
Section 2.04. Limitation of Powers . . . . . . . . . . . . . . . . . . 21
ARTICLE III
THE CERTIFICATES
Section 3.01. Form, Denomination and Execution of Certificates . . . . 21
Section 3.02. Authentication of Certificates . . . . . . . . . . . . . 22
Section 3.03. Temporary Certificates . . . . . . . . . . . . . . . . . 22
Section 3.04. Transfer and Exchange . . . . . . . . . . . . . . . . . 23
Section 3.05. Book-Entry and Definitive Certificates . . . . . . . . . 23
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates . . . 26
Section 3.07. Persons Deemed Owners . . . . . . . . . . . . . . . . . 26
Section 3.08. Cancellation . . . . . . . . . . . . . . . . . . . . . . 27
Section 3.09. Limitation of Liability for Payments . . . . . . . . . . 27
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account . . . . 27
Section 4.02. Distributions from Certificate Account and Special
Payments Account . . . . . . . . . . . . . . . . . . . 28
Section 4.03. Statements to Certificateholders . . . . . . . . . . . . 30
Section 4.04. Investment of Special Payment Moneys . . . . . . . . . . 31
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence . . . . . . . . . . . 31
Section 5.02. Consolidation, Merger, Etc. . . . . . . . . . . . . . . 32
ARTICLE VI
DEFAULT
Section 6.01. Indenture Events of Default and Triggering Events . . . 33
Section 6.02. Incidents of Sale of Equipment Notes . . . . . . . . . . 34
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee
May Bring Suit . . . . . . . . . . . . . . . . . . . . 35
Section 6.04. Control by Certificateholders . . . . . . . . . . . . . 35
Section 6.05. Waiver of Past Defaults . . . . . . . . . . . . . . . . 36
Section 6.06. Right of Certificateholders to Receive Payments Not
to Be Impaired . . . . . . . . . . . . . . . . . . . . 37
Section 6.07. Certificateholders May Not Bring Suit Except Under
Certain Conditions . . . . . . . . . . . . . . . . . . 37
Section 6.08. Remedies Cumulative . . . . . . . . . . . . . . . . . . 38
Section 6.09. Undertaking for Costs . . . . . . . . . . . . . . . . . 38
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities . . . . . . . . . . 38
Section 7.02. Notice of Defaults . . . . . . . . . . . . . . . . . . . 39
Section 7.03. Certain Rights of Trustee . . . . . . . . . . . . . . . 39
Section 7.04. Not Responsible for Recitals or Issuance of
Certificates . . . . . . . . . . . . . . . . . . . . . 41
Section 7.05. May Hold Certificates . . . . . . . . . . . . . . . . . 41
Section 7.06. Money Held in Trust . . . . . . . . . . . . . . . . . . 41
Section 7.07. Compensation and Reimbursement . . . . . . . . . . . . . 41
Section 7.08. Corporate Trustee Required; Eligibility . . . . . . . . 42
Section 7.09. Resignation and Removal; Appointment of Successor . . . 43
Section 7.10. Acceptance of Appointment by Successor . . . . . . . . . 45
Section 7.11. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . 45
Section 7.12. Maintenance of Agencies . . . . . . . . . . . . . . . . 46
Section 7.13. Money for Certificate Payments to be Held in Trust . . . 47
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
Section 8.03. Reports by Trustee . . . . . . . . . . . . . . . . . . . 50
Section 8.04. Reports by the Company . . . . . . . . . . . . . . . . . 51
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders . . . . . . . . . . . . . . . . . . 52
Section 9.02. Supplemental Agreements with Consent of
Certificateholders . . . . . . . . . . . . . . . . . . 53
Section 9.03. Documents Affecting Immunity or Indemnity . . . . . . . 55
Section 9.04. Execution of Supplemental Agreements . . . . . . . . . . 55
Section 9.05. Effect of Supplemental Agreements . . . . . . . . . . . 55
Section 9.06. Conformity with Trust Indenture Act . . . . . . . . . . 55
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 . . . . . . . . . . . . . . . 57
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders . . . . . . . 58
Section 12.02. Liabilities of Certificateholders . . . . . . . . . . . 58
Section 12.03. Registration of Equipment Notes in Name of
Subordination Agent . . . . . . . . . . . . . . . . . 58
Section 12.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 12.05. Governing Law . . . . . . . . . . . . . . . . . . . . . 60
Section 12.06. Severability of Provisions . . . . . . . . . . . . . . . 60
Section 12.07. Trust Indenture Act Controls . . . . . . . . . . . . . . 60
Section 12.08. Effect of Headings and Table of Contents . . . . . . . . 60
Section 12.09. Successors and Assigns . . . . . . . . . . . . . . . . . 60
Section 12.10. Benefits of Agreement . . . . . . . . . . . . . . . . . 61
Section 12.11. Legal Holidays . . . . . . . . . . . . . . . . . . . . . 61
Section 12.12. Counterparts . . . . . . . . . . . . . . . . . . . . . . 61
Section 12.13. Communication by Certificateholders with Other
Certificateholders . . . . . . . . . . . . . . . . . . 61
Section 12.14. Intention of Parties . . . . . . . . . . . . . . . . . . 61
EXHIBIT A Form of Certificate . . . . . . . . . . . . . . . . . . . A-1
Reconciliation and tie between US Airways Pass Through Trust Agreement,
dated as of December 4, 1998 and the Trust Indenture Act of 1939. This
reconciliation does not constitute part of the Pass Through Trust
Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
------------------- ------------------
310(a)(1) 7.08
(a)(2) 7.08
312(a) 3.05; 8.01; 8.02
313(a) 8.03
314(a)(1)-(3) 8.04(a)-(c)
(a)(4) 8.04(d)
(c)(1) 1.02
(c)(2) 1.02
(d)(1) 1.02; 7.13; 11.01
(d)(2) 1.02; 7.13; 11.01
(d)(3) 1.02; 2.01
(e) 1.02
315(b) 7.02
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
PASS THROUGH TRUST AGREEMENT
This PASS THROUGH TRUST AGREEMENT, dated as of December 4, 1998 (the
"Basic Agreement"), between US AIRWAYS, INC., a Delaware corporation (the
"Company"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company, as Trustee, is made with respect to the formation from time to
time of separate US Airways Pass Through Trusts, and the issuance from time
to time of separate series of Pass Through Certificates representing
fractional undivided interests in the respective Trusts.
W I T N E S S E T H:
WHEREAS, from time to time, the Company and the Trustee may enter
into a Trust Supplement (this and certain other defined terms used herein
are defined in Section 1.01) pursuant to which the Trustee shall declare
the creation of a separate Trust for the benefit of the Holders of the
series of Certificates to be issued in respect of such Trust, and the
initial Holders of the Certificates of such series, as the grantors of such
Trust, by their respective acceptances of the Certificates of such series,
shall join in the creation of such Trust with the Trustee;
WHEREAS, all Certificates to be issued in respect of each separate
Trust will be issued as a separate series pursuant to this Agreement, will
evidence fractional undivided interests in such Trust and will have no
rights, benefits or interests in respect of any other separate Trust or the
property held therein, subject, however, to the provisions of any
Intercreditor Agreement to which one or more Trusts may be a party;
WHEREAS, from time to time, pursuant to the terms and conditions of
this Agreement with respect to each separate Trust formed hereunder, the
Trustee on behalf of such Trust shall purchase one or more issues of
Equipment Notes having the same interest rate as, and final maturity dates
not later than the final Regular Distribution Date of, the series of
Certificates issued in respect of such Trust and, 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 has duly authorized the execution and delivery of
this Basic Agreement and each Trust Supplement with respect to all such
Certificates and is undertaking to perform certain administrative and
ministerial duties hereunder and is also undertaking to pay the fees and
expenses of the Trustee; and
WHEREAS, this Basic Agreement, as supplemented from time to time, is
subject to the provisions of the Trust Indenture Act and shall, to the
extent applicable, be governed by such provisions;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Basic Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms used herein that are defined in this Article I
have the meanings assigned to them in this Article I, and include the
plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, or by the
rules promulgated under the Trust Indenture Act, have the meanings
assigned to them therein;
(3) all references in this Basic Agreement to designated
"Articles", "Sections", "Subsections" and other subdivisions are to
the designated Articles, Sections, Subsections and other subdivisions
of this Basic Agreement;
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Basic Agreement as a whole and
not to any particular Article, Section, Subsection or other
subdivision;
(5) unless the context otherwise requires, whenever the words
"including", "include" or "includes" are used herein, it shall be
deemed to be followed by the phrase "without limitation"; and
(6) the term "this Agreement" (as distinguished from "this
Basic Agreement") refers, unless the context otherwise requires, to
this Basic Agreement as supplemented by the Trust Supplement creating
a particular Trust and establishing the series of Certificates issued
or to be issued in respect thereof, with reference to such Trust and
such series of Certificates, as this Basic Agreement as so
supplemented may be further supplemented with respect to such Trust
and such series of Certificates.
Act: Has the meaning, with respect to any Certificateholder,
specified in Section 1.04(a).
Affiliate: Means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such Person. For the
purposes of this definition, "control", when used with respect to any
specified Person, means the power, directly or indirectly, to direct
the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise, and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
Aircraft: Means one or more aircraft, including engines
therefor, owned by or leased to the Company and securing one or more
Equipment Notes.
Authorized Agent: Means, with respect to the Certificates of
any series, any Paying Agent or Registrar for the Certificates of
such series.
Basic Agreement: Means this Pass Through Trust Agreement, as
the same may from time to time be supplemented, amended or modified,
but does not include any Trust Supplement.
Book-Entry Certificates: Means, with respect to the
Certificates of any series, a beneficial interest in the Certificates
of such series, ownership and transfers of which shall be made
through book entries as described in Section 3.05.
Business Day: Means, with respect to the Certificates of any
series, any day other than a Saturday, a Sunday or a day on which
commercial banks are required or authorized to close in New York, New
York, 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.
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 US Airways, 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.
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 an indenture having
substantially the same terms and conditions which relates to a
Substitute Aircraft, as each such indenture may be amended or
supplemented in accordance with its respective terms; and
"Indentures" means all of such agreements.
Indenture Event of Default: Means, with respect to any
Indenture, any Indenture Event of Default (as such term is defined in
such Indenture).
Initial Regular Distribution Date: Means, with respect to the
Certificates of any series, the first Regular Distribution Date on
which a Scheduled Payment is to be made.
Intercreditor Agreement: Means 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 substantially in the form
attached as an Exhibit to the related Trust Supplement.
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.
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 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, (a) in the
case of the Company, by (i) the Chairman or Vice Chairman of the
Board of Directors, the President, any Executive Vice President, any
Senior Vice President or the Treasurer of the Company, signing alone,
or (ii) any Vice President of the Company signing together with the
Secretary, the Assistant Secretary, the Treasurer or any Assistant
Treasurer of the Company or (b) in the case of the Trustee or an
Owner Trustee or a Loan Trustee, a Responsible Officer of the Trustee
or such Owner Trustee or such Loan Trustee, as the case may be.
Opinion of Counsel: Means a written opinion of legal counsel
who (a) in the case of counsel for the Company may be (i) a senior
attorney of the Company one of whose principal duties is furnishing
advice as to legal matters, (ii) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
LLP (and any affiliate thereof) 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 cancelled by
the Registrar or delivered to the Trustee or the Registrar for
cancellation;
(ii) All of the Certificates of such series if money in
the full amount required to make the final distribution with
respect to such series pursuant to Section 11.01 hereof has
been theretofore deposited with the Trustee in trust for the
Holders of the Certificates of such series as provided in
Section 4.01, pending distribution of such money to such
Certificateholders pursuant to payment of such final
distribution payment; and
(iii) Certificates of such series in exchange for or in
lieu of which other Certificates of such series have been
authenticated and delivered pursuant to this Agreement.
Owner Participant: Means, with respect to any Equipment Note,
the "Owner Participant", if any, as referred to in the Indenture
pursuant to which such Equipment Note is issued and any permitted
successor or assign of such Owner Participant; and "Owner
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.
Paying Agent: Means, with respect to the Certificates of any
series, the paying agent maintained and appointed for the
Certificates of such series pursuant to Section 7.12.
Permitted Investments: Means obligations of the United States
of America or agencies or instrumentalities thereof for the payment
of which the full faith and credit of the United States of America is
pledged, maturing in not more than 60 days after the date of
acquisition thereof or such lesser time as is required for the
distribution of any Special Payments on a Special Distribution Date.
Person: Means any person, including any individual,
corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, trustee, unincorporated
organization, or government or any agency or political subdivision
thereof.
Pool Balance: Means, with respect to the Certificates of any
series as of any date, (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 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.
Pool Factor: Means, with respect to any series of Certificates
as of any date, the quotient (rounded to the seventh decimal place)
computed by dividing (i) the Pool Balance of such series as at such
date by (ii) the original aggregate face amount of the Certificates
of such series. The Pool Factor as of any Distribution Date shall be
computed after giving effect to the payment of principal, if any, on
the Equipment Notes or other Trust Property 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 signed by an officer of the Company (1) requesting that the
Trustee temporarily postpone purchase of the related Equipment Notes
to a date later than the Issuance Date of such series of
Certificates, (2) identifying the amount of the purchase price of
each such Equipment Note and the aggregate purchase price for all
such Equipment Notes, (3) setting forth the reasons for such
postponement and (4) with respect to each such Equipment Note, either
(a) setting or resetting a new Transfer Date (which shall be on or
prior to the applicable Cut-off Date) for payment by the Trustee of
such purchase price and issuance of the related Equipment Note
(subject to subsequent change from time to time in accordance with
the relevant Note Purchase Agreement), or (b) indicating that such
new Transfer Date (which shall be on or prior to the applicable
Cut-off Date) will be set by subsequent written notice not less than
one Business Day prior to such new Transfer Date (subject to
subsequent change from time to time in accordance with the relevant
Note Purchase Agreement).
Potential Purchaser: Has the meaning, with respect to any
Certificateholder, specified in Section 6.01(b).
PTC Event of Default: Means, with respect to the Certificates
of any series, any failure to pay within ten Business Days of the due
date thereof: (i) the outstanding Pool Balance of such series of
Certificates on the date specified in any Trust Supplement for such
payment or (ii) interest due on the Certificates of such series on
any Distribution Date (unless the related Subordination Agent shall
have made an Interest Drawing or Drawings (as defined in the related
Intercreditor Agreement), or a withdrawal or withdrawals pursuant to
a cash collateral account under such Intercreditor Agreement, with
respect thereto in an aggregate amount sufficient to pay such
interest and shall have distributed such amount to the Trustee).
Purchasing Certificateholder: Has the meaning, with respect to
any Certificateholder, specified in Section 6.01(b).
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, with respect to 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 (other than any such payment which
is not in fact received by the Trustee or any Subordination Agent
within five days of the date upon which payment is scheduled to be
made), which payment in the case of clauses (i) or clause (ii)
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.
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) or (iii) the amounts required to be distributed
pursuant to the penultimate paragraph of Section 2.02(b).
Special Payments Account: Means, with respect to the
Certificates of any series, the account or accounts created and
maintained for such series pursuant to Section 4.01(b) and the
related Trust Supplement.
Specified Investments: Means, with respect to any Trust, unless
otherwise specified in the related Trust Supplement, (i) obligations
of, 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.
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, and in any event refers to any such date as it
may be changed from time to time in accordance with the terms of such
Note Purchase Agreement.
Triggering Event: Has the meaning specified therefor in any
Intercreditor Agreement.
Trust: Means, with respect to the Certificates of any series,
the trust under this Agreement.
Trustee: Means State Street Bank and Trust Company, 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 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.
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request (except with respect to matters set forth in Article
II) by the Company, any Owner Trustee or any Loan Trustee to the Trustee to
take any action under any provision of this Basic Agreement or, in respect
of the Certificates of any series, this Agreement, the Company, such Owner
Trustee or such Loan Trustee, as the case may be, shall furnish to the
Trustee (i) an Officer's Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Basic
Agreement or this Agreement relating to the proposed action have been
complied with and (ii) an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied
with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Basic Agreement or this Agreement relating to such
particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Basic Agreement or, in respect
of the Certificates of any series, this Agreement (other than a certificate
provided pursuant to Section 8.04(d)) or any Trust Supplement shall
include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions in
this Basic Agreement
or this Agreement relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or
that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters and any such Person may
certify or give an opinion as to such matters in one or several documents.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Basic Agreement or, in respect of the
Certificates of any series, this Agreement, they may, but need not, be
consolidated and form one instrument.
Section 1.04. Directions of 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.
(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 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);
(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 and the rights of Potential Purchasers upon the occurrence
of a Triggering
Event;
(15) whether such series will have the benefit of a Liquidity
Facility and, if so, any terms appropriate thereto;
(16) whether there will be a deposit agreement or other
arrangement prior to the delivery of one or more Aircraft and, if so,
any terms appropriate thereto;
(17) the "Responsible Party" for purposes of directing the
Trustee to make Specified Investments; and
(18) 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 or in any other document to which a Trustee is a party
relating to the issuance of the Certificates of such series.
Section 2.02. Acquisition of Equipment Notes. (a) Unless otherwise
specified in the related Trust Supplement, on or prior to the Issuance Date
of the Certificates of a series, the Trustee shall execute and deliver the
related Note Purchase Agreements in the form delivered to the Trustee by
the Company and shall, subject to the respective terms thereof, perform its
obligations under such Note Purchase Agreements. The Trustee shall issue
and sell such Certificates, in authorized denominations and in such
Fractional Undivided Interests, so as to result in the receipt of
consideration in an amount equal to the aggregate purchase price of the
Equipment Notes contemplated to be purchased by the Trustee under the
related Note Purchase Agreements and, concurrently therewith, the Trustee
shall purchase, pursuant to the terms and conditions of the Note Purchase
Agreements, such Equipment Notes at a purchase price equal to the amount of
such consideration so received. Except as provided in Sections 3.03, 3.04
and 3.06 hereof, the Trustee shall not execute, authenticate or deliver
Certificates of such series in excess of the aggregate amount specified in
this paragraph. The provisions of this Subsection (a) are subject to the
provisions of Subsection (b) below.
(b) If on or prior to the Issuance Date with respect to a
series of Certificates the Company shall deliver to the Trustee a
Postponement Notice relating to one or more Postponed Notes, the Trustee
shall postpone the purchase of such Postponed Notes and shall deposit into
an escrow account (as to such Trust, the "Escrow Account") to be maintained
as part of the related Trust an amount equal to the purchase price of such
Postponed Notes (the "Escrowed Funds"). The portion of the Escrowed Funds
so deposited with respect to any particular Postponed Notes shall be
invested by the Trustee at the written direction and risk of, and for the
benefit of, the Responsible Party 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.
Any earnings on Specified Investments received from time to time by
the Trustee shall be promptly distributed to the Responsible Party. The
Responsible Party shall pay to the Trustee for deposit to the relevant
Escrow Account an amount equal to any losses on such Specified Investments
as incurred. On the Initial Regular Distribution Date in respect of the
Certificates of any series, the Responsible Party will 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 Responsible Party
shall pay to the Trustee for deposit in the related Special Payments
Account, in immediately available funds, an amount equal to the interest
that would have accrued on the Postponed Notes designated in such notice at
a rate equal to the interest rate applicable to such Certificates from the
Issuance Date to, but not including, such Special Distribution Date and
(ii) the Trustee shall transfer an amount equal to that amount of Escrowed
Funds that would have been used to purchase the Postponed Notes designated
in such notice and the amount paid by the 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 Responsible Party shall pay to the Trustee for
deposit in such Special Payments Account, in immediately available funds,
an amount equal to the interest that would have accrued on such Postponed
Notes contemplated to be purchased with such unused Escrowed Funds (other
than Escrowed Funds referred to in the immediately preceding paragraph) but
not so purchased at a rate equal to the interest rate applicable to such
Certificates from the 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 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 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 related Indentures) by bidding such Equipment
Notes or otherwise, or taking any action with respect to any such Aircraft
once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01. Form, Denomination and Execution of Certificates. 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 equaling 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, and
evidencing the entire ownership of the related Trust. Thereafter, the
Trustee shall duly execute, authenticate and deliver the Certificates of
such series as herein provided.
(b) No Certificate of any series shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless there
appears on such Certificate a certificate of authentication substantially
in the form set forth in Exhibit A hereto executed by the Trustee by manual
signature, and such certificate of authentication upon any Certificate
shall be conclusive evidence, and the only evidence, that such Certificate
has been duly authenticated and delivered hereunder. All Certificates of
any series shall be dated the date of their authentication.
Section 3.03. Temporary Certificates. Until definitive Certificates
are ready for delivery, the Trustee shall execute, authenticate and deliver
temporary Certificates of each series. Temporary Certificates of each
series shall be substantially in the form of definitive Certificates of
such series but may have insertions, substitutions, omissions and other
variations determined to be 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
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 cancelled 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 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 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 bona fide 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.
Section 3.08. Cancellation. All Certificates surrendered for payment
or transfer or exchange shall, if surrendered to the Trustee or any agent
of the Trustee other than the Registrar, be delivered to the Registrar for
cancellation and shall promptly be cancelled by it. No Certificates shall
be authenticated in lieu of or in exchange for any Certificates cancelled
as provided in this Section 3.08, except as expressly permitted by this
Agreement. All cancelled Certificates held by the Registrar shall be
destroyed and a certification of their destruction delivered to the
Trustee.
Section 3.09. Limitation of Liability for Payments. All payments and
distributions made to Certificateholders of any series in respect of the
Certificates of such series shall be made only from the Trust Property of
the related Trust and only to the extent that the Trustee shall have
sufficient income or proceeds from such Trust Property to make such
payments in accordance with the terms of Article IV of this Agreement. Each
Certificateholder, by its acceptance of a Certificate, agrees that it will
look solely to the income and proceeds from the Trust Property of the
related Trust for any payment or distribution due to such Certificateholder
pursuant to the terms of this Agreement and that it will not have any
recourse to the Company, the Trustee, the Loan Trustees, 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 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).
(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 Cut-off 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
cancelled, the Trustee, as soon as possible after learning thereof, shall
cause notice thereof to be mailed to each Certificateholder of the related
series at its address as it appears on the Register.
Section 4.03. Statements to Certificateholders. (a) On each Regular
Distribution Date and Special Distribution Date, the Trustee will include
with each distribution 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 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 by the Trustee in Permitted Investments selected
by the Company in written instructions to the Trustee pending distribution
of such Special Payment pursuant to Section 4.02. Absent receipt of such
instructions from the Company, such Special Payment shall remain uninvested
by the Trustee pending receipt of written investment instructions. 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 be (i) organized and validly existing
under the laws of the United States of America or any state thereof
or the District of Columbia, (ii) a "citizen of the United States" as
defined in 49 U.S.C. ▇▇.▇▇. 40102(a)(15), as amended, and (iii) a
United States certificated air carrier, 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. ▇▇.▇▇. 1110),
with respect to the Leases or the Aircraft owned by the Company;
(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; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate of the Company and an Opinion of Counsel of the
Company (that may be the Company's General Counsel or other senior
attorney of the Company) reasonably satisfactory to the Trustee, each
stating that such consolidation, merger, conveyance, transfer or
lease and the assumption agreement mentioned in clause (b) above
comply with this Section 5.02 and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
Upon any consolidation or merger, or any conveyance, transfer or
lease of substantially all of the assets of the Company as an entirety in
accordance with this Section 5.02, the successor corporation or Person
formed by such consolidation or into which the Company is merged or to
which such conveyance, 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. Indenture Events of Default and Triggering Events. (a)
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) By acceptance of its Certificate, each Certificateholder
agrees that at any time after the occurrence and during the continuation of
a Triggering Event, each Certificateholder of Certificates of certain
series (each, a "Potential Purchaser" and, collectively, the "Potential
Purchasers") 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 (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:
(1) Certificateholders and Trustee May Purchase Equipment
Notes. Any Certificateholder, the Trustee in its individual or any
other capacity or any other Person may bid for and purchase any of
the Equipment Notes held in the Trust, and upon compliance with the
terms of sale, may hold, retain, possess and dispose of such
Equipment Notes in their own absolute right without further
accountability.
(2) Receipt of Trustee Shall Discharge Purchaser. The receipt
of the Trustee making such sale shall be a sufficient discharge to
any purchaser for his purchase money, and, after paying such purchase
money and receiving such receipt, such purchaser or its personal
representative or assigns shall not be obliged to see to the
application of such purchase money, or be in any way answerable for
any loss, misapplication or non-application thereof.
(3) Application of Moneys Received Upon Sale. Any moneys
collected by the Trustee upon any sale made either under the power of
sale given by this Agreement or otherwise for the enforcement of this
Agreement shall be applied as provided in Section 4.02.
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May
Bring Suit. If there shall be a failure to make payment of the principal
of, premium, if any, or interest on any Equipment Note 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
(1) such Direction shall not in the opinion of the Trustee be
in conflict with any rule of law or with this Agreement and would not
involve the Trustee in personal liability or expense,
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Certificateholders of such
series not taking part in such Direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such Direction.
Section 6.05. Waiver of Past Defaults. Subject to any 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 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 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. (a) 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 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.
(b) The Trustee shall not be deemed to have knowledge of any
Default unless a Responsible Officer of the Trustee shall have received
written notice of such Default; provided, however, that the Trustee shall
be deemed to have notice of any failure to receive Scheduled Payments
hereunder.
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 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 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 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 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.
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
Certificateholder for at least six months; or
(2) the Trustee shall cease to be eligible under Section 7.08
and shall fail to resign after written request therefor by the
Company or by any such Certificateholder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation;
then, in any case, (i) the Company may remove the Trustee or (ii) any
Certificateholder of the related series who has been a bona fide
Certificateholder for at least six months may, on behalf of itself and all
others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee of
such Trust.
(e) If a Responsible Officer of the Trustee shall obtain actual
knowledge of an Avoidable Tax (as defined below) in respect of any Trust
which has been or is likely to be asserted, the Trustee shall promptly
notify the Company and shall, within 30 days of such notification, resign
as Trustee of such Trust hereunder unless within such 30-day period the
Trustee shall have received notice that the Company has agreed to pay such
tax. The Company shall promptly appoint a successor Trustee of such Trust
in a jurisdiction where there are no Avoidable Taxes. As used herein, an
"Avoidable Tax" in respect of such Trust means a state or local tax: (i)
upon (w) such Trust, (x) such Trust Property, (y) Certificateholders of
such Trust or (z) the Trustee for which the Trustee is entitled to seek
reimbursement from the Trust Property of such Trust, and (ii) which would
be avoided if the Trustee were located in 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 Certificateholder of the related series for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee of such Trust.
(g) The successor Trustee of a Trust shall give notice of the
resignation and removal of the Trustee and appointment of the successor
Trustee by mailing written notice of such event by first-class mail,
postage prepaid, to the Certificateholders of the related series as their
names and addresses appear in the Register. Each notice shall include the
name of such successor Trustee and the address of its Corporate Trust
Office.
Section 7.10. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute and deliver to the Company and to
the retiring Trustee with respect to any or all Trusts an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee with respect to such 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,
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
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.
(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 state chartered trust company
organized and validly existing in good standing under the laws of the
Commonwealth of
Massachusetts.
(b) the Trustee has full power, authority and legal right
to execute, deliver and perform this Agreement, any Intercreditor
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 and the Note
Purchase Agreements;
(c) the execution, delivery and performance by the
Trustee of this Agreement, any Intercreditor 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) will not violate any provision of the charter documents
or by-laws of the Trustee, and (iii) will not violate any provision
of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of any lien on any
properties included in the Trust Property pursuant to the provisions
of any mortgage, indenture, contract, agreement or other undertaking
to which it is a party, which violation, default or lien could
reasonably be expected to have an adverse effect on the Trustee's
performance or ability to perform its duties hereunder or thereunder
or on the transactions contemplated herein or therein;
(d) the execution, delivery and performance by the
Trustee of this Agreement, any Intercreditor Agreement and the 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 and the
Note Purchase Agreements have been or will be duly executed and
delivered by the Trustee and upon such execution and delivery will
constitute the legal, valid and binding agreements of the Trustee,
enforceable against it in accordance with their respective terms;
provided, however, that enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and (ii)
general principles of equity.
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 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 May 15, if required by
Section 313(a) of the Trust Indenture Act.
Section 8.04. Reports by the Company. The Company shall:
(a) file with the Trustee, within 30 days after the
Company is required to file the same with the SEC, copies of the
annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the SEC may
from time to time by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934, as amended; or,
if the Company is not required to file information, documents or
reports pursuant to either of such sections, then to file with the
Trustee and the SEC, in accordance with rules and regulations
prescribed by the SEC, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
section 13 of the Securities Exchange Act of 1934, as amended, in
respect of a security listed and registered on a national securities
exchange as may be prescribed in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with
the rules and regulations prescribed by the SEC, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants of the Company provided for
in this Agreement, as may be required by such rules and regulations,
including, in the case of annual reports, if required by such rules
and regulations, certificates or opinions of independent public
accountants, conforming to the requirements of Section 1.02;
(c) transmit to all Certificateholders, in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act
such summaries of any information, documents and reports required to
be filed by the Company pursuant to subsections (a) and (b) of this
Section 8.04 as may be required by rules and regulations prescribed
by the SEC; 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, a Note Purchase 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
(2) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein contained or of the Company's obligations under
any Intercreditor Agreement, any Note Purchase Agreement or any
Liquidity Facility; or
(3) to add to the covenants of the Company for the benefit of
the Certificateholders of any series, or to surrender any right or
power conferred upon the Company in this Agreement, any Intercreditor
Agreement or any Liquidity Facility; or
(4) to correct or supplement any provision in this Agreement,
any Intercreditor Agreement, any Note Purchase 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, any Note
Purchase 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, any Note Purchase
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, any Note Purchase Agreement
or any Liquidity Facility to such extent as shall be necessary to
continue the qualification of this Agreement, any Intercreditor
Agreement, any Note Purchase 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, any Note Purchase
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, any Note Purchase
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
(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
(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.
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 has the option to direct, (b)
whether or not to give or execute (or direct the Subordination Agent to
give or execute) any waivers, consents, amendments, modifications or
supplements as a holder of (or, with respect to Postponed Notes, a
prospective purchaser of) such Equipment Note or a Controlling Party and
(c) how to vote (or direct the Subordination Agent to vote) any Equipment
Note (or, with respect to a Postponed Note, its commitment to acquire such
Postponed Note) if a vote has been called for with respect thereto.
Provided such a request for Certificateholder Direction shall have been
made, in directing any action or casting any vote or giving any consent as
the holder of any Equipment Note (or in directing the Subordination Agent
in any of the foregoing), (i) other than as Controlling Party, the Trustee
shall vote for or give consent to any such action with respect to such
Equipment Note (or Postponed Note) in the same proportion as that of (A)
the aggregate face amounts of all Certificates actually voted in favor of
or for giving consent to such action by such Direction of
Certificateholders to (B) the aggregate face amount of all Outstanding
Certificates and (ii) as Controlling Party, the Trustee shall vote as
directed in such Certificateholder Direction by the Certificateholders of
such series evidencing a Fractional Undivided Interest aggregating not less
than a majority in interest in the Trust. For purposes of the immediately
preceding sentence, a Certificate shall have been "actually voted" if the
Holder of such Certificate has delivered to the Trustee an instrument
evidencing such Holder's consent to such Direction prior to one Business
Day before the Trustee directs such action or casts such vote or gives such
consent. Notwithstanding the foregoing, but subject to Section 6.04 and any
Intercreditor Agreement, the Trustee may, with respect to the Certificates
of any series, in its own discretion and at its own direction, consent and
notify the relevant Loan Trustee of such consent (or direct the
Subordination Agent to consent and notify the Loan Trustee of such consent)
to any amendment, modification, waiver or supplement under any related
Indenture or any other related Note Document if an Event of Default
hereunder shall have occurred and be continuing or if such amendment,
modification, waiver or supplement will not materially adversely affect the
interests of the Certificateholders of such series.
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01. Termination of the Trusts. In respect of each Trust
created by the Basic Agreement as supplemented by a related Trust
Supplement, the respective obligations and responsibilities of the Company
and the Trustee with respect to such Trust shall terminate upon the
distribution to all Holders of Certificates of the series of such Trust and
the Trustee of all amounts required to be distributed to them pursuant to
this Agreement and the disposition of all property held as part of the
Trust Property of such Trust; provided, however, that in no event shall
such Trust continue beyond 21 years less one day following the death of the
last survivor of all descendants living on the date hereof of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇., unless applicable law shall permit a longer term, in which
case such longer term shall apply.
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 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,
if to the Company:
US Airways, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to the attention of the Buyer's Office of the General
Counsel at the same address:
Attention: Aircraft Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Trustee:
State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
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.
(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, and no interest shall accrue during the
intervening period.
Section 12.12. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which
counterparts shall constitute but one and the same instrument.
Section 12.13. Communication by Certificateholders With Other
Certificateholders. Certificateholders of any series may communicate with
other Certificateholders of such series with respect to their rights under
this Basic Agreement, the related Trust Supplement or the Certificates of
such series pursuant to Section 312(b) of the Trust Indenture Act. The
Company, the Trustee and any and all other persons benefitted by this
Agreement shall have the protection afforded by Section 312(c) of the Trust
Indenture Act.
Section 12.14. 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.
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.
US AIRWAYS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President,
Finance and Chief
Financial Officer
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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.(1)
-------------
(1) This legend to appear on Book-Entry Certificates to be deposited with
The Depository Trust Company.
US AIRWAYS ____________ PASS THROUGH TRUST
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 US Airways, 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 US Airways Pass Through Trust, Series [___] (the "Trust")
created by State Street Bank and Trust Company, 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 __________, ____(collectively, the "Agreement"), between the Trustee
and US Airways, 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 "___% US Airways Pass Through Certificate, Series ____"
(herein called the "Certificates"). This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement. By virtue
of its acceptance hereof, the Certificateholder of this Certificate assents
to and agrees to be bound by the provisions of the Agreement and any
related Intercreditor Agreement. The property of the Trust includes 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.
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 and no interest shall accrue
during the intervening period. The Trustee shall mail notice of each
Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Trustee by
check mailed to the Person entitled thereto, without the presentation or
surrender of this Certificate or the making of any notation hereon. Except
as otherwise provided in the Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after notice mailed by
the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency of the Trustee
specified in such notice.
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, the 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 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 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.
US AIRWAYS PASS THROUGH TRUST
By: STATE STREET BANK
AND TRUST COMPANY
as Trustee
By: __________________________
Title: _______________________
Dated: _________________
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates
referred to in the
within-mentioned Agreement.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: ______________________________
Authorized Officer