EXHIBIT 4.1
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PASS THROUGH TRUST AGREEMENT
Dated as of [ ], 1998
between
US AIRWAYS, INC.
and
STATE STREET BANK AND TRUST COMPANY,
as Trustee
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TABLE OF CONTENTS
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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
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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
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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
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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
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Reconciliation and tie between US Airways Pass Through Trust Agreement, dated
as of [ ], 1998 and the Trust Indenture Act of 1939. This
reconciliation does not constitute part of the Pass Through Trust Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
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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
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PASS THROUGH TRUST AGREEMENT
This PASS THROUGH TRUST AGREEMENT, dated as of [ ], 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. DEFININTIONS. 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
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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.
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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).
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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.
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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.
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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.
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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.
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POOL FACTOR: Means, with respect to any series of Certificates as
of any date, the quotient (rounded to the seventh decimal place) computed by
dividing (i) the Pool Balance of such series as at such date by (ii) the
original aggregate face amount of the Certificates of such series. The Pool
Factor as of any 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
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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
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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
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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.
SUBORDIANTION 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.
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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;
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case
where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters and any such Person may certify or give an
opinion as to such matters in one or several documents.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Basic Agreement or, in respect of the Certificates of
any series, this Agreement, they may, but need not, be consolidated and form
one instrument.
Section 1.04 DIRECTIONS OF CERTIFICATE HOLDERS. (a) Any direction,
consent, request, demand, authorization, notice, waiver or other action
provided by this Agreement 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.
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(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.
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(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);
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(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;
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(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 ACQUISTION OF EQ UIPMENT 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
18
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
19
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,
20
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.
21
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
22
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 represent-
23
ing 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
24
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
25
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
26
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.
27
(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
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(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,
29
(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
30
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.
31
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. SS
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.
SS 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
32
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,
33
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
34
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
35
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
36
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)
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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
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(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;
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(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
40
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
41
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.
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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.
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(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.
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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
45
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.
46
(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
47
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;
48
(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
49
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.
50
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).
51
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
52
(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
53
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.
54
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
55
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.
56
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
descendents 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
57
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
58
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.
59
(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.
60
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.
61
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:
-------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
-------------------------------
Name:
Title:
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EXHIBIT A
FORM OF CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.*
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 "Agree-
* This legend to appear on Book-Entry Certificates to be deposited with
The Depository Trust Company.
A-1
ment"), 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
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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.
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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.
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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:
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[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates
referred to in the
within-mentioned Agreement.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
------------------------
Authorized Officer
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