EXECUTION COPY
AMTRAN, INC.
AMERICAN TRANS AIR, INC.
and
WILMINGTON TRUST COMPANY
as Trustee
PASS THROUGH TRUST AGREEMENT
Dated as of December 23, 1997
American Trans Air 1997-1A-S Pass Through Trust
6.99% American Trans Air 1997-1A-S Pass Through Certificates
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.........................................................2
Section 1.01. Definitions.............................................2
Section 1.02. COMPLIANCE CERTIFICATES AND OPINIONS...................12
Section 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.................13
Section 1.04. ACTS OF CERTIFICATEHOLDERS.............................13
ARTICLE II ACQUISITION OF TRUST PROPERTY.....................................15
Section 2.01. [Intentionally omitted]................................15
Section 2.02. ACQUISITION OF TRUST PROPERTY..........................15
Section 2.03. ACCEPTANCE BY TRUSTEE.................................16
Section 2.04. LIMITATION OF POWERS..................................16
ARTICLE III THE CERTIFICATES..................................................16
Section 3.01. TITLE, FORM, DENOMINATION AND EXECUTION OF
CERTIFICATES.........................................................16
Section 3.02. RESTRICTIVE LEGENDS....................................18
Section 3.03. AUTHENTICATION OF CERTIFICATES.........................19
Section 3.04. TRANSFER AND EXCHANGE..................................19
Section 3.05. BOOK-ENTRY PROVISIONS FOR U.S. GLOBAL
CERTIFICATE AND OFFSHORE GLOBAL CERTICIATES......................20
Section 3.06. SPECIAL TRANSFER PROVISIONS............................22
Section 3.07. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES......24
Section 3.08. PERSONS DEEMED OWNERS..................................25
Section 3.09. CANCELLATION...........................................25
Section 3.10. LIMITATION OF LIABILITY FOR PAYMENTS...................25
Section 3.11. TEMPORARY CERTIFICATES.................................25
ARTICLE IV DISTRIBUTIONS; STATEMENTS TO......................................26
Section 4.01. CERTIFICATE ACCOUNT AND SPECIAL PAYMENTS ACCOUNT.......26
Section 4.02. DISTRIBUTIONS FROM CERTIFICATE ACCOUNT AND SPECIAL
PAYMENTS ACCOUNT.....................................................26
Section 4.03. STATEMENTS TO CERTIFICATEHOLDERS.......................28
Section 4.04. INVESTMENT OF SPECIAL PAYMENT MONEYS...................29
ARTICLE V THE COMPANY........................................................30
Section 5.01. MAINTENANCE OF CORPORATE EXISTENCE.....................30
Section 5.02. CONSOLIDATION, MERGER, ETC.............................30
Section 5.03. RULE 144A(D)(4) INFORMATION...........................31
ARTICLE VI DEFAULT...........................................................31
Section 6.01. EVENTS OF DEFAULT......................................31
Section 6.02. INCIDENTS OF SALE OF EQUIPMENT NOTES...................33
Section 6.03. JUDICIAL PROCEEDINGS INSTITUTED BY TRUSTEE; TRUSTEE
MAY BRING SUIT.......................................................34
Section 6.04. CONTROL BY CERTIFICATEHOLDERS..........................34
Section 6.05. WAIVER OF PAST DEFAULTS................................34
Section 6.06. RIGHT OF CERTIFICATEHOLDERS TO RECEIVE PAYMENTS NOT
TO BE IMPAIRED.......................................................35
Section 6.07. CERTIFICATEHOLDERS MAY NOT BRING SUIT EXCEPT UNDER
CERTAIN CONDITIONS...................................................35
Section 6.08. REMEDIES CUMULATIVE....................................36
Section 6.09. UNDERTAKING FOR COSTS..................................36
ARTICLE VII THE TRUSTEE......................................................36
Section 7.01. NOTICE OF DEFAULTS.....................................36
Section 7.02. CERTAIN RIGHTS OF TRUSTEE..............................37
Section 7.03. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
CERTIFICATES.........................................................38
Section 7.04. MAY HOLD CERTIFICATES..................................38
Section 7.05. MONEY HELD IN TRUST....................................38
Section 7.06. COMPENSATION AND REIMBURSEMENT.........................39
Section 7.07. CORPORATE TRUSTEE REQUIRED, ELIGIBILITY................40
Section 7.08. RESIGNATION AND REMOVAL: APPOINTMENT OF SUCCESSOR......40
Section 7.09. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.................42
Section 7.10. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.............................................................42
Section 7.11. MAINTENANCE OF AGENCIES................................43
Section 7.12. MONEY FOR CERTIFICATE PAYMENTS TO BE HELD IN TRUST.....44
Section 7.13. REGISTRATION OF EQUIPMENT NOTES IN NAME OF
SUBORDINATION AGENT............................44
Section 7.14. REPRESENTATIONS AND WARRANTIES OF TRUSTEE..............44
Section 7.15. WITHHOLDING TAXES, INFORMATION REPORTING...............45
Section 7.16. TRUSTEE'S LIENS........................................46
Section 7.17. PREFERENTIAL COLLECTION OF CLAIMS......................46
ARTICLE VIII CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE................46
Section 8.01. THE COMPANY TO FURNISH TRUSTEE WITH NAMES AND
ADDRESSES OF CERTIFICATEHOLDERS......................................46
Section 8.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
CERTIFICATEHOLDERS...................................................47
Section 8.03. REPORTS BY TRUSTEE.....................................47
Section 8.04. REPORTS BY THE GUARANTOR AND COMPANY...................47
ARTICLE IX SUPPLEMENTAL AGREEMENTS...........................................48
Section 9.01. SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF
CERTIFICATEHOLDERS...................................................48
Section 9.02. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF
CERTIFICATEHOLDERS...................................................49
Section 9.03. DOCUMENTS AFFECTING IMMUNITY OR INDEMNITY..............50
Section 9.04. EXECUTION OF SUPPLEMENTAL AGREEMENTS...................50
Section 9.05. EFFECT OF SUPPLEMENTAL AGREEMENTS......................51
Section 9.06. CONFORMITY WITH TRUST INDENTURE ACT....................51
Section 9.07. REFERENCE IN CERTIFICATES TO SUPPLEMENTAL AGREEMENTS...51
ARTICLE X AMENDMENTS TO INDENTURES AND NOTE DOCUMENTS........................51
Section 10.01. AMENDMENTS AND SUPPLEMENTS TO INDENTURES AND OTHER
NOTE DOCUMENTS........................................51
ARTICLE XI TERMINATION OF TRUSTS.............................................52
Section 11.01. TERMINATION OF THE TRUST..............................52
ARTICLE XII MISCELLANEOUS PROVISIONS.........................................53
Section 12.01. LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS............53
Section 12.02. LIABILITIES OF CERTIFICATEHOLDERS.....................53
Section 12.03. CERTIFICATES NONASSESSABLE AND FULLY PAID.............53
Section 12.04. [Intentionally omitted]...............................53
Section 12.05. NOTICES...............................................54
Section 12.06. GOVERNING LAW.........................................55
Section 12.07. SEVERABILITY OF PROVISIONS............................55
Section 12.08. [Intentionally omitted]...............................55
Section 12.09. EFFECT OF HEADINGS AND TABLE OF CONTENTS..............55
Section 12.10. SUCCESSORS AND ASSIGNS................................55
Section 12.11. BENEFITS OF AGREEMENT.................................55
Section 12.12. LEGAL HOLIDAYS........................................55
Section 12.13. COUNTERPARTS..........................................55
Section 12.14. COMMUNICATION BY CERTIFICATEHOLDERS WITH OTHER
CERTIFICATEHOLDERS...................................................56
Section 12.15. INTENTION OF PARTIES.................................56
Exhibit A - Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Regulation S
Exhibit B - Form of Certificate to be Delivered in Connection with
Transfers to Non-QIB Accredited Investors
Exhibit C - Form of Assignment and Assumption Agreement
Exhibit D - Form of Certificate to be Delivered in Connection with
Transfers to QIBs
.........This PASS THROUGH TRUST AGREEMENT, dated as of December 23, 1997,
among AMTRAN, INC., an Indiana corporation (the "Guarantor"), AMERICAN TRANS
AIR, INC., an Indiana corporation (the "Company"), and WILMINGTON TRUST COMPANY,
a Delaware banking corporation, as Trustee, is made with respect to the
formation of the American Trans Air 1997-1A-S Pass Through Trust, and the
issuance of 6.99% American Trans Air 1997-1A-S Pass Through Certificates
representing fractional undivided interests in the Trust.
WITNESSETH:
.........WHEREAS, the Company has obtained commitments from The Boeing
Company for the delivery of certain Aircraft;
.........WHEREAS, as of the Transfer Date (as defined below) the Company
will have financed the acquisition of all or a portion of such Aircraft either
(i) through separate leveraged lease transactions in which the Company leases
such aircraft (collectively, the "LEASED AIRCRAFT") or (ii) through separate
secured loan transactions in which the Company owns such Aircraft (collectively,
the "OWNED AIRCRAFT");
.........WHEREAS, as of the Transfer Date (as defined below) in the case of
each Leased Aircraft, each Owner Trustee, acting on behalf of the corresponding
Owner Participant, will have issued pursuant to an Indenture, on a non-recourse
basis, three series of Equipment Notes in order to finance a portion of the
purchase price of each such Leased Aircraft;
.........WHEREAS, as of the Transfer Date (as defined below) in the case of
each Owned Aircraft, the Company, will have issued pursuant to an Indenture, on
a recourse basis, three series of Equipment Notes to finance a portion of the
purchase price of each such Owned Aircraft;
.........WHEREAS, as of the Transfer Date, the Related Trustee will assign,
transfer and deliver all of such trustee's right, title and interest to the
trust property held by the Related Trustee to the Trustee pursuant to the
Assignment and Assumption Agreement (as defined below);
.........WHEREAS, the Trustee, effectively only, but automatically, upon
execution and delivery of the Assignment and Assumption Agreement, will be
deemed to have declared the creation of this Trust (the "1997-1A-S Trust") for
the benefit of the Certificateholders, and each Holder of Certificates
outstanding as of the Transfer Date, as the grantors of the 1997-1A-S Trust, by
their respective acceptances of the Certificates, will join in the creation of
this 1997-1A-S Trust with the Trustee;
.........WHEREAS, except for those Certificates to which an Escrow Receipt
(as defined below) has been affixed, all Certificates deemed issued by the Trust
will evidence fractional undivided interests in the Trust and will convey no
rights, benefits or interests in respect of any property other than the Trust
Property;
.........WHEREAS, 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 pursuant hereto, and as the "obligor", as such term is
defined in and solely for purposes of the Trust Indenture Act of 1939, as
amended, and (ii) the Guarantor have each duly authorized the execution,
delivery and effectiveness of this Agreement with respect to all such
Certificates and are undertaking to perform certain administrative and
ministerial duties hereunder and are also undertaking to pay the fees and
expenses of the Trustee; and
.........WHEREAS, upon the execution and delivery of the Assignment and
Assumption Agreement, all of the conditions and requirements necessary to make
this Agreement a valid, binding and legal instrument, enforceable in accordance
with its terms and for the purposes herein expressed, will have been done,
performed and fulfilled, and the execution and delivery of this Agreement in the
form and with the terms hereof will have been in all respects duly authorized;
.........NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
.........Section 1.01. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms used herein that are defined in this Article have the
meanings assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference herein, have the meanings assigned to them
therein;
(3) all references in this Agreement to designated "Articles", "Sections"
and other subdivisions are to the designated Articles, Sections and other
subdivisions of this Agreement;
(4) the words "herein", "hereof' and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular Article,
Section or other subdivision; and
(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".
ACT: With respect to any Certificateholder has the meaning specified in
Section 1.04.
AFFILIATE: With respect to any specified Person, means any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such Person. For the purposes of this
definition, "control", when used with respect to any specified Person, means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
AGENT MEMBERS: Has the meaning specified in Section 3.05(a).
AIRCRAFT: means each of the Aircraft or Substitute Aircraft in respect of
which a Participation Agreement is entered into in accordance with the Note
Purchase Agreement.
ASSIGNMENT AND ASSUMPTION AGREEMENT: Means the assignment and assumption
agreement substantially in the form of Exhibit D to the Related Pass Through
Trust Agreement executed and delivered in accordance with Section 11.01 thereof.
AUTHORIZED AGENT: Means any Paying Agent or Registrar for the Certificates.
AVOIDABLE TAX: Has the meaning specified in Section 7.08(e) hereof.
BOOK-ENTRY CERTIFICATES: With respect to the Certificates, means a
beneficial interest in the Certificates, ownership and transfers of which shall
be made through book entries as described in Section 3.04.
BUSINESS DAY: Means any day other than a Saturday, a Sunday or a day on
which commercial banks are required or authorized to close in Indianapolis,
Indiana; New York, New York; or Phoenix, Arizona; and, so long as any such
Certificate is outstanding, a city and state in which the Trustee or any related
Loan Trustee maintains its Corporate Trust Office or receives and disburses
funds.
CEDEL: Means Cedel Bank societe anonyme.
CERTIFICATE: Means any one of the certificates issued by the Related Trust
and that are "Outstanding" (as defined in the Related Pass Through Trust
Agreement) as of the Transfer Date (the "Transfer Date Certificates") and any
such certificate issued in exchange therefor or replacement thereof pursuant to
this Agreement.
CERTIFICATE ACCOUNT: Means the account or accounts created and maintained
pursuant to Section 4.01(a).
CERTIFICATEHOLDER OR HOLDER: Means the Person in whose name a Certificate
is registered in the Register.
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 American Trans Air, Inc., an Indiana corporation, or its
successor in interest pursuant to Section 5.02.
CONTROLLING PARTY: Means the Person entitled to act as such pursuant to the
terms of the Intercreditor Agreement.
CORPORATE TRUST OFFICE: With respect to the Trustee or any Loan Trustee,
means the office of such trustee in the city at which at any particular time its
corporate trust business shall be principally administered.
DELIVERY PERIOD TERMINATION DATE: Has the meaning specified in Annex A to
the Note Purchase Agreement.
DEPOSIT AGREEMENT: Means the Deposit Agreement (Class A) dated as of
December 23, 1997 relating to the Certificates, between the Depositary and the
Escrow Agent, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with its terms.
DEPOSITARY: Means NBD Bank, National Association, a national banking
association.
DEPOSITS: Has the meaning specified in the Deposit Agreement.
DIRECTION: Has the meaning specified in Section 1.04(c).
DISTRIBUTION DATE: Means each Regular Distribution Date and each Special
Distribution Date.
DTC: Means The Depository Trust Company, its nominees and their respective
successors.
EQUIPMENT NOTE: Means the "Secured Certificates" as defined in the
Indentures.
ERISA: Means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor federal statute.
ESCROW AGENT: Means, initially, First Security Bank, National Association,
and any replacement or successor therefor appointed in accordance with the
Escrow Agreement.
ESCROW AGREEMENT: Means the Escrow and Paying Agent Agreement (Class A)
dated as of December 23, 1997 relating to the Certificates, among the Escrow
Agent, the Escrow Paying Agent, the Related Trustee (and after the Transfer
Date, the Trustee) and the Initial Purchasers, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
ESCROW PAYING AGENT: Means the Person acting as paying agent under the
Escrow Agreement.
ESCROW RECEIPT: Means the receipt substantially in the form annexed to the
Escrow Agreement representing a fractional undivided interest in the funds held
in escrow thereunder.
EUROCLEAR: Means the Euroclear System.
EVENT OF DEFAULT: Means the occurrence of an Indenture Default under any
Indenture pursuant to which Equipment Notes held by the Trust were issued.
FINAL WITHDRAWAL: Has the meaning specified in the Escrow Agreement.
FINAL WITHDRAWAL DATE: Has the meaning specified in the Escrow Agreement.
FRACTIONAL UNDIVIDED INTEREST: Means the fractional undivided interest in
the Trust that is evidenced by a Certificate.
GLOBAL CERTIFICATES: Has the meaning assigned to such term in Section 3.01.
GUARANTOR: Means Amtran, Inc., an Indiana corporation, or its successor in
interest.
INDENTURE: Means each of the three separate trust indenture and security
agreements relating to the Aircraft, each entered into pursuant to the related
Participation Agreement, in each case as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
INDENTURE DEFAULT: With respect to any Indenture, means any Event of
Default (as such term is defined in such Indenture).
INITIAL PURCHASERS: Means Salomon Brothers Inc and Furman Selz LLC,
collectively.
INITIAL REGULAR DISTRIBUTION DATE: Means the first Regular Distribution
Date on which a Scheduled Payment is to be made.
INSTITUTIONAL ACCREDITED INVESTOR: Means an institutional investor that is
an "accredited investor" within the meaning set forth in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act.
INTERCREDITOR AGREEMENT: Means the Intercreditor Agreement dated December
23, 1997 among the Related Trustee (and after the Transfer Date, the Trustee),
the Related Other Trustees (and after the Transfer Date, the Other Trustees),
the Liquidity Provider, the liquidity providers, if any, relating to the
Certificates issued under (and as defined in) the Related Other Pass Through
Trust Agreements, and Wilmington Trust Company, as Subordination Agent
thereunder, as amended, supplemented or otherwise modified from time to time in
accordance with its terms.
ISSUANCE DATE: Means the date of the issuance of the Certificates.
LEASE: Means any lease between an Owner Trustee, as the lessor, and the
Company, as the lessee, referred to in the related Indenture, as each such lease
may be amended or supplemented in accordance with its respective terms; and
LEASES means all such leases.
LEASED AIRCRAFT: Has the meaning specified in the second recital to this
Agreement.
LETTER OF REPRESENTATIONS: Means the agreement dated the Issuance Date
among the Company, the Trustee and the initial Clearing Agency.
LIQUIDITY FACILITY: Means the Irrevocable Revolving Credit Agreement Class
A Certificates dated December 23, 1997 relating to the Certificates between the
Liquidity Provider and the Subordination Agent, as amended, replaced,
supplemented or otherwise modified from time to time in accordance with its
terms and the terms of the Intercreditor Agreement.
LIQUIDITY PROVIDER: Means, initially, ING Bank, a Dutch bank, and any
replacement or successor therefor appointed in accordance with the Liquidity
Facility and the Intercreditor Agreement.
LOAN TRUSTEE: With respect to any Equipment Note or the Indenture
applicable thereto, means the bank or trust company designated as loan or
indenture trustee under such Indenture; and any successor to such Loan Trustee
as such trustee; and LOAN TRUSTEES means all of the Loan Trustees under the
Indentures.
NON-U.S. PERSON: Means a Person that is not a U.S. Person as defined in
Regulation S.
NOTE DOCUMENTS: With respect to any Equipment Note, means the related
Indenture, Lease (if the related Aircraft is leased to the Company) and
Participation Agreement.
NOTE PURCHASE AGREEMENT: Means the Note Purchase Agreement dated as of
December 23, 1997 among the Related Trustee (and after the Transfer Date, the
Trustee), the Related Other Trustees (and after the Transfer Date, the Other
Trustees), the Company, the Escrow Agent, the Escrow Paying Agent and the
Subordination Agent, as the same may be amended, supplemented or otherwise
modified from time to time, in accordance with its terms.
OFFERING MEMORANDUM: Means the Offering Memorandum dated December 17, 1997
relating to the offering of the Certificates and the certificates issued under
the Related Other Pass Through Trust Agreements.
OFFICER'S CERTIFICATE: Means a certificate signed (a) in the case of the
Guarantor or the Company, by (i) the President or any Executive Vice President
or Senior Vice President of the Guarantor or the Company, respectively, signing
alone or (ii) any Vice President of the Guarantor or the Company signing
together with the Secretary, the Assistant Secretary, the Treasurer or any
Assistant Treasurer of the Guarantor or the Company, respectively, 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.
OFFSHORE GLOBAL CERTIFICATES: Has the meaning assigned to such term in
Section 3.01.
OFFSHORE PHYSICAL CERTIFICATES: Has the meaning assigned to such term in
Section 3.01.
OPINION OF COUNSEL: Means a written opinion of legal counsel who (a) in the
case of counsel for the Guarantor or the Company, may be (i) a senior attorney
in rank of the officers of the Guarantor or the Company a principal duty of
which is furnishing advice as to legal matters or (ii) such other counsel
designated by the Guarantor or 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 PASS THROUGH TRUST AGREEMENT: Means (i) the American Trans Air
1997-1B-S Pass Through Trust Agreement relating to the American Trans Air
1997-1B-S Pass Through Trust, and (ii) the American Trans Air 1997-1C-S Pass
Through Trust Agreement relating to the American Trans Air 1997-1C-S Pass
Through Trust, each dated the date hereof; and OTHER PASS THROUGH TRUST
AGREEMENTS means all such agreements.
OTHER TRUSTEE: Means the trustee under each of the Other Pass Through Trust
Agreements, and any successor or other trustee appointed as provided therein and
Other Pass Through Trustees means both such trustees.
OTHER TRUSTS: Means the American Trans Air 1997-1B-S Pass Through Trust and
the American Trans Air 1997-1C-S Pass Through Trust.
OUTSTANDING: With respect to Certificates, means, as of the date of
determination, all Transfer Date Certificates, and all other Certificates
theretofore authenticated and delivered under this Agreement, in each case
except:
(i) Certificates theretofore canceled by the Registrar or delivered to the
Trustee or the Registrar for cancellation;
(ii) All of the Certificates if money in the full amount required to make
the final distribution with respect thereto pursuant to Section 11.01 hereof has
been theretofore deposited with the Trustee in trust for the Holders of such
Certificates as provided in Section 4.01 pending distribution of such money to
such Certificateholders pursuant to such final distribution payment; and
(iii) Certificates in exchange for or in lieu of which other Certificates
have been authenticated and delivered pursuant to this Agreement.
OWNED AIRCRAFT: Has the meaning specified in the second recital to this
Agreement.
OWNER PARTICIPANT: With respect to any Equipment Note, means the "Owner
Participant" as referred to in the Indenture pursuant to which such Equipment
Note is issued and any permitted successor or assign of such Owner Participant;
and Owner Participants at any time of determination means all of the Owner
Participants thus referred to in the Indentures.
OWNER TRUSTEE: With respect to any Equipment Note, means the "Owner
Trustee", as referred to in the Indenture pursuant to which such Equipment Note
is issued, not in its individual capacity but solely as trustee; and Owner
Trustees means all of the Owner Trustees party to any of the respective
Indentures.
PARTICIPATION AGREEMENT: Means each Participation Agreement to be entered
into by the Related Trustee and the Related Other Trustees pursuant to the Note
Purchase Agreement, as the same may be amended, supplemented or otherwise
modified in accordance with its terms; and PARTICIPATION AGREEMENTS means all
such agreements.
PAYING AGENT: Means the paying agent maintained and appointed for the
Certificates pursuant to Section 7.11.
PERMITTED INVESTMENTS: Means obligations of the United States of America or
agencies or instrumentalities thereof for the payment of which the full faith
and credit of the United States of America is pledged, maturing in not more than
60 days or such lesser time as is necessary for payment of any Special Payments
on a Special Distribution Date.
PERSON: Means any person, including any individual, corporation,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
PHYSICAL CERTIFICATES: Has the meaning specified in Section 3.01.
POOL BALANCE: Means, as of any date, (i) the original aggregate face amount
of the "Certificates" as defined in the Related Pass Through Trust Agreement
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 less
(iii) the aggregate amount of unused Deposits distributed as a Final Withdrawal
other than payments in respect of interest or premium thereon. 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 and the
distribution of the Final Withdrawal to be made on such Distribution Date.
POOL FACTOR: Means, as of any date, the quotient (rounded to the seventh
decimal place) computed by dividing (i) the Pool Balance as at such date by (ii)
the original aggregate face amount of the "Certificates" as defined in the
Related Pass Through Trust Agreement. The Pool Factor as of any Distribution
Date shall be computed after giving effect to the payment of principal, if any,
on the Equipment Notes or other Trust Property and the distribution thereof to
be made on such Distribution Date and the distribution of the Final Withdrawal
to be made on such Distribution Date.
PRIVATE PLACEMENT LEGEND: Has the meaning specified in Section 3.02.
PTC EVENT OF DEFAULT: Means any failure to pay within 10 Business Days of
the due date thereof: (i) the outstanding Pool Balance on October 15, 2018 or
(ii) interest due on the Certificates on any Distribution Date (unless the
Subordination Agent shall have made an Interest Drawing (as defined in the
Intercreditor Agreement) or a withdrawal or withdrawals from a cash collateral
account pursuant to Section 3.6(f) of the Intercreditor Agreement, with respect
thereto in an amount sufficient to pay such interest and shall have distributed
such amount to the Certificateholders).
PURCHASE AGREEMENT: Means the Purchase Agreement dated December 17, 1997
among the Initial Purchasers, the Company and the Depositary, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
its terms.
QIB: Means a qualified institutional buyer as defined in Rule 144A.
RECORD DATE: Means (i) for Scheduled Payments to be distributed on any
Regular Distribution Date, other than the final distribution, 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, the 15th day (whether or not a Business Day)
preceding such Special Distribution Date.
REGISTER and REGISTRAR: Mean the register maintained and the registrar
appointed pursuant to Sections 3.04 and 7.11.
REGULAR DISTRIBUTION DATE: With respect to distributions of Scheduled
Payments in respect of the Certificates, means each date designated as such in
this Agreement, until payment of all the Scheduled Payments to be made under the
Equipment Notes held in the Trust has been made; PROVIDED, HOWEVER, that, if any
such day shall not be a Business Day, the related distribution shall be made on
the next succeeding Business Day without additional interest.
REGULATION S RESTRICTED DATE: Means the date 40-days after the later of the
commencement of the initial offering of the Certificates and the date of initial
issuance thereof.
RELATED OTHER PASS THROUGH TRUST AGREEMENTS: Means the "Other Pass Through
Trust Agreements" as defined in the Related Pass Through Trust Agreement.
RELATED OTHER TRUSTS: Means the "Other Trustees" as defined in the Related
Pass Through Trust Agreement.
RELATED OTHER TRUSTS: Means the "Other Trusts" as defined in the Related
Pass Through Trust Agreement.
RELATED PASS THROUGH TRUST AGREEMENT: Means the American Trans Air
1997-1A-O Pass Through Trust Agreement relating to the American Trans Air
1997-1A-O Pass Through Trust, dated as of December 23, 1997, between the Company
and the institution acting as trustee thereunder as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
RELATED TRUST: Means the American Trans Air 1997-1A-O Pass Through Trust,
formed under the Related Pass Through Trust Agreement.
RELATED TRUSTEE: Means the institution serving as the trustee under the
Related Pass Through Trust Agreement.
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 Agreement.
RESPONSIBLE OFFICER: With respect to the Trustee, any Loan Trustee and any
Owner Trustee, means any officer in the Corporate Trust Division 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.
RULE 144A: Means Rule 144A under the Securities Act and any successor
regulation thereto.
SCHEDULED PAYMENT: With respect to any Equipment Note, means any payment of
principal and interest on such Equipment Note or any payment of interest on the
Certificates with funds drawn under the Liquidity Facility (other than any such
payment which is not in fact received by the Trustee or any Subordination Agent
within five days of the date on which such payment is scheduled to be made) due
from the obligor thereon which payment represents the installment of principal
at the stated maturity of such installment of principal on such Equipment Note,
the payment of regularly scheduled interest accrued on the unpaid principal
amount of such Equipment Note, or both; PROVIDED that any payment of principal,
premium, if any, or interest resulting from the redemption or purchase of any
Equipment Note shall not constitute a Scheduled Payment.
SEC: Means the Securities and Exchange Commission as from time to time
constituted or created under the Securities Exchange Act of 1934, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
SECURITIES ACT: Means the United States Securities Act of 1933, as amended
from time to time, or any successor thereto.
SPECIAL DISTRIBUTION DATE: Means each date on which a Special Payment is to
be distributed as specified in this Agreement; PROVIDED, HOWEVER, that, if any
such day shall not be a Business Day, the related distribution shall be made on
the next succeeding Business Day without additional interest.
SPECIAL PAYMENT: Means any payment (other than a Scheduled Payment) in
respect of, or any proceeds of, any Equipment Note or Trust Indenture Estate (as
defined in each Indenture) or Special Redemption Premium (if applicable).
SPECIAL PAYMENTS ACCOUNT: Means the account or accounts created and
maintained pursuant to Section 4.01(b).
SPECIAL REDEMPTION PREMIUM: Means the premium, if any, payable by the
Company in respect of the Final Withdrawal pursuant to the Note Purchase
Agreement.
SUBORDINATION AGENT: Shall have the meaning specified therefor in the
Intercreditor Agreement.
SUBSTITUTE AIRCRAFT: Has the meaning specified in the Note Purchase
Agreement.
TRANSFER DATE: Means the moment of execution and delivery of the Assignment
and Assumption Agreement by each of the parties thereto.
TRANSFER DATE CERTIFICATES: Has the meaning specified in the definition of
"Certificates".
TRUST: Means the trust created by this Agreement, the estate of which
consists of Trust Property.
TRUST INDENTURE ACT: Except as otherwise provided in Section 9.06, means
the Trust Indenture Act of 1939 as in force at the date as of which this
Agreement was executed.
TRUST PROPERTY: Means (i) the Equipment Notes held as the property of the
Trust, all monies at any time paid thereon and all monies due and to become due
thereunder, (ii) the rights of the Trust and the Trustee, on behalf of the
Trust, under the Intercreditor Agreement, the Escrow Agreement, the Note
Purchase Agreement and the Liquidity Facilities, including, without limitation,
all monies receivable in respect of such rights, PROVIDED that rights with
respect to the Deposits or under the Escrow Agreement will not constitute Trust
Property, and (iii) funds from time to time deposited in the Certificate Account
and the Special Payments Account and, subject to the Intercreditor Agreement,
any proceeds from the sale by the Trustee pursuant to Article VI hereof of any
such Equipment Note.
TRUSTEE: Means Wilmington Trust Company, or its successor in interest, and
any successor trustee appointed as provided herein.
U.S. GLOBAL CERTIFICATE: Has the meaning specified in Section 3.01.
U.S. PHYSICAL CERTIFICATES: Has the meaning specified in Section 3.01.
Section 1.02. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company, any Owner Trustee or any Loan Trustee to
the Trustee to take any action under any provision of this Agreement, the
Company, such Owner Trustee or such Loan Trustee, as the case may be, shall
furnish to the Trustee an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this Agreement
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this 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 Agreement (other than a certificate
provided pursuant to Section 8.04(d)) shall include:
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions in this Agreement
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
Section 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any Opinion of Counsel stated to be based on the opinion of
other counsel shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, they may, but need not, be consolidated
and form one instrument.
Section 1.04. ACTS OF CERTIFICATEHOLDERS.
--------------------------
(a) Any direction, consent, waiver or other action provided by
this Agreement to be given or taken by Certificateholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Certificateholders in person or by an agent or proxy duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required pursuant to this Agreement,
to the Company or any 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 shall be sufficient for any purpose of this Agreement and conclusive in
favor of the Trustee, the Company and any Loan Trustee, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the certificate of any notary public
or other officer of any jurisdiction authorized to take acknowledgments of deeds
or administer oaths that the Person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or such other officer and where such execution
is by an officer of a corporation or association or a member of a partnership,
on behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing 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 Outstanding have given
any direction, consent or waiver (a "Direction"), under this Agreement,
Certificates owned by the Company, the Guarantor, any Owner Trustee, any Owner
Participant or any Affiliate of any such Person shall be disregarded and deemed
not to be Outstanding for purposes of any such determination. In determining
whether the Trustee shall be protected in relying upon any such Direction, only
Certificates which the Trustee knows to be so owned shall be so disregarded.
Notwithstanding the foregoing, (i) if any such Person owns 100% of the
Certificates Outstanding, such Certificates shall not be so disregarded as
aforesaid, and (ii) if any amount of Certificates so owned by any such Person
have been pledged in good faith, such Certificates shall not be disregarded as
aforesaid if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Certificates and that the pledgee
is not the Company, the Guarantor, any Owner Trustee, any Owner Participant or
any Affiliate of any such Person.
(d) The Company may, at its option by delivery of an Officer's
Certificate to the Trustee, set a record date to determine the
Certificateholders entitled to give any consent, request, demand, authorization,
direction, notice, waiver or other Act. Notwithstanding Section 316(c) of the
Trust Indenture Act, such record date shall be the record date specified in such
Officer's Certificate which shall be a date not more than 30 days prior to the
first solicitation of Certificateholders in connection therewith. If such a
record date is fixed, such consent request, demand, authorization, direction,
notice, waiver or other Act may be given before or after such record date, but
only the Certificateholders of record 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 have authorized or agreed or consented to such consent, request,
demand, authorization, direction, notice, waiver or other Act, and for that
purpose the Outstanding Certificates shall be computed as of such record date;
PROVIDED that no such consent, request, demand, authorization, direction,
notice, waiver or other Act by the Certificateholders on such record date shall
be deemed effective unless it shall become effective pursuant to the provisions
of this Agreement not later than one year after the record date.
(e) Any direction, consent, waiver or other action by the
Certificateholder of any Certificate shall bind the Certificateholder of every
Certificate issued upon the transfer thereof or in exchange therefor or in lieu
thereof, whether or not notation of such action is made upon such Certificate.
(f) Except as otherwise provided in Section 1.04(c),
Certificates 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.
ARTICLE II
ACQUISITION OF TRUST PROPERTY
Section 2.01. [Intentionally omitted].
Section 2.02. ACQUISITION OF TRUST PROPERTY. The Trustee is
hereby irrevocably authorized and directed to execute and deliver the Assignment
and Assumption Agreement on the date specified in Section 11.01 of the Related
Pass Through Trust Agreement, subject only to the satisfaction of the conditions
to such execution set forth in said Section 11.01. This Agreement (except only
for the immediately preceding sentence hereof, which is effective upon execution
and delivery hereof) shall become effective upon the execution and delivery of
the Assignment and Assumption Agreement by the Trustee and the Related Trustee,
automatically and without any further signature or action on the part of the
Company and the Trustee, and shall thereupon constitute the legal, valid and
binding obligation of the parties hereto enforceable against each of the parties
hereto in accordance with its terms. Upon such execution and delivery of the
Assignment and Assumption Agreement, the Related Trust shall be terminated, the
Certificateholders shall receive beneficial interests in the Trust in exchange
for their interests in the Related Trust equal to their respective beneficial
interests in the Related Trust and the "Outstanding" (as defined in the Related
Pass Through Trust Agreement) pass through certificates representing fractional
undivided interests in the Related Trust shall be deemed for all purposes of
this Agreement and the Related Pass Through Trust Agreement, without further
signature or action of any party or Certificateholder, to be Certificates
representing the same Fractional Undivided Interests in the Trust and the Trust
Property. By acceptance of its Certificate, each Certificateholder consents to
and ratifies such assignment, transfer and delivery of the trust property of the
Related Trust to the Trustee upon the execution and delivery of the Assignment
and Assumption Agreement.
Section 2.03. ACCEPTANCE BY TRUSTEE. The Trustee, upon the
execution and delivery of the Assignment and Assumption Agreement, acknowledges
its acceptance of all right, title, and interest in and to the Trust Property
and declares that the Trustee holds and will hold such right, title, and
interest for the benefit of all then present and future Certificateholders, upon
the trusts herein set forth. By the acceptance of each Certificate issued to it
under the Related Pass Through Trust Agreement and deemed issued under this
Agreement, each Holder of any such Certificate as grantor of the Trust thereby
joins in the creation and declaration of the Trust.
Section 2.04. LIMITATION OF POWERS. The Trust is constituted
solely for the purpose of making the investment in the Equipment Notes, 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 restrictions acquiring the
Aircraft (as defined in the respective 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. TITLE, FORM, DENOMINATION AND EXECUTION OF CERTIFICATES.
-------------------------------------------------------
(a) The Certificates shall be known as the "6.99% 1997-1A-S
Pass Through Certificates" of the Trust. Each Certificate will represent a
fractional undivided interest in the Trust and shall be substantially in the
form set forth as Exhibit A to the Related Pass Through Trust Agreement, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by the Related Pass Through Trust Agreement or this
Agreement, as the case may be, or as the Trustee may deem appropriate to reflect
the fact that the Certificates are being issued hereunder as opposed to the
Related Pass Through Trust 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 or as may,
consistently herewith, be determined by the officers executing such
Certificates, as evidenced by their execution of the Certificates. Any portion
of the text of any Certificate may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Certificate. At the Escrow
Agent's request under the Escrow Agreement, the Trustee shall affix the
corresponding Escrow Receipt to any Certificate issued hereunder. Any transfer
or exchange of any Certificate shall also effect a transfer or exchange of the
related Escrow Receipt. Prior to the Final Withdrawal Date, no transfer or
exchange of any Certificate shall be permitted unless the corresponding Escrow
Receipt is attached thereto and also is so transferred or exchanged. By
acceptance of any Certificate to which an Escrow Receipt is attached, each
Holder of such Certificate acknowledges and accepts the restrictions on transfer
of the Escrow Receipt set forth herein and in the Escrow Agreement.
(b) The Certificates shall be issued only in fully registered
form without coupons and only in denominations of $100,000 or integral multiples
of $1,000 in excess thereof, except that one Certificate may be issued in a
denomination of less than $100,000. Each Certificate shall be dated the date of
its authentication. The aggregate Fractional Undivided Interest of Certificates
shall not at any time exceed $63,105,000.
(c) Certificates offered and sold in reliance on Rule 144A
shall be issued initially in the form of a single permanent global Certificate
in registered form, substantially in the form set forth as Exhibit A to the
Related Pass Through Trust Agreement with such applicable legends as are
provided for in clauses (a) and (b) of Section 3.02 (the "U.S. Global
Certificate"). The U.S. Global Certificate will be registered in the name of a
nominee for DTC and deposited with the Trustee, as custodian for DTC. The
aggregate principal amount of the U.S. Global Certificate may from time to time
be increased or decreased by adjustments made on the records of DTC or its
nominee, or of the Trustee, as custodian for the DTC or its nominee, as
hereinafter provided.
(d) Certificates offered and sold in offshore transactions in
reliance on Regulation S shall be issued in the form of a single global
Certificate in registered form, substantially in the form set forth as Exhibit A
to the Related Pass Through Trust Agreement with such applicable legends as are
provided for in clause (b) of Section 3.02 (the "Offshore Global Certificate").
The Temporary Offshore Global Certificate will be registered in the name of a
nominee of DTC for credit to the account of the Agent Members acting as
depositories for Euroclear and Cedel and deposited with the Trustee as custodian
for DTC. The U.S. Global Certificate and the Offshore Global Certificates are
sometimes referred to as the "Global Certificates".
(e) Certificates offered and sold to Institutional Accredited
Investors shall be issued in the form of permanent certificated Certificates in
registered form in substantially the form set forth as Exhibit A to the Related
Pass Through Trust Agreement with such applicable legends as are provided for in
clauses (a) and (b) of Section 3.02 hereto (the "U.S. Physical Certificates").
Certificates issued pursuant to Section 3.05(b) in exchange for interests in any
Offshore Global Certificate shall be in the form of permanent certificated
Certificates in registered form substantially in the form set forth in Exhibit A
(the "Offshore Physical Certificates"). The Offshore Physical Certificates and
U.S. Physical Certificates are sometimes collectively herein referred to as the
"Physical Certificates".
(f) The definitive Certificates shall be in registered form
and shall be typed, printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner, all as
determined by the officers executing such Certificates, as evidenced by their
execution of such Certificates.
Section 3.02. RESTRICTIVE LEGENDS.
-------------------
(a) Subject to Section 3.06, each U.S. Global Certificate and
each U.S. Physical Certificate shall bear the following legend (the "Private
Placement Legend") on the face thereof:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT
IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
CERTIFICATE IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT, WITHIN TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE LAST
DATE ON WHICH THIS CERTIFICATE WAS HELD BY AMERICAN TRANS AIR, INC. ("ATA") OR
AN AFFILIATE OF ATA, RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A) TO
ATA OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING
$100,000 OR MORE AGGREGATE PRINCIPAL AMOUNT OF SUCH CERTIFICATES THAT, TAKES
DELIVERY OF THIS CERTIFICATE IN DEFINITIVE FORM AND PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS CERTIFICATE (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CASE THIS CERTIFICATE IS IN
DEFINITIVE FORM IN CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE WITHIN TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THE CERTIFICATE OR THE LAST
DATE ON WHICH THIS CERTIFICATE WAS HELD BY ATA OR AN AFFILIATE OF ATA, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING
TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE
PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE
FOREGOING RESTRICTIONS.
(b) Each Global Certificate shall also bear the following legend on the
face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IN EXCHANGE FOR THIS CERTIFICATE 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 HEREON 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. TRANSFERS OF
THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART,
TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 3.05 AND 3.06 OF
THE PASS THROUGH TRUST AGREEMENT REFERRED TO HEREIN.
Section 3.03. AUTHENTICATION OF CERTIFICATES. No Certificate
shall be entitled to any benefit under this Agreement or be valid or obligatory
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by the manual signature of one of its authorized signatories, and such
certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder.
Section 3.04. TRANSFER AND EXCHANGE.
---------------------
(a) The Trustee shall cause to be kept at the office or agency
to be maintained by it in accordance with the provisions of Section 7.11 of this
Agreement a register (the "Register") for the Certificates in which, subject to
such reasonable regulations as it may prescribe, the Trustee shall provide for
the registration of the Certificates and of transfers and exchanges of the
Certificates as herein provided. The Trustee shall initially be the registrar
(the "Registrar") for the purpose of registering the Certificates and transfers
and exchanges of the Certificates as herein provided. A Certificateholder may
transfer a Certificate by written application to the Registrar stating the name
of the proposed transferee and otherwise complying with the terms of this
Agreement, including providing a written certificate or other evidence of
compliance with any restrictions on transfer. No such transfer shall be effected
until, and such transferee shall succeed to the rights of a Certificateholder
only upon, final acceptance and registration of the transfer by the Registrar in
the Register. Prior to the registration of any transfer by a Certificateholder
as provided herein, the Trustee shall treat the person in whose name the
Certificate is registered as the owner thereof for all purposes, and the Trustee
shall not be affected by notice to the contrary. Furthermore, DTC shall, by
acceptance of a Global Certificate, agree that transfers of beneficial interests
in such Global Certificate may be effected only through a book-entry system
maintained by DTC (or its agent), and that ownership of a beneficial interest in
the Certificate shall be required to be reflected in a book entry. When
Certificates are presented to the Registrar with a request to register the
transfer or to exchange them for an equal face amount of Certificates of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions are met. To
permit registrations of transfers and exchanges in accordance with the terms,
conditions and restrictions hereof, the Trustee shall execute and authenticate
Certificates at the Registrar's request. No service charge shall be made for any
registration of transfer or exchange of the Certificates, but the Trustee may
require payment by the transferor of a sum sufficient to cover any transfer tax
or similar governmental charge payable in connection therewith (other than any
such transfer taxes or other similar governmental charges payable upon exchanges
pursuant to Section 3.11 or 9.07).
Section 3.05. BOOK-ENTRY PROVISIONS FOR U.S. GLOBAL CERTIFICATE AND OFFSHORE
GLOBAL CERTIFICATES.
(a) Members of, or participants in, DTC ("Agent Members")
shall have no rights under this Agreement with respect to any Global Certificate
held on their behalf by DTC, or the Trustee as its custodian, and DTC may be
treated by the Trustee and any agent of the Trustee as the absolute owner of
such Global Certificate for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Trustee or any agent of the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by DTC or shall impair, as between DTC and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
holder of any Certificate. Upon the issuance of any Global Certificate, the
Registrar or its duly appointed agent shall record a nominee of DTC as the
registered holder of such Global Certificate.
(b) Transfers of any Global Certificate shall be limited to
transfers of such Global Certificate in whole, but not in part, to nominees of
DTC, its successor or such successor's nominees. Beneficial interests in the
U.S. Global Certificate and any Offshore Global Certificate may be transferred
in accordance with the rules and procedures of DTC and the provisions of Section
3.06. Beneficial interests in the U.S. Global Certificate or an Offshore Global
Certificate shall be (or, under the Related Pass Through Trust Agreement, may
have been) delivered to all beneficial owners in the form of U.S. Physical
Certificates or Offshore Physical Certificates, as the case may be, if (i) the
Company notifies the Trustee in writing that DTC is unwilling or unable to
discharge properly its responsibilities as depositary for the U.S. Global
Certificate or such Offshore Global Certificate, as the case may be, and the
Company is unable to locate a qualified successor depositary within 90 days of
such notice or (ii) after the occurrence of an Event of Default, beneficial
owners of the U.S. Global Certificate or Offshore Global Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in the Trust, by Act of such Certificateholders delivered to the Company and the
Trustee, advise the Company, the Trustee and DTC through its Clearing Agency
Participants in writing that the continuation of a book-entry system through DTC
is no longer in the best interests of the Certificateholders, then the Trustee
shall notify all owners of beneficial interests in the U.S. Global Certificate
or an Offshore Global Certificate, through DTC, of the occurrence of any such
event and the availability of definitive Certificates.
(c) Any beneficial interest in one of the Global Certificates
that is transferred to a Person who takes delivery in the form of an interest in
the other Global Certificate will, upon such transfer, cease to be an interest
in such Global Certificate and become an interest in the other Global
Certificate and, accordingly, will thereafter be subject to all transfer
restrictions, if any, and other procedures applicable to beneficial interests in
such other Global Certificate for as long as it remains such an interest.
(d) [Intentionally omitted].
(e) In connection with the transfer of the entire U.S. Global
Certificate or an entire Offshore Global Certificate to the beneficial owners
thereof pursuant to paragraph (b) of this Section 3.05, such U.S. Global
Certificate or Offshore Global Certificate, as the case may be, shall be deemed
to be surrendered to the Trustee for cancellation, and the Trustee shall
execute, authenticate and deliver, to each beneficial owner identified by DTC in
exchange for its beneficial interest in such U.S. Global Certificate or Offshore
Global Certificate, as the case may be, an equal aggregate principal amount of
U.S. Physical Certificates or Offshore Physical Certificates, as the case may
be, of authorized denominations.
(f) Any U.S. Physical Certificate delivered in exchange for an
interest in the U.S. Global Certificate pursuant to paragraph (b) of this
Section 3.05 shall, except as otherwise provided by paragraph (f) of Section
3.06, bear the Private Placement Legend.
(g) Any Offshore Physical Certificate delivered in exchange
for an interest in an Offshore Global Certificate pursuant to paragraph (b) of
this Section shall, except as otherwise provided by paragraph (f) of Section
3.06, bear the applicable legend regarding transfer restrictions set forth in
Section 3.02(a).
(h) The registered holder of the U.S. Global Certificate or
any Offshore Global Certificate may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Agreement or the Certificates.
Section 3.06. SPECIAL TRANSFER PROVISIONS. The following provisions shall
apply to theCertificates:
(a) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS. The following
provisions shall apply with respect to the registration of any proposed transfer
of a Certificate to any Institutional Accredited Investor which is not a QIB
(excluding transfers to, or on or after the Regulation S Restricted Date, by
Non-U.S. Persons):
(i) The Registrar shall register the transfer of any
Certificate, whether or not such Certificate bears the Private
Placement Legend, if (x) the requested transfer is at least two years
after the later of the original issue date of the Certificates and the
last date on which such Certificate was held by the Company or any
affiliate thereof or (y) the proposed transferee has delivered to the
Registrar a letter substantially in the form of Exhibit B hereto and
the aggregate principal amount of the Certificates being transferred is
at least $100,000.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Certificate or, at a date prior
to the Regulation S Restricted Date, an Offshore Global Certificate,
upon receipt by the Registrar of (x) the documents, if any, required by
paragraph (i) and (y) instructions given in accordance with DTC's and
the Registrar's procedures, the Registrar shall reflect on its books
and records the date of the transfer and a decrease in the principal
amount of such U.S. Global Certificate in an amount equal to the
principal amount of the beneficial interest in such U.S. Global
Certificate to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver to the transferor or at its
direction, one or more U.S. Physical Certificates of like tenor and
amount.
(b) TRANSFERS TO QIBS. The following provisions shall apply with respect to
the registration of any proposed transfer of a Certificate to a QIB (excluding
Non-U.S. Persons):
(i) If the Certificate to be transferred consists of U.S.
Physical Certificates or an interest in any Offshore Global Certificate
prior to the Regulation S Restricted Date, the Registrar shall register
the transfer if such transfer is being made by a proposed transferor
who has checked the box provided for on the form of U.S. Physical
Certificate or delivered a certificate to the Trustee in the form of
Exhibit E hereto stating, or has otherwise advised the Trustee and the
Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who, in the case of a
transfer of a U.S. Physical Certificate, has signed the certification
provided for on the form of Certificate and, in the case of an Offshore
Global Certificate transferred prior to the Regulation S Restricted
Date, who has signed the certification provided for in Exhibit E
hereto, stating, or has otherwise advised the Trustee and the Registrar
in writing, that it is purchasing the Certificate for its own account
or an account with respect to which it exercises sole investment
discretion and that it, or the Person on whose behalf it is acting with
respect to any such account, is a QIB within the meaning of Rule 144A,
and is aware that the sale to it is being made in reliance on Rule 144A
and has been advised of the applicable transfer restrictions relating
to the Certificates and acknowledges that it has received such
information regarding the Trust and/or the Company as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A.
(ii) Upon receipt by the Registrar of the documents referred
to in clause (i) above and instructions given in accordance with DTC's
and the Registrar's procedures therefor, the Registrar shall reflect on
its books and records the date of such transfer and an increase in the
principal amount of the U.S. Global Certificate in an amount equal to
the principal amount of the U.S. Physical Certificates or interests in
the Offshore Global Certificate, as the case may be, being transferred,
and the Trustee shall cancel such U.S. Physical Certificates or
decrease the amount of such Offshore Global Certificate so transferred.
(c) [Intentionally omitted].
(d) TRANSFERS OF INTERESTS IN THE OFFSHORE GLOBAL CERTIFICATE ON OR AFTER
THE REGULATION S RESTRICTED DATE. The Registrar shall register any transfer of
interests in the Offshore Global Certificate on or after the Regulation S
Restricted Date without requiring any additional certification.
(e) TRANSFERS TO NON-U.S. PERSONS AT ANY TIME. The following provisions
shall apply with respect to any registration of any transfer of a Certificate to
a Non-U.S. Person:
(i) The Registrar shall register any proposed transfer of a
U.S. Global Certificate or U.S. Physical Certificate to any Non-U.S.
Person, upon receipt of a certificate substantially in the form of
Exhibit A hereto from the proposed transferor. The Registrar shall
promptly send a copy of such certificate to the Company.
(ii) (A) Upon receipt by the Registrar of (x) the documents,
if any, required by paragraph (c) and (y) instructions in accordance
with DTC's and the Registrar's procedures, the Registrar shall reflect
on its books and records the date of such transfer and shall cancel the
Physical Certificate, if any, so transferred, or decrease the principal
amount of any such U.S. Global Certificate in an amount equal to the
principal amount of the beneficial interest in such U.S. Global
Certificate to be transferred, and (B) upon receipt by the Registrar of
instructions given in accordance with DTC's and the Registrar's
procedures, the Registrar shall reflect on its books and records the
date and an increase in the principal amount of the Offshore Global
Certificate in an amount equal to the principal amount of the U.S.
Physical Certificate or the U.S. Global Certificate, as the case may
be, to be transferred, and the Trustee shall cancel the Physical
Certificate, if any, so transferred or decrease the amount of such U.S.
Global Certificate.
(f) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or replacement of
Certificates not bearing the Private Placement Legend, the Registrar shall
deliver Certificates that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Certificates bearing the Private Placement
Legend, the Registrar shall deliver only Certificates that bear the Private
Placement Legend unless either (i) the circumstances contemplated by paragraph
(a)(i)(x) or (e)(ii) of this Section 3.06 exist or (ii) there is delivered to
the Registrar an Opinion of Counsel to the effect that neither such legend nor
the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act.
(g) GENERAL. By its acceptance of any Certificate bearing the Private
Placement Legend, each Holder of such a Certificate acknowledges the
restrictions on transfer of such Certificate set forth in this Agreement and
agrees that it will transfer such Certificate only as provided in this
Agreement. The Registrar shall not register a transfer of any Certificate unless
such transfer complies with the restrictions on transfer of such Certificate set
forth in this Agreement. In connection with any transfer of Certificates, each
Certificateholder agrees by its acceptance of the Certificates to furnish the
Registrar or the Trustee such certifications, legal opinions or other
information as either of them may reasonably require to confirm that such
transfer is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act; PROVIDED that
the Registrar shall not be required to determine the sufficiency of any such
certifications, legal opinions or other information.
Until such time as no Certificates remain Outstanding, the
Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 3.05 or this Section 3.06. The
Trustee, if not the Registrar at such time, shall have the right to inspect and
make copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
Section 3.07. MUTILATED, DESTROYED, LOST OR STOLEN
CERTIFICATES. If (a) any mutilated Certificate is surrendered to the Registrar,
or the Registrar receives evidence to its satisfaction of the destruction, loss
or theft of any Certificate, and (b) there is delivered to the Registrar and the
Trustee such security, indemnity or bond, as may be required by them to save
each of them harmless, then, in the absence of notice to the Registrar or the
Trustee that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute, authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate or
Certificates, in authorized denominations and of like Fractional Undivided
Interest. In connection with the issuance of any new Certificate under this
Section 3.07, 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 3.07 shall constitute conclusive evidence of the appropriate
Fractional Undivided Interest in the related Trust, as if originally issued,
whether or not the lost stolen or destroyed Certificate shall be found at any
time.
Section 3.08. PERSONS DEEMED OWNERS. Prior to due presentation
of a Certificate for registration of transfer, the Trustee, the Registrar, and
any Paying Agent of the Trustee may treat the person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.02 and for all other purposes
whatsoever, and neither the Trustee, the Registrar, nor any Paying Agent of the
Trustee shall be affected by any notice to the contrary.
Section 3.09. CANCELLATION. All Certificates surrendered for
payment or transfer or exchange shall, if surrendered to any Person party hereto
other than the Registrar, be delivered to the Registrar for cancellation. No
Certificates shall be authenticated in lieu of or in exchange for any
Certificates cancelled as provided in this Section, 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 3.10. LIMITATION OF LIABILITY FOR PAYMENTS. All
payments or distributions made to Certificateholders 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 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 to the extent available for distribution to
such Certificateholder as provided in this Agreement.
Section 3.11. TEMPORARY CERTIFICATES. Until definitive
Certificates are ready for delivery, the Trustee shall authenticate temporary
Certificates. Temporary Certificates shall be substantially in the form of
definitive Certificates but may have insertions, substitutions, omissions and
other variations determined to be appropriate by the officers executing the
temporary Certificates, as evidenced by their execution of such temporary
Certificates. If temporary Certificates are issued, the Trustee will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee designated for such purpose
pursuant to Section 7.11, 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 authorized denominations. Until so
exchanged, the temporary Certificates shall be entitled to the same benefits
under this Agreement as definitive Certificates.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. CERTIFICATE ACCOUNT AND SPECIAL PAYMENTS ACCOUNT.
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(a) The Trustee shall establish and maintain on behalf of the
Certificateholders a Certificate Account as one or more non-interest-bearing
accounts. The Trustee shall hold the Certificate Account in trust for the
benefit of the Certificateholders, and shall make or permit withdrawals
therefrom only as provided in this Agreement. On each day when a Scheduled
Payment is made to the Trustee, the Trustee, upon receipt thereof, shall
immediately deposit the aggregate amount of such Scheduled Payment into the
Certificate Account.
(b) The Trustee shall establish and maintain on behalf of the
Certificateholders 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, and shall make or permit withdrawals therefrom only as
provided in this Agreement. On each day when one or more Special Payments are
made to the Trustee, the Trustee, upon receipt thereof, shall immediately
deposit the aggregate amount of such Special Payments into the Special Payments
Account.
(c) The Trustee shall cause the Subordination Agent to present
to the Loan Trustee to which an Equipment Note relates such Equipment Note on
the date of its stated final maturity or, in the case of any Equipment Note
which is to be redeemed in whole pursuant to the relevant Indenture, on the
applicable redemption date under such Indenture.
Section 4.02. DISTRIBUTIONS FROM CERTIFICATE ACCOUNT AND
SPECIAL PAYMENTS ACCOUNT.
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(a) On each Regular Distribution Date or as soon thereafter as
the Trustee has confirmed receipt of the payment of the Scheduled Payments due
on such date, the Trustee shall distribute out of the Certificate Account the
entire amount deposited therein pursuant to Section 4.01 (a). There shall be so
distributed to each Certificateholder of record on the Record Date with respect
to such Regular Distribution Date (other than as provided in Section 11.01
concerning the final distribution), by check mailed to such Certificateholder at
the address appearing in the Register, such Certificateholder's PRO RATA share
(based on the aggregate Fractional Undivided Interest in the Trust held by such
Certificateholder) of the aggregate amount in the Certificate Account, except
that, with respect to Certificates registered on the Record Date in the name of
the nominee of DTC (initially, such nominee to be Cede & Co.), such distribution
shall be made by wire transfer in immediately available funds to the account
designated by such nominee.
(b) On each Special Distribution Date with respect to any
Special Payment or as soon thereafter as the Trustee has confirmed receipt of
any Special Payments due on the Equipment Notes or realized upon the sale of
such Equipment Note, the Trustee shall distribute out of the Special Payments
Account the entire amount deposited therein pursuant to Section 4.01(b) of such
Special Payment. There shall be so distributed to each Certificateholder of
record on the Record Date with respect to such Special Distribution Date (other
than as provided in Section 11.01 concerning the final distribution), by check
mailed to such Certificateholder at the address appearing in the Register, such
Certificateholder's pro rata share (based on the aggregate Fractional Undivided
Interest in the Trust held by such Certificateholder) of the aggregate amount in
the Special Payments Account on account of such Special Payment, except that,
with respect to Certificates registered on the Record Date in the name of the
nominee of DTC (initially, such nominee to be Cede & Co.), such distribution
shall be made by wire transfer in immediately available funds to the account
designated by such nominee.
(c) The Trustee shall, at the expense of the Company, cause
notice of each Special Payment to be mailed to each Certificateholder at his
address as it appears in the Register. In the event of redemption or purchase of
Equipment Notes held in the Trust, such notice shall be mailed not less than 20
days prior to the date any such Special Payment is scheduled to be distributed.
In the event the Company is required to pay a Special Redemption Premium to the
Trustee under the Note Purchase Agreement, such notice shall be mailed, together
with the notice by the Escrow Paying Agent under Section 2.06 of the Escrow
Agreement, not less than 20 days prior to the Special Distribution Date for such
amount, which Special Distribution Date shall be the Final Withdrawal Date. 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 20 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 for each $1,000 face amount
Certificate and the amount thereof constituting principal, premium, if any, and
interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a Regular
Distribution Date for the Certificates, the total amount to be received on such
date for each $1,000 face amount Certificate.
If the amount of (i) premium, if any, payable upon the
redemption or purchase of an Equipment Note or (ii) the Special Redemption
Premium, if any, 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 the Trust is
cancelled, the Trustee, as soon as possible after leasing thereof, shall cause
notice thereof to be mailed to each Certificateholder at its address as it
appears on the Register.
Section 4.03. STATEMENTS TO CERTIFICATEHOLDERS.
--------------------------------
(a) On each Regular Distribution Date and Special Distribution
Date, the Trustee will include with each distribution to Certificateholders a
statement, giving effect to such distribution to be made on such Regular
Distribution Date or Special Distribution Date, as the case may be, setting
forth the following information (in the case of a Special Payment, including any
Special Redemption Premium, reflecting in part the information provided by the
Escrow Paying Agent under the Escrow Agreement) (per a $1,000 face amount
Certificate as to clauses (ii), (iii), (iv) and (v) below):
(i) the aggregate amount of funds distributed on such Distribution Date
hereunder and under the Escrow Agreement, indicating the amount allocable to
each source;
(ii) the amount of such distribution allocable to principal and the amount
allocable to premium (including any Special Redemption Premium), if any;
(iii) the amount of such distribution hereunder allocable to interest;
(iv) the amount of such distribution under the Escrow Agreement allocable
to interest on the Deposits;
(v) the amount of such distribution under the Escrow Agreement allocable to
the principal of the unused Deposits; and
(vi) the Pool Balance and the Pool Factor.
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 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 Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Trustee
shall furnish to each Person who at any time during such calendar year was a
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i) through (a)(v), inclusive, above with
respect to the 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 report 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.
(c) Promptly following (i) the Transfer Date, if there has
been any change in the information set forth in clauses (x), (y) and (z) below
from that set forth in pages 102 and 103 of the Offering Memorandum, and (ii)
any early redemption or purchase of, or any default in the payment of principal
or interest in respect of, any of the Equipment Notes held in the Trust, or any
Final Withdrawal, the Trustee shall furnish to Certificateholders of record on
such date a statement setting forth (x) the expected Pool Balances for each
subsequent Regular Distribution Date following the Transfer Date, (y) the
related Pool Factors for such Regular Distribution Dates and (z) the expected
principal distribution schedule of the Equipment Notes, in the aggregate, held
as Trust Property at the date of such notice. With respect to the Certificates
registered in the name of a Clearing Agency or its nominee, on the Transfer
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" (as defined in the Related Pass Through Trust Agreement) on the
Delivery Period Termination Date. The 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 Certificates.
Section 4.04. INVESTMENT OF SPECIAL PAYMENT MONEYS. Any money
received by the Trustee pursuant to Section 4.01(b) representing a Special
Payment which is not to be promptly distributed shall, to the extent
practicable, be invested in Permitted Investments by the Trustee (and such
Permitted Investments shall be registered in the name of the Trustee) as
directed in writing by the Company pending distribution of such Special Payment
pursuant to Section 4.02. Any investment made pursuant to this Section 4.04
shall be in such Permitted Investments having maturities not later than the date
that such moneys are required to be used to make the payment required under
Section 4.02 on the applicable Special Distribution Date and the Trustee shall
hold any such Permitted Investments until maturity. The Trustee shall have no
liability with respect to any investment made pursuant to this Section 4.04,
other than by reason of the willful misconduct or negligence of the Trustee. All
income and earnings from such investments shall be distributed on such Special
Distribution Date as part of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01. MAINTENANCE OF CORPORATE EXISTENCE. The Company,
at its own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises, except as otherwise specifically permitted in Section 5.02;
PROVIDED, HOWEVER, that the Company shall not be required to preserve any right
or franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
Section 5.02. CONSOLIDATION, MERGER, ETC. The Company shall
not consolidate with or merge into any other corporation or convey, transfer or
lease substantially all of its assets as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety shall be organized and validly existing under the laws of the
United States of America or any state thereof or the District of
Columbia and a "citizen of the United States" (as defined in Section
40102(a)(15) of Title 49 of the United States Code) holding an air
carrier operating certificate issued by the Federal Aviation
Administration, or any successor agency thereto (the "FAA"), pursuant
to Chapter 447 of Title 49, United States Code, authorizing the
operation in air transportation of aircraft capable of carrying 10 or
more individuals or 6,000 pounds or more of cargo pursuant to Part 121
of the FAA's regulations (14 CFR Part 121);
(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 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, the
Note Purchase Agreement, the Other Pass Through Trust Agreements and of
this Agreement to be performed or observed by the Company;
(c) immediately after giving effect to such transaction, no
Event of Default applicable to the Certificates or event which is, or
after notice or passage of time, or both, would be, such an Event of
Default shall have occurred and be continuing; and
(d) the Company shall have delivered to the Trustee an
Officers' Certificate of the Company and an Opinion of Counsel of the
Company (which may be the Company's General Counsel) reasonably
satisfactory to the Trustee, each stating that such consolidation,
merger, conveyance, transfer or lease and the assumption agreement
mentioned in clause (b) above comply with this Section 5.02 and that
all conditions precedent herein provided for relating to such
transaction have been complied with.
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, offer or lease is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Agreement with the
same effect as if such successor corporation or Person had been named as the
Company herein. No such conveyance, transfer or lease of substantially all of
the assets of the Company as an entirety shall have the effect of releasing the
Company or any successor corporation or Person which shall theretofore have
become such in the manner prescribed in this Section 5.02 from its liability in
respect of this Agreement, the Note Purchase Agreement or any Note Document to
which it is a party.
Section 5.03. RULE 144A(D)(4) INFORMATION. So long as any of
the Certificates are "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Act, at any time when the Guarantor is neither
subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), the Company and the Guarantor will provide to any
holder of such restricted securities, or to any prospective purchaser of such
restricted securities designated by a holder, upon the request of such holder or
prospective purchaser, any information required to be delivered to holders and
prospective purchasers of the Certificates pursuant to Rule 144A(d)(4) under the
Securities Act.
ARTICLE VI
DEFAULT
Section 6.01. EVENTS OF DEFAULT.
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(a) EXERCISE OF REMEDIES. Upon the occurrence and during the continuation
of any Indenture Default under any Indenture, the Trustee may, to the extent it
is the Controlling Party at such time, direct the exercise of remedies as
provided in the Intercreditor Agreement.
(b) PURCHASE RIGHTS OF CERTIFICATEHOLDERS. By acceptance of its
Certificate, each Certificateholder agrees
that at any time after the occurrence and during the continuation of a
Triggering Event:
(i) each Class B Certificateholder shall have the right to
purchase all, but not less than all, of the Certificates upon ten days'
written notice to the Trustee and each other Class B Certificateholder,
PROVIDED that (A) if prior to the end of such ten-day period any other
Class B Certificateholder notifies such purchasing Class B
Certificateholder that such other Class B Certificateholder wants to
participate in such purchase, then such other Class B Certificateholder
may join with the purchasing Class B Certificateholder to purchase all,
but not less than all, of the Certificates pro rata based on the
Fractional Undivided Interest in the Class B Trust held by each such
Class B Certificateholder and (B) if prior to the end of such ten-day
period any other Class B Certificateholder fails to notify the
purchasing Class B Certificateholder of such other Class B
Certificateholder's desire to participate in such a purchase, then such
other Class B Certificateholder shall lose its right to purchase the
Certificates pursuant to this Section 6.01(b); and
(ii) each Class C Certificateholder shall have the right
(which shall not expire upon any purchase of the Certificates pursuant
to clause (i) above) to purchase all, but not less than all, of the
Certificates and the Class B Certificates upon ten days' written notice
to the Trustee, the Class B Trustee and each other Class C
Certificateholder, PROVIDED that (A) if prior to the end of such
ten-day period any other Class C Certificateholder notifies such
purchasing Class C Certificateholder that such other Class C
Certificateholder wants to participate in such purchase, then such
other Class C Certificateholder may join with the purchasing Class C
Certificateholder to purchase all, but not less than all, of the
Certificates and the Class B Certificates pro rata based on the
Fractional Undivided Interest in the Class C Trust held by each such
Class C Certificateholder and (B) if prior to the end of such ten-day
period any other Class C Certificateholder fails to notify the
purchasing Class C Certificateholder of such other Class C
Certificateholder's desire to participate in such a purchase, then such
other Class C Certificateholder shall lose its right to purchase the
Certificates pursuant to this Section 6.01(b);
The purchase price with respect to the Certificates shall be
equal to the Pool Balance of the Certificates, together with accrued and unpaid
interest thereon to the date of such purchase, without premium, but including
any other amounts then due and payable to the Certificateholders under this
Agreement, the Intercreditor Agreement, the Escrow Agreement, the Note Purchase
Agreement or any Note Document or on or in respect of the Certificates;
PROVIDED, HOWEVER, that (i) if such purchase occurs after the Record Date with
respect to the Final Withdrawal Date, such purchase price shall be reduced by
the aggregate amount of unused Deposits and interest to be distributed under the
Escrow Agreement (which deducted amounts shall remain distributable to, and may
be retained by, the Certificateholder as of such Record Date) and (ii) if such
purchase occurs after a Record Date but prior to the Distribution Date relating
to such Record Date, such purchase price shall be reduced by the amount to be
distributed hereunder on such 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
shall be effective unless the purchaser shall certify to the Trustee that
contemporaneously with such purchase, such purchaser is purchasing, pursuant to
the terms of this Agreement and the Other Pass Through Trust Agreements, the
Certificates, and the Class B Certificates which are senior to the Certificates
held by such purchaser. Each payment of the purchase price of the Certificates
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. Each Certificateholder
agrees by its acceptance of its Certificates that it will, subject to Section
3.04 hereof, upon payment from such Class B Certificateholder(s) or Class C
Certificateholder(s), as the case may be, of the purchase price set forth in the
first sentence of this paragraph, forthwith sell, assign, transfer and convey to
the purchaser thereof (without recourse, representation or warranty of any kind
except for its own acts), all of the right, title, interest and obligation of
such Certificateholder in, this Agreement, the Escrow Agreement, the Deposit
Agreement, the Intercreditor Agreement, the Liquidity Facility, the Note
Documents, the Note Purchase Agreement and all Certificates and Escrow Receipts
held by such Certificateholder (excluding all right, title and interest under
any of the foregoing to the extent such right, title or interest is with respect
to an obligation not then due and payable as respects any action or inaction or
state of affairs occurring prior to such sale) and the purchaser shall assume
all of such Certificateholder's obligations under this Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity
Facility, the Note Documents and the Note Purchase Agreement and all such
Certificates and Escrow Receipts. The Certificates will be deemed to be
purchased on the date payment of the purchase price is made notwithstanding the
failure of the Certificateholders to deliver any Certificates (whether in the
form of Physical Certificates or beneficial interests in Global Certificates)
and, upon such a purchase, (i) the only rights of the Certificateholders will be
to deliver the Certificates to the purchaser and receive the purchase price for
the Certificates and (ii) if the purchaser shall so request such
Certificateholder will comply with all of the provisions of Section 3.04 hereof
to enable new Certificates to be issued to the purchaser in such denominations
as it shall request. All charges and expenses in connection with the issuance of
any such new Certificates shall be borne by the purchaser thereof.
As used in this Section 6.01(b), the terms
"Certificateholder", "Class", "Class B Certificate", "Class B
Certificateholder", "Class B Trust", "Class B Trustee", "Class C Certificate",
"Class C Certificateholder", "Class C Trust" and "Class C Trustee" shall have
the respective meanings assigned to such terms in the Intercreditor Agreement.
Section 6.02. INCIDENTS OF SALE OF EQUIPMENT NOTES. Upon any
sale of all or any part of the Equipment Notes made either under the power of
sale given under this Agreement or otherwise for the enforcement of this
Agreement, the following shall be applicable:
(1) CERTIFICATEHOLDERS AND TRUSTEE MAY PURCHASE EQUIPMENT
NOTES. Any Certificateholder, the Trustee in its individual or any
other capacity or any other Person may bid for and purchase any of the
Equipment Notes, and upon compliance with the terms of sale, may hold,
retain, possess and dispose of such Equipment Notes in their own
absolute right without further accountability.
(2) RECEIPT OF TRUSTEE SHALL DISCHARGE PURCHASER. The receipt
of the Trustee or of the officer making such sale shall be a sufficient
discharge to any purchaser for his purchase money, and, after paying
such purchase money and receiving such receipt, such purchaser or its
personal representative or assigns shall not be obliged to see to the
application of such purchase money, or be in any way answerable for any
loss, misapplication or non-application thereof.
(3) APPLICATION OF MONEYS RECEIVED UPON SALE. Any moneys
collected by the Trustee upon any sale made either under the power of
sale given by this Agreement or otherwise for the enforcement of this
Agreement shall 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, 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 the Intercreditor Agreement, the Note
Purchase Agreement and the Note Documents (subject to the rights of the
applicable Owner Trustee or Owner Participant to cure any such failure in
accordance with Section 4.03 of 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 the Intercreditor Agreement, the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less than
a majority in interest in the 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 the Trust or pursuant to the terms of the Intercreditor
Agreement, or exercising any trust or power conferred on the Trustee under this
Agreement or the Intercreditor Agreement, including any right of the Trustee as
Controlling Party under the Intercreditor Agreement or as holder of the
Equipment Notes, PROVIDED that:
(1) such Direction shall not 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 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 the
Intercreditor Agreement, the Certificateholders holding Certificates 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 Default under any 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, or
(2) in the payment of the principal of (premium, if any) or interest on the
Equipment Notes, or
(3) in respect of a covenant or provision hereof which under Article IX
hereof cannot be modified or amended without the consent of each
Certificateholder holding an Outstanding Certificate affected thereby.
Upon any such waiver, such default shall cease to exist with
respect to the Certificates 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 to the relevant Loan Trustee shall
be annulled with respect thereto; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Upon any such waiver, the Trustee shall vote the Equipment Notes issued
under the relevant Indenture to waive the corresponding Indenture 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 the
Intercreditor Agreement, the right of any Certificateholder to receive
distributions of payments required pursuant to Section 4.02 hereof on the
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 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 evidencing Fractional Undivided
Interests aggregating not less than 25% of the Trust shall have requested the
Trustee in writing to institute such action, suit or proceeding and shall have
offered to the Trustee indemnity as provided in Section 7.02(e);
(3) the Trustee shall have refused or neglected to institute any such
action, suit or proceeding for 60 days after receipt of such notice, request and
offer of indemnity; and
(4) no Direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less than
a majority in interest in the Trust.
It is understood and intended that no one or more of the
Certificateholders shall have any right in any manner whatever hereunder or
under the Certificates to (i) surrender, impair, waive, affect, disturb or
prejudice any property in the Trust Property or the lien of any Indenture on any
property subject thereto, or the rights of the Certificateholders or the holders
of the related Equipment Notes, (ii) obtain or seek to obtain priority over or
preference to any other such Certificateholder 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 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 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 that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company or the Guarantor.
ARTICLE VII
THE TRUSTEE
Section 7.01. NOTICE OF DEFAULTS. As promptly as practicable
after, and in any event within 90 days after the occurrence of any default (as
such term is defined below) hereunder actually known to the Trustee, the Trustee
shall transmit by mail to the Company, the related Owner Trustees, the related
Loan Trustees and the Certificateholders in accordance with Section 313(c) of
the Trust Indenture Act, notice of such default hereunder actually known to the
Trustee, unless such default shall have been cured or waived; PROVIDED, HOWEVER,
that, except in the case of a default in the payment of the principal of
(premium, if any) or interest on any Equipment Note, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Certificateholders. For the purpose of this
Section, the term "default" means any event that is, or after notice or lapse of
time or both would become, an Event of Default.
Section 7.02. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of
Section 315 of the Trust
Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting in reliance upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Request;
(c) whenever in the administration of this Agreement or the 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 Officers' Certificate of the
Company, any Owner Trustee or any 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 the Intercreditor Agreement at the
request or direction of any of the Certificateholders pursuant to this Agreement
or the Intercreditor Agreement unless such Certificateholders shall have offered
to the Trustee reasonable security or indemnity against the cost, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, or report, notice, request, direction, consent, order, bond, debenture
or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this
Agreement or the Intercreditor Agreement or perform any duties under this
Agreement or the 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 the 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 evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the 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 the Intercreditor Agreement;
(i) the Trustee shall not be required to expend or risk its own funds in
the performance of any of its duties under this Agreement, or in the exercise of
any of its rights or powers, if it shall have reason to believe that repayment
of such funds or adequate indemnity against such risk is not reasonably assured
to it; and
(j) except during the continuance of an Event of Default, the Trustee
undertakes and shall be responsible to perform only such duties as are
specifically set forth herein and no implied covenants or obligations shall be
read into this Agreement or be enforceable against Trustee.
Section 7.03. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
CERTIFICATES. The recitals contained herein and in the Certificates, except the
certificates of authentication, shall not be taken as the statements of the
Trustee, and the Trustee assumes no responsibility for their correctness.
Subject to Section 7.14, the Trustee makes no representations as to the validity
or sufficiency of this Agreement, the Note Purchase Agreement, any Note
Documents, any Participation Agreement or any Intercreditor Agreement, the
Deposit Agreement, the Escrow Agreement and Equipment Notes or the Certificates,
except that the Trustee hereby represents and warrants that this Agreement has
been, and each Certificate, the Intercreditor Agreement, the Note Purchase
Agreement, the Escrow Agreement and each Certificate will be, executed and
delivered by one of its officers who is duly authorized to execute and deliver
such document on its behalf.
Section 7.04. MAY HOLD CERTIFICATES. The Trustee, any Paying
Agent, Registrar or any of their Affiliates or any other agent, in their
respective individual or any other capacity, may become the owner or pledgee of
Certificates and subject to Sections 310(b) and 311 of the Trust Indenture Act,
if applicable, may otherwise deal with the Company, the Guarantor, the 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 7.05. MONEY HELD IN TRUST. Money held by the Trustee
or the Paying Agent in trust hereunder need not be segregated from other funds
except to the extent required herein or by law and neither the Trustee nor the
Paying Agent shall have any liability for interest upon any such moneys except
as provided for herein.
Section 7.06. COMPENSATION AND REIMBURSEMENT. The Company agrees:
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(1) to pay, or cause to be paid, to the Trustee compensation
(as set out in a separate fee agreement between the Trustee and the
Company) for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein 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 Agreement or the Intercreditor Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence, willful misconduct or bad faith or as
may be incurred due to the Trustee's breach of its representations and
warranties set forth in Section 7.14;
(3) to indemnify, or cause to be indemnified, the Trustee for,
and to hold it harmless against, any loss, liability or expense (other
than for or with respect to any tax) incurred without negligence,
willful misconduct or bad faith, on its part, arising out of or in
connection with the acceptance or administration of this Trust,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except for any such loss, liability or
expense incurred by reason of the Trustee's breach of its
representations and warranties set forth in Section 7.14. The Trustee
shall notify the Company and the Guarantor promptly of any claim for
which it may seek indemnity. The Company and the Guarantor shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee
may have separate counsel with the consent of the Company and the
Guarantor and the Company and the Guarantor will pay the reasonable
fees and expenses of such counsel. Neither the Company nor the
Guarantor need pay for any settlement made without its consent; and
(4) to indemnify, or cause to be indemnified, the Trustee,
solely in its individual capacity, for, and to hold it harmless
against, any tax (except to the extent the Trustee is reimbursed
therefor pursuant to the next paragraph, provided that no
indemnification shall be available with respect to any tax attributable
to the Trustee's compensation for serving as such) incurred without
negligence, willful misconduct or bad faith, on its part, arising out
of or in connection with the acceptance or administration of this
Trust, including any costs and expenses incurred in contesting the
imposition of any such tax. The Trustee, in its individual capacity,
shall notify the Company and the Guarantor promptly of any claim for
any tax for which it may seek indemnity. The Trustee shall permit the
Company and the Guarantor to contest the imposition of such tax and the
Trustee, in its individual capacity, shall cooperate in the defense.
The Trustee, in its individual capacity, may have separate counsel with
the consent of the Company and the Guarantor and the Company and the
Guarantor will pay the reasonable fees and expenses of such counsel.
Neither the Company nor the Guarantor need pay for any taxes paid, in
settlement or otherwise, without its consent.
The Trustee shall be entitled to reimbursement from, and shall
have a lien prior to the Certificates upon, the Trust Property 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. The Trustee shall cooperate in the contest
by the Company of any such claim. If the Trustee reimburses itself from the
Trust Property for any such tax it will within 30 days mail a brief report
setting forth the amount of such tax and the circumstances thereof to all
Certificateholders as their names and addresses appear in the Register.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a lien prior to the
Certificates upon the Trust Property.
Section 7.07. CORPORATE TRUSTEE REQUIRED, ELIGIBILITY . There
shall at all times be a Trustee hereunder 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 that has 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 7.07, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of conditions so
published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.07 to act as Trustee, the
Trustee shall resign immediately as Trustee in the manner and with the effect
specified in Section 7.08.
Section 7.08. RESIGNATION AND REMOVAL: APPOINTMENT OF SUCCESSOR.
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(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 7.09.
(b) The Trustee may resign at any time as trustee by giving
written notice thereof to the Company, the Authorized Agents, the Owner Trustees
and the Loan Trustees. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Company, the Authorized Agents, the Owner
Trustees, the Loan 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 Act of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust
delivered to the Trustee, the Company, the Owner Trustees and the Loan Trustees.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310 of the
Trust Indenture Act after written request therefor by the Company or by
any Certificateholder who has been a bona fide certificateholder for at
least six months; or
(2) the Trustee shall cease to be eligible under Section 7.07
and shall fail to resign after written request therefor by the Company
or by any such Certificateholder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any case, (i) the Company may remove the Trustee or (ii) any
Certificateholder who has been a bona fide Certificateholder for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(e) If a Responsible Officer of the Trustee shall obtain
actual knowledge of an Avoidable Tax (as hereinafter defined) 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 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 in a jurisdiction where there are no Avoidable Taxes. As used
herein, an "Avoidable Tax" means a state or local tax: (i) upon (w) the Trust,
(x) the Trust Property, (y) Certificateholders or (z) the Trustee for which the
Trustee is entitled to seek reimbursement from the Trust Property, and (ii)
which would be avoided if the Trustee were located in another state, or
jurisdiction within a state, within the United States. A tax shall not be an
Avoidable Tax 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 or if a vacancy shall occur in the office of the
Trustee for any cause, the Company shall promptly appoint a successor Trustee.
If, within 90 days after such resignation, removal or incapability, or other
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust
delivered to the Company, the Owner Trustees, the Loan Trustee and the retiring
Trustee, the successor Trustees so appointed shall, with the approval of the
Company, which approval shall not be unreasonably withheld, forthwith upon its
acceptance of such appointment, become the successor Trustee and supersede the
successor Trustee 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 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.
(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 as their names and addresses appear in the Register. Each
notice shall include the name of such successor Trustee and the address of its
Corporate Trust Office.
Section 7.09. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall execute and deliver an instrument
transferring to such successor Trustee all such rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee, subject
nevertheless to its lien, if any, provided for in Section 7.06. 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.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 7.10. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
PROVIDED such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Certificates shall have been
executed or authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such execution or authentication and deliver the Certificates so
executed or authenticated with the same effect as if such successor Trustee had
itself executed or authenticated such Certificates.
Section 7.11. MAINTENANCE OF AGENCIES.
-----------------------
(a) There shall at all times be maintained an office or agency
where Certificates 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 may be served. 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. 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. Each Registrar shall furnish to the Trustee, at
stated intervals of not more than six months, and at such other times as the
Trustee may request in writing, a copy of the Register maintained by such
Registrar.
(c) Any corporation into which any Authorized Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any Authorized
Agent, shall be a party, or any corporation succeeding to the corporate trust
business of any Authorized Agent, shall be the successor of such Authorized
Agent hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or such Authorized Agent or such successor
corporation.
(d) Any Authorized Agent may at any time resign by giving
written notice of resignation to the Trustee, the Company, the Owner Trustees
and the 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 (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. The Company shall give written notice of any such
appointment made by it to the Trustee, the Owner Trustees and the Loan Trustees;
and in each case the Trustee shall mail notice of such appointment to all
Certificateholders as their names and addresses appear on the Register.
(e) The Company agrees to pay, or cause to be paid, from time
to time to each Authorized Agent reasonable compensation for its services and to
reimburse it for its reasonable expenses.
Section 7.12. MONEY FOR CERTIFICATE PAYMENTS TO BE HELD IN
TRUST. All moneys deposited with any Paying Agent for the purpose of any payment
on Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of this
Section. Moneys so deposited and held in trust shall constitute a separate trust
fund for the benefit of the Certificateholders with respect to which such money
was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.13. REGISTRATION OF EQUIPMENT NOTES IN NAME OF
SUBORDINATION AGENT. The Trustee agrees that all Equipment Notes to be purchased
by the Trust shall be issued in the name of the Subordination Agent or its
nominee and held by the Subordination Agent in trust for the benefit of the
Certificateholders, or, if not so held, the 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 7.14. REPRESENTATIONS AND WARRANTIES OF TRUSTEE. The Trustee hereby
represents and warrants on the Transfer Date that:
(a) the Trustee is a Delaware banking corporation organized and validly
existing, and in good standing under the laws of the State of Delaware;
(b) the Trustee has full power, authority and legal right to receive the
Trust Property assigned by the Related Trustee, assume the obligations under,
and perform, the Assignment and Assumption Agreement, this Agreement, the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase Agreement and
the Note Documents to which it is a party and has taken all necessary action to
authorize such receipt, assumption and performance by it of the Assignment and
Assumption Agreement, this Agreement, the Intercreditor Agreement, the Escrow
Agreement, the Note Purchase Agreement and the Note Documents to which it is a
party;
(c) the receipt of the Trust Property under the Assignment and Assumption
Agreement and the performance by the Trustee of the Assignment and Assumption
Agreement, this Agreement, the Intercreditor Agreement, the Escrow Agreement,
the Note Purchase Agreement and the Note Documents to which it is a party (i)
will not violate any provision of any United States federal law or the law of
the State of Delaware governing the banking and trust powers of the Trustee or
any order, writ, judgment, or decree of any court, arbitrator,or governmental
authority applicable to the Trustee or any of its assets, (ii) will not violate
any provision of the articles of association or by-laws of the Trustee, and
(iii) will not violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or imposition of
any lien on any properties included in the Trust Property pursuant to the
provisions of, any mortgage, indenture, contract, agreement or other undertaking
to which it is a party, which violation, default or lien could reasonably be
expected to have an adverse effect on the Trustee's performance or ability to
perform its duties hereunder or thereunder or on the transactions contemplated
herein or therein;
(d) the receipt of the Trust Property under the Assignment and Assumption
Agreement and the performance by the Trustee of the Assignment and Assumption
Agreement, this Agreement, the Intercreditor Agreement, the Escrow Agreement,
the Note Purchase Agreement and the Note Documents to which it is a party 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
Delaware regulating the banking and corporate trust activities of the Trustee;
and
(e) the Assignment and Assumption Agreement has been duly executed and
delivered by the Trustee and this Agreement, the Assignment and Assumption
Agreement, the Intercreditor Agreement, the Escrow Agreement, the Note Purchase
Agreement and the Note Documents to which it is a party have been duly executed
and delivered by the Trustee and constitute the legal, valid, and binding
agreements of the Trustee, enforceable against it in accordance with their
respective terms, provided that enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and (ii) general principles of equity.
Section 7.15. WITHHOLDING TAXES, INFORMATION REPORTING. (a)
The Trustee, as trustee of the 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
any and all withholding taxes applicable thereto as required by law. The Trustee
agrees to act as such withholding agent and, in connection therewith, whenever
any taxes or similar charges are required to be withheld with respect to any
amounts paid by or on behalf of the Trustee in respect of the Certificates, to
withhold such amounts and timely pay the same to the authority in the name of
and on behalf of the Certificateholders, 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 necessary 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.
(b) The Trustee may satisfy certain of its obligations with
respect to this Agreement by retaining, at the expense of the Company, a firm of
independent public accountants (the "Accountants") which shall (i) be
responsible for all tax filing requirements and (ii) perform the obligations of
the Trustee in respect of tax filing requirements. The Trustee shall be deemed
to have discharged its tax filing obligations under this Agreement upon its
retention of the Accountants, and, if the Trustee shall have selected in the
Accountants in good faith and without gross negligence, the Trustee shall not
have any liability with respect to the default or misconduct of the Accountants.
(c) The Trustee, at the request of the Company, will make such
United States federal income tax elections as may be necessary to prevent the
Trust from being classified for federal income tax purposes as an association
taxable as a corporation.
Section 7.16. TRUSTEE'S LIENS. The Trustee in its individual
capacity agrees that it will 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 which is attributable to the
Trustee either (i) in its individual capacity and which is unrelated to the
transactions contemplated by this Agreement, the Intercreditor Agreement, the
Participation Agreements, the Note Purchase Agreement or the 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 7.17. PREFERENTIAL COLLECTION OF CLAIMS. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship listed in Section 311(b) of the Trust Indenture Act. If
the Trustee shall resign or be removed as Trustee, it shall be subject to
Section 311(a) of the Trust Indenture Act to the extent provided therein.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. THE COMPANY TO FURNISH TRUSTEE WITH NAMES AND
ADDRESSES OF CERTIFICATEHOLDERS. The Company will furnish or cause to be
furnished 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, 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, no such list need be furnished; and provided FURTHER,
HOWEVER, that no such list need be furnished for so long as a copy of the
Register is being furnished to the Trustee pursuant to Section 7.11.
Section 8.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
CERTIFICATEHOLDERS. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders contained
in the most recent list furnished to the Trustee as provided in Section 7.11 or
Section 8.01, as the case may be, and the names and addresses of
Certificateholders received by the Trustee in its capacity as Registrar, if so
acting. The Trustee may destroy any list furnished to it as provided in Section
7.11 or Section 8.01, as the case may be, upon receipt of a new list so
furnished.
Section 8.03. REPORTS BY TRUSTEE. Within 60 days after May 15
of each year commencing with the first full year following the date hereof, the
Trustee shall transmit to the Certificateholders, as provided in Section 313(c)
of the Trust Indenture Act, a brief report dated as of such May 15, if required
by Section 313(a) of the Trust Indenture Act.
Section 8.04. REPORTS BY THE GUARANTOR AND COMPANY. The Guarantor and the
Company each shall:
(a) file with the Trustee, within 30 days after the Guarantor
or 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 Guarantor or
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 Guarantor or 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
Guarantor and the Company with the conditions and covenants of the
Guarantor and 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 Guarantor and the Company pursuant to subsections (a) and
(b) of this Section 8.04 as may be required by rules and regulations
prescribed by the SEC;
(d) furnish to the Trustee, not less often than annually, a
brief certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his or her
knowledge of the Guarantor's and the Company's compliance with all
conditions and covenants under this Agreement (it being understood that
for purposes of this paragraph (d), such compliance shall be determined
without regard to any period of grace or requirement of notice provided
under this Agreement); and
(e) make available to any Certificateholder, upon request, the
annual audited and quarterly unaudited financial statements of the
Guarantor which are provided to the Trustee.
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF
CERTIFICATEHOLDERS. Without the consent of the Certificateholders, the Guarantor
and the Company may, and the Trustee (subject to Section 9.03) shall, at any
time and from time to time, enter into one or more agreements supplemental
hereto or, if applicable, to the Indenture, the Lease, the Participation
Agreement, Intercreditor Agreement, the Escrow Agreement, the Note Purchase
Agreement, the Deposit Agreement or the Liquidity Facility in form satisfactory
to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company or the Guarantor and the assumption by any such successor of
the covenants of the Company or the Guarantor contained herein or in
each of the other related documents to which Company or the Guarantor
is a party; or
(2) to add to the covenants of the Guarantor or the Company
for the benefit of the Certificateholders, or to surrender any right or
power in this Agreement, the Note Purchase Agreement, the Intercreditor
Agreement or any Liquidity Facility conferred upon the Guarantor or the
Company; or
(3) to correct or supplement any provision in this Agreement,
the Intercreditor Agreement, the Escrow Agreement, the Note Purchase
Agreement, the Deposit Agreement or the Liquidity Facility which may be
defective or inconsistent with any other provision herein or therein or
to modify any other provisions with respect to matters or questions
arising under this Agreement, the Intercreditor Agreement, the Escrow
Agreement, the Note Purchase Agreement, the Deposit Agreement or the
Liquidity Facility, provided that any such action shall not adversely
affect the interests of the Certificateholders; or to cure any
ambiguity or correct any mistake in such documents, or as provided in
the Intercreditor Agreement, to give effect to or provide for a
Replacement Liquidity Facility (as defined in the Intercreditor
Agreement); or
(4) to comply with any requirement of the SEC, any applicable
law, rules or regulations of any exchange or quotation system on which
the Certificates are listed, or any regulatory body; or
(5) to modify, eliminate or add to the provisions of this
Agreement to such extent as shall be necessary to continue the
qualification of this Agreement (including any supplemental agreement)
under the Trust Indenture Act, or under any similar Federal statute
hereafter enacted, and to add to this Agreement such other provisions
as may be expressly permitted by the Trust Indenture Act, excluding,
however, the provisions referred to in Section 316(a)(2) of the Trust
Indenture Act as in effect at the date as of which this instrument was
executed or any corresponding provision in any similar Federal statute
hereafter enacted; or
(6) to evidence and provide for the acceptance of appointment
under this Agreement by the Trustee of a successor Trustee and to add
to or change any of the provisions of this Agreement as shall be
necessary to provide for or facilitate the administration of the Trust,
pursuant to the requirements of Section 7.09; or
(7) if with respect to any Owned Aircraft the Company issues
"class D" pass through certificates, to modify, eliminate or add to the
provisions of this Agreement to the extent necessary to provide for the
subordination of such "class D" pass through certificates to the
Certificates;
PROVIDED that no such action described in this Section 9.01 shall materially
adversely affect the interests of the Certificateholders.
Section 9.02. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF
CERTIFICATEHOLDERS. With the consent of the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less than
a majority in interest of the Trust, by Act of said Certificateholders delivered
to the Guarantor, the Company and the Trustee, the Guarantor and the Company may
(with the consent of the Owner Trustees, if any, which consent shall not be
unreasonably withheld), and the Trustee (subject to Section 9.03) shall, enter
into an agreement or agreements supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement, the Intercreditor Agreement, the Escrow Agreement, the Note
Purchase Agreement, the Deposit Agreement or the 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, the
Intercreditor Agreement, any Liquidity Facility, the Escrow Agreement, the
Deposit Agreement or the Note Purchase Agreement; PROVIDED, HOWEVER, that no
such supplemental agreement shall, without the consent of the Certificateholder
of each Outstanding Certificate affected thereby:
(1) reduce in any manner the amount of, or delay the timing of, any receipt
by the Trustee (or, with respect to the Deposits, the Certificateholders) of
payments on the Equipment Notes held in the Trust or under the Deposit Agreement
or distributions that are required to be made herein on any Certificate, or
change any date of payment of any Certificate or change the place of payment
where, or the coin or currency in which, any Certificate 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 except as permitted by this Agreement, or otherwise deprive such
Certificateholder of the benefit of the ownership of the Equipment Notes in the
Trust; or
(3) alter the priority of distributions specified in the Intercreditor
Agreement; or
(4) modify any of the provisions of this Section or Section 6.05, except to
increase any such percentage or to provide that certain other provisions of this
Agreement cannot be modified or waived without the consent of the
Certificateholder of each Certificate affected thereby; or
(5) adversely affect the status of any Trust as a grantor trust under
Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle A of the Internal
Revenue Code of 1986, as amended, for U.S. federal income tax purposes.
It shall not be necessary for any Act of Certificateholders
under this Section to approve the particular form of any proposed supplemental
agreement but it shall be sufficient if such Act shall approve the substance
thereof.
Section 9.03. DOCUMENTS AFFECTING IMMUNITY OR INDEMNITY. If in
the opinion of the Trustee any document required to be executed by it pursuant
to the terms of Section 9.01 or 9.02 affects any interest, right, duty, immunity
or indemnity in favor of the Trustee under this Agreement, 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 trust
created by this Agreement, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, written advice of counsel or 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 supplemental agreement under this Article, this Agreement shall
be modified in accordance therewith, and such supplemental agreement shall form
a part of this Agreement for all purposes; and every Certificateholder
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
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 authenticated and delivered after the execution of any
supplemental agreement 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 after proper presentation and demand.
ARTICLE X
AMENDMENTS TO INDENTURES AND NOTE DOCUMENTS
Section 10.01. AMENDMENTS AND SUPPLEMENTS TO INDENTURES AND
OTHER NOTE DOCUMENTS. In the event that the Trustee, as holder (or beneficial
owner through the Subordination Agent) of any Equipment Note in trust for the
benefit of the Certificateholders or as Controlling Party under the
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, any other Note Document, any Equipment
Note, the Note Purchase Agreement or any other related document, the Trustee
shall forthwith send a notice of such proposed amendment, modification, waiver
or supplement to each Certificateholder registered on the Register as of the
date of such notice. The Trustee shall request from the Certificateholders 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
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 such Equipment
Note or a Controlling Party and (c) how to vote (or direct the Subordination
Agent to vote) any Equipment Note if a vote has been called for with respect
thereto. Provided such a request for Certificateholder Direction shall have been
made, in directing any action or casting any vote or giving any consent as the
holder of any Equipment Note (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 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
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 two Business Days before the Trustee directs such action
or casts such vote or gives such consent. Notwithstanding the foregoing, but
subject to Section 6.04 and the Intercreditor Agreement, the Trustee may, 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 the relevant Indenture, any other Note Document, any Equipment
Note, the Note Purchase Agreement or any other related 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.
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01. TERMINATION OF THE TRUST. The respective
obligations and responsibilities of the Company, the Guarantor and the Trustee
with respect to the Trust shall terminate upon the distribution to all Holders
of the Certificates 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; PROVIDED, HOWEVER, that in no event shall the Trust
continue beyond one hundred ten (110) years following the date of the earliest
execution of this Agreement.
Notice of any termination, specifying the Regular Distribution
Date (or Special Distribution Date, as the case may be) upon which the
Certificateholders may surrender their Certificates to the Trustee for payment
of the final distribution and cancellation, shall be mailed promptly by the
Trustee to Certificateholders not earlier than the 60th day and not later than
the 20th day next 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 will be made upon presentation
and surrender of Certificates 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 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. Upon
presentation and surrender of the Certificates, the Trustee shall cause to be
distributed to Certificateholders 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 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 to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. No additional interest shall accrue on the Certificates after the
Regular Distribution Date (or Special Distribution Date, as the case may be). In
the event that any money held by the Trustee for the payment of distributions on
the Certificates shall remain unclaimed for two years (or such lesser time as
the Trustee shall be satisfied, after sixty days' notice from the Company, is
one month prior to the escheat period provided under applicable law) after the
final distribution date with respect thereto, the Trustee shall pay to each 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 shall not operate to terminate this
Agreement, or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations, and liabilities of the parties
hereto or any of them.
Section 12.02. LIABILITIES OF CERTIFICATEHOLDERS. Neither the
existence of the Trust nor any provision in this Agreement is intended to or
shall limit the liability the Certificateholders would otherwise incur if the
Certificateholders owned Trust Property as co-owners, or incurred any
obligations of the Trust, directly rather than through the Trust.
Section 12.03. CERTIFICATES NONASSESSABLE AND FULLY PAID.
Subject to Section 12.02, Certificateholders shall not be personally liable for
obligations of the Trust, the Fractional Undivided Interests represented by the
Certificates shall be nonassessable for any losses or expenses of the Trust or
for any reason whatsoever, and Certificates upon authentication thereof by the
Trustee pursuant to Section 3.03 are and shall be deemed fully paid. No
Certificateholder shall have any right (except as expressly provided herein) to
vote or in any manner otherwise control the operation and management of the
Trust Property, the Trust, or the obligations of the parties hereto, nor shall
anything set forth herein, or contained in the terms of the Certificates, be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association.
Section 12.04. [Intentionally omitted].
Section 12.05. NOTICES.
-------
(a) Unless otherwise specifically provided herein, all notices
required under the terms and provisions of this Agreement shall be in English
and in writing, and any such notice may be given by United States mail, courier
service, telegram, telemessage, telecopy, telefax, cable or facsimile (confirmed
by telephone or in writing in the case of notice by telegram, telemessage,
telecopy, telefax, cable or facsimile) or any other customary means of
communication, and any such notice shall be effective when delivered, or if
mailed, three days after deposit in the United States mail with proper postage
for ordinary mail prepaid, if to the Company or the Guarantor, to:
American Trans Air, Inc.
7337 West Washington Street
Indianapolis International Airport
Indianapolis, Indiana 06927
ATTENTION: Executive Vice President and Chief Financial Officer
----------
FACSIMILE: (317) 240-7087
----------
if to the Trustee, to:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
ATTENTION: Corporate Trust Administration
----------
FACSIMILE: (302) 651-8882
----------
(b) The Company, the Guarantor 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 shall be
mailed by first-class mail to the addresses for Certificateholders shown on the
Register kept by the Registrar and to addresses filed with the Trustee. 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.
(d) If a notice or communication is mailed in the manner
provided above within the time prescribed, it is conclusively presumed to have
been duly given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to the
Certificateholders, it shall mail a copy to the Trustee and to each Paying Agent
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 12.06. GOVERNING LAW. THIS AGREEMENT HAS BEEN
DELIVERED IN THE STATE OF NEW YORK AND THIS AGREEMENT AND THE CERTIFICATES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT-OF-LAW PRINCIPLES.
Section 12.07. SEVERABILITY OF PROVISIONS. If any one or more
of the covenants, agreements, provisions, or terms of this Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions, or terms shall be deemed severable from the remaining covenants,
agreements, provisions, or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or the
Trust or of the Certificates or the rights of the Certificateholders thereof.
Section 12.08. [Intentionally omitted].
Section 12.09. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 12.10. SUCCESSORS AND ASSIGNS. All covenants,
agreements, representations and warranties in this Agreement by the Trustee, the
Guarantor and the Company shall bind and, to the extent permitted hereby, shall
inure to the benefit of and be enforceable by their respective successors and
assigns, whether so expressed or not.
Section 12.11. BENEFITS OF AGREEMENT. Nothing in this
Agreement or in the Certificates, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the
Certificateholders, any benefit or any legal or equitable right, remedy or claim
under this Agreement.
Section 12.12. LEGAL HOLIDAYS. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate shall
not be a Business Day, then (notwithstanding any other provision of this
Agreement) payment need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on such
Regular Distribution Date or Special Distribution Date, and no interest shall
accrue during the intervening period.
Section 12.13. COUNTERPARTS. For the purpose of facilitating
the execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 12.14. COMMUNICATION BY CERTIFICATEHOLDERS WITH OTHER
CERTIFICATEHOLDERS. Certificateholders may communicate with other
Certificateholders with respect to their rights under this Agreement or the
Certificates pursuant to Section 3.12(b) of the Trust Indenture Act. The
Company, the Guarantor, the Trustee and any and all other persons benefitted by
this Agreement shall have the protection afforded by Section 312(c) of the Trust
Indenture Act.
Section 12.15. INTENTION OF PARTIES. The parties hereto intend
that the 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. Each Certificateholder, by its acceptance of its Certificate
or a beneficial interest therein, agrees to treat the Trust as a grantor trust
for all U.S. federal, state and local income tax purposes. The powers granted
and obligations undertaken pursuant to this Agreement shall be so construed so
as to further such intent.
IN WITNESS WHEREOF, the Guarantor, the Company and the Trustee
have caused this Agreement to be duly executed by their respective officers, all
as of the day and year first above written.
AMTRAN, INC.
By /s/ Kenneth K. Wolff
-----------------------------
Title: Executive Vice President and
Chief Financial Officer
AMERICAN TRANS AIR, INC.
/ By /s/ Kenneth K. Wolff
-----------------------------
Title: Chief Financial Officer
WILMINGTON TRUST COMPANY, as Trustee
By /s/ Patricia A. Evans
-----------------------------
Title: Financial Services Officer
EXHIBIT A
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
[date]
Wilmington Trust Company,
not in its individual
capacity but solely as Trustee
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Re: American Trans Air 1997-1A-S Pass Through Trust (the "Trust"), ____%
American Trans Air Pass Through Certificates Series 1997-1A-S (the
"CERTIFICATES")
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Sirs:
In connection with our proposed sale of $ Fractional Undivided Interest
of the Certificates, we confirm that such sale has been effected pursuant to and
in accordance with Regulation S under the Securities Act of 1933, as amended,
and, accordingly, we represent that:
(1) the offer of the Certificates was not made to a person in the United
States;
(2) either (a) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States or (b) the
transaction was executed in, on or through the facilities of a designated
off-shore securities market and neither we nor any person acting on our behalf
knows that the transaction has been pre-arranged with a buyer in the United
States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period
and the provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may
be.
You and American Trans Air, Inc. are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
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Authorized Signature
EXHIBIT B
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
[date]
Wilmington Trust Company,
not in its individual capacity
but solely as Trustee
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Re: American Trans Air 1997-1A-S Pass-Through Trust (the "Trust"), ____%
American Trans Air Pass Through Certificates Series 1997-1A-S (THE
"CERTIFICATES")
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Dear Sirs:
In connection with our proposed purchase of $ aggregate principal amount of
the Certificates, we confirm that:
1. We understand that any subsequent transfer of the
Certificates is subject to certain restrictions and conditions set
forth in the Pass Through Trust Agreement dated as of December __, 1997
relating to the Certificates (the "Pass Through Trust Agreement") and
the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Certificates except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended
(the "Securities Act").
2. We are purchasing Certificates having an aggregate
principal amount of not less than $100,000 and each account (if any)
for which we are purchasing Certificates is purchasing Certificates
having an aggregate principal amount of not less than $100,000.
3. We understand that the Certificates have not been
registered under the Securities Act, and that the Certificates may not
be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that if we should sell any Certificate,
we will do so only (A) in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as defined
therein), (B) to an institutional "accredited investor" (as defined
below) that, prior to such transfer, furnishes to you and American
Trans Air, Inc., a signed letter substantially in the form of this
letter, (C) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (D) pursuant to the exemption
from registration provided by Rule 144 under the Securities Act, or (E)
pursuant to an effective registration statement under the Securities
Act, and we further agree to provide to any person purchasing any of
the Certificates from us a notice advising such purchaser that resales
of the Notes are restricted as stated herein. We further understand
that the Certificates purchased by us will bear a legend to the
foregoing effect.
4. We understand that, on any proposed resale of any
Certificates, we will be required to furnish to you and American Trans
Air, Inc. such certifications, legal opinions and other information as
you and American Trans Air, Inc. may reasonably require to confirm that
the proposed sale complies with the foregoing restrictions. We further
understand that the Certificates purchased by us will bear a legend to
the foregoing effect.
5. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Certificates and we and any accounts for which we are
acting are each able to bear the economic risk of our or its
investment.
6. We are acquiring the Certificates purchased by us for our
own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise
sole investment discretion.
You and American Trans Air, Inc. are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
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Authorized Signature
EXHIBIT C
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
American Trans Air 1997-1[__] Pass Through Trust
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated ____________, 199_
(the "AGREEMENT"), between Wilmington Trust Company, a Delaware banking
corporation ("WTC"), not in its individual capacity except as expressly provided
herein, but solely as trustee under the Pass Through Trust Agreement dated as of
December __, 1997 (as amended, modified or otherwise supplemented from time to
time, the "PASS THROUGH TRUST AGREEMENT") in respect of the American Trans Air
1997-1A-S Pass Through Trust (the "ASSIGNOR"), and Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity except as expressly
provided herein, but solely as trustee under the Pass Through Trust Agreement
dated as of December __, 1997 (the "NEW PASS THROUGH TRUST AGREEMENT") in
respect of the American Trans Air 1997-1A-S Pass Through Trust (the "ASSIGNEE").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the parties hereto desire to effect on the date
hereof (the "TRANSFER DATE") (a) the transfer by the Assignor to the Assignee of
all of the right, title and interest of the Assignor in, under and with respect
to, among other things, the Trust Property and each of the documents listed in
Schedule I hereto (the "SCHEDULED DOCUMENTS") and (b) the assumption by the
Assignee of the obligations of the Assignor (i) under the Scheduled Documents
and (ii) in respect of the Certificates issued under the Pass Through Trust
Agreement; and
WHEREAS, the Scheduled Documents permit such transfer upon
satisfaction of certain conditions heretofore or concurrently herewith being
complied with;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements herein contained, the parties hereto do hereby
agree as follows (capitalized terms used herein without definition having the
meaning ascribed thereto in the Pass Through Trust Agreement):
1. ASSIGNMENT. The Assignor does hereby sell, assign, convey, transfer and
set over unto the Assignee as of the Transfer Date all of its present and future
right, title and interest in, under and with respect to the Trust Property and
the Scheduled Documents and each other contract, agreement, document or
instrument relating to the Trust Property or the Scheduled Documents (such other
contracts, agreements, documents or instruments, together with the Scheduled
Documents, to be referred to as the "ASSIGNED DOCUMENTS"), and any proceeds
therefrom, together with all documents and instruments evidencing any of such
right, title and interest.
2. ASSUMPTION. The Assignee hereby assumes for the benefit of the Assignor
and each of the parties listed in Schedule II hereto (collectively, the
"BENEFICIARIES") all of the duties and obligations of the Assignor, whenever
accrued, pursuant to the Assigned Documents and hereby confirms that it shall be
deemed a party to each of the Assigned Documents to which the Assignor is a
party and shall be bound by all the terms thereof (including the agreements and
obligations of the Assignor set forth therein) as if therein named as the
Assignor. Further, the Assignee hereby assumes for the benefit of the Assignor
and the Beneficiaries all of the duties and obligations of the Assignor under
the Outstanding Certificates and hereby confirms that the Certificates
representing Fractional Undivided Interests under the Pass Through Trust
Agreement shall be deemed for all purposes of the Pass Through Trust Agreement
and the New Pass Through Trust Agreement to be certificates representing the
same fractional undivided interests under the New Pass Through Trust Agreement
equal to their respective beneficial interests in the trust created under the
Pass Through Trust Agreement.
3. EFFECTIVENESS. This Agreement shall be effective upon the execution and
delivery hereof by the parties hereto, and each Certificateholder,
by its acceptance of its Certificate or a beneficial interest therein, agrees to
be bound by the terms of this Agreement.
4. PAYMENTS. The Assignor hereby covenants and agrees to pay over to the
Assignee, if and when received following the Transfer Date, any amounts
(including any sums payable as interest in respect thereof) paid to or for the
benefit of the Assignor that, under Section 1 hereof, belong to the Assignee.
5. FURTHER ASSURANCES. The Assignor shall, at any time and
from time to time, upon the request of the Assignee, promptly and duly execute
and deliver any and all such further instruments and documents and take such
further action as the Assignee may reasonably request to obtain the full
benefits of this Agreement and of the right and powers herein granted. The
Assignor agrees to deliver the Global Certificates, and all Trust Property, if
any, then in the physical possession of the Assignor, to the Assignee.
6. REPRESENTATIONS AND WARRANTIES. (a) The Assignee represents and warrants
to the Assignor and each of the Beneficiaries
that:
(i) it has all requisite power and authority and legal right
to enter into and carry out the transactions contemplated hereby and to
carry out and perform the obligations of the "Pass Through Trustee"
under the Assigned Documents;
(ii) on and as of the date hereof, the representations and
warranties of the Assignee set forth in Section 7.14 of the New Pass
Through Trust Agreement are true and correct.
(b) The Assignor represents and warrants to the Assignee that:
(i) it is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has the full trust
power, authority and legal right under the laws of the State of
Delaware and the United States pertaining to its trust and fiduciary
powers to execute and deliver this Agreement;
(ii) the execution and delivery by it of this Agreement and the
performance by it of its obligations hereunder have been duly
authorized by it and will not violate its articles of association or
by-laws or the provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it is bound; and
(iii) this Agreement constitutes the legal, valid and binding
obligations of it enforceable against it in accordance with its terms,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity, whether
considered in a proceeding at law or in equity.
7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS.
8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which together shall constitute a single
instrument. It shall not be necessary that any counterpart be signed by both
parties so long as each party shall sign at least one counterpart.
9. THIRD PARTY BENEFICIARIES. The Assignee hereby agrees, for the benefit
of the Beneficiaries, that its representations, warranties and covenants
contained herein are also intended to be for the benefit of each Beneficiary,
and each Beneficiary shall be deemed to be an express third party beneficiary
with respect thereto, entitled to enforce directly and in its own name any
rights or claims it may have against such party as such beneficiary.
IN WITNESS WHEREOF, the parties hereto, through their
respective officers thereunto duly authorized, have duly executed this
Assignment as of the day and year first above written.
ASSIGNOR:
WILMINGTON TRUST COMPANY,
not in its individual
capacity except as
expressly provided herein,
but solely as trustee under
the Pass Through Trust
Agreement in respect of the
American Trans Air
1997-1A-S Pass Through
Trust
By:___________________________
Title:
ASSIGNEE:
WILMINGTON TRUST COMPANY,
not in its individual
capacity except as
expressly provided herein,
but solely as trustee under
the Pass Through Trust
Agreement in respect of the
American Trans Air
1997-1A-S Pass Through
Trust
By:__________________________
Title:
Schedule I
Schedule of Assigned Documents
(1) Intercreditor Agreement dated as of December 23, 1997 among the
Trustee, the Other Trustees, the Liquidity Providers, the liquidity providers,
if any, relating to the Certificates issued under (and as defined in) each of
the Other Pass Through Trust Agreements and the Subordination Agent.
(2) Escrow and Paying Agent Agreement (Class A) dated as of December 23,
1997 among the Escrow Agent, the Initial Purchasers, the Trustee and the Paying
Agent.
(3) Note Purchase Agreement dated as of December 23, 1997 among the
Company, the Trustee, the Other Trustees, the Depositary, the Escrow Agent, the
Paying Agent and the Subordination Agent.
(4) Deposit Agreement (Class A) dated as of December 23, 1997 between the
Escrow Agent and the Depositary.
(5) Each of the Operative Documents (as defined in the Participation
Agreement for each Aircraft) in effect as of the Transfer Date.
Schedule II
Schedule of Beneficiaries
Wilmington Trust Company, not in its individual capacity but solely as
Subordination Agent.
Wilmington Trust Company, not in its individual capacity but
solely as Paying Agent
ING Bank, as Liquidity Provider
Amtran, Inc.
American Trans Air, Inc.
Salomon Brothers Inc, as Initial Purchaser
Furman Selz LLC, as Initial Purchaser
First Security Bank, National Association, as Escrow Agent
Each of the other parties to the Assigned Documents
EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS TO QIBs
[date]
Wilmington Trust Company,
not in its individual
capacity but solely as Trustee
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Re: American Trans Air 1997-1A-S Pass Through Trust (the "Trust"), ____%
American Trans Air Pass Through Certificates Series 1997-1A-S (the
"CERTIFICATES")
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Sirs:
In connection with our proposed sale of $ Fractional Undivided Interest
of the Certificates, we confirm that without utilizing any general solicitation
or general advertising that such Certificates are being transferred in
compliance with the exemption from registration under the Securities Act of
1933, as amended, provided by Rule 144A thereunder.
Date: [NAME OF TRANSFEROR
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NOTE: The signature must
correspond with the name as
written upon the face of
the within-mentioned
Certificate in every
particular, without
alteration or any change
whatsoever.
Signature Guarantee:
TO BE COMPLETED BY PURCHASER:
The undersigned represents and warrants that it is purchasing the
within-mentioned Certificate for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such account
is a "qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, as amended, and is aware that the sale to it is being
made in reliance on Rule 144A and has been advised of the applicable transfer
restrictions relating to the Certificates and acknowledges that it has received
such information regarding the Company as the undersigned has requested pursuant
to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Dated:
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[Name of Transferee]
NOTE: To be executed by an executive officer.