This PASS THROUGH TRUST AGREEMENT, dated as of December 16, 1996, 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 1996-1B Pass Through Trust, and the issuance of 7.64%
American Trans Air 1996-1B Pass Through Certificates representing fractional
undivided interests in the Trust.
WITNESSETH:
WHEREAS, the Company, each Owner Trustee and the corresponding Owner
Participant (as such terms and certain other capitalized terms used herein are
defined below) are concurrently herewith entering into a separate leveraged
lease transaction in connection with the sale and leaseback of one Boeing
757-23N aircraft (one such aircraft bearing manufacturer's Serial No. 27973 and
U.S. Registration Mark N517AT and one such aircraft bearing manufacturer's
Serial No. 27974 and U.S. Registration Mark N518AT) (collectively, the
"Aircraft");
WHEREAS, each Owner Trustee, acting on behalf of the corresponding Owner
Participant, will issue pursuant to an Indenture, on a non-recourse basis, three
series of Equipment Notes, among other things, to provide the debt portion of
the purchase price of the related aircraft;
WHEREAS, the Trustee, upon execution and delivery of this Agreement, hereby
declares the creation of this Trust (the "1996-1B Trust") for the benefit of the
Certificateholders, and the initial Certificateholders, as the grantors of the
1996-1B Trust, by their respective acceptances of the Certificates, join in the
creation of this 1996-1B Trust with the Trustee;
WHEREAS, all Certificates to be 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, all of the conditions and requirements necessary to make this
Agreement, when duly executed and delivered, a valid, binding and legal
instrument, enforceable in accordance with its terms and for the purposes herein
expressed, have been done, performed and fulfilled, and the execution and
delivery of this Agreement in the form and with the terms hereof have been in
all respects duly authorized; and
WHEREAS, to facilitate the sale of Equipment Notes to, and the purchase of
Equipment Notes by, the Trustee on behalf of the 1996-1B Trust, (i) 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 and delivery 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;
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 ARTICLE I ARTICLE I ARTICLE
I
DEFINITIONS
Section 1.01. DefinitionsSection 1.01. DefinitionsSection 1.01.
DefinitionsSection 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: Has the meaning specified in the first recital to this Agreement.
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 executed and authenticated
by the Trustee, substantially in the form of Exhibit A hereto.
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.
Cut-off Date: Means March 27, 1997.
Depositary: Means The Depository Trust Company, its nominees and their
respective successors.
Direction: Has the meaning specified in Section 1.04(c).
Distribution Date: Means each Regular Distribution Date and each Special
Distribution Date.
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 Account: Has the meaning specified in Section 2.02(b).
Escrowed Funds: Has the meaning specified in Section 2.02(b).
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.
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 two separate trust indenture and security
agreements described in Schedule 1 to this Agreement, as each such agreement may
be amended or supplemented in accordance with its respective terms; and
Indentures means all of such agreements.
Indenture Default: With respect to any Indenture, means any Event of
Default (as such term is defined in such Indenture).
Initial Purchasers: Means Morgan Stanley & Co. Incorporated and Salomon
Brothers Inc.
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
27, 1996 among the Trustee, the Other Trustees, the Liquidity Provider, the
liquidity providers, if any, relating to the Certificates issued under (and as
defined in) the 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.
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
B Certificates dated December 27, 1996 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, Kredietbank N.V., New York Branch,
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 and Participation Agreement.
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 Certificates Exchange Date: Has the meaning specified in Section
3.01.
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
1996-1A Pass Through Trust Agreement relating to the American Trans Air 1996-1A
Pass Through Trust and (ii) the American Trans Air 1996-1C Pass Through Trust
Agreement relating to the American Trans Air 1996-1C Pass Through Trust, each
dated the date hereof; and Other Pass Through Trust Agreements means both 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.
Outstanding: With respect to Certificates, means, as of the date of
determination, all Certificates theretofore authenticated and delivered under
this Agreement, 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.
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 of the Participation Agreements, dated
as of December 16, 1996, listed on Schedule 2 hereto, providing for, among other
things, the purchase of Equipment Notes by the Trustee on behalf of the Trust,
as the same may be amended, supplemented or otherwise modified from time to time
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.
Permanent Offshore Global Certificates: Has the meaning specified in
Section 3.01.
Permanent Offshore Physical Certificates: Has the meaning specified in
Section 3.01.
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 less (ii) the aggregate amount of all payments made in
respect of such Certificates other than payments made in respect of interest or
premium thereon or reimbursement of any costs or expenses incurred in connection
therewith. The Pool Balance as of any Distribution Date shall be computed after
giving effect to the payment of principal, if any, on the Equipment Notes or
other Trust Property held in the Trust and the distribution thereof to be made
on such Distribution Date.
Pool Factor: Means, 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. The Pool Factor as of
any Distribution Date shall be computed after giving effect to the payment of
principal, if any, on the Equipment Notes or other Trust Property and the
distribution thereof to be made on such Distribution Date.
Postponed Notes: Means the Equipment Notes to be held in such Trust as to
which a Postponement Notice shall have been delivered pursuant to Section
2.02(b).
Postponement Notice: Means an Officer's Certificate of the Company (1)
requesting that the Trustee temporarily postpone purchase pursuant to a Note
Purchase Agreement of certain of the Equipment Notes to a date later than the
Issuance Date, (2) identifying the amount of the purchase price of each such
Equipment Note and the aggregate purchase price for all such Equipment Notes,
(3) setting forth the reasons for such postponement and (4) with respect to each
such Equipment Note, either (a) setting or resetting a new Transfer Date (which
shall be on or prior to the applicable Cut-off Date) for payment by the Trustee
of such purchase price and issuance of the related Equipment Note, or (b)
indicating that such new Transfer Date (which shall be on or prior to the
applicable Cut-off Date) will be set by subsequent written notice not less than
one Business Day prior to such new Transfer Date.
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 September 26, 2011 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) with respect thereto in an amount sufficient to pay
such interest and shall have distributed such amount to the Certificateholders).
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.
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 instrument 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 (i) any payment (other than a Scheduled Payment) in
respect of, or any proceeds of, any Equipment Note or Trust Indenture Estate (as
defined in each Indenture) or (ii) the amounts required to be distributed
pursuant to the last paragraph of Section 2.02(b) or (iii) the amounts required
to be distributed pursuant to the penultimate paragraph of Section 2.02(b).
Special Payments Account: Means the account or accounts created and
maintained pursuant to Section 4.01(b).
Specified Investments: Means (i) obligations of, or guaranteed by, the
United States Government or agencies thereof, (ii) open market commercial paper
of any corporation incorporated under the laws of the United States of America
or any State thereof rated at least P-2 or its equivalent by Moody's Investors
Service, Inc. or at least A-2 or its equivalent by Standard & Poor's Rating
Group, (iii) certificates of deposit issued by commercial banks organized under
the laws of the United States or of any political subdivision thereof having a
combined capital and surplus in excess of $500,000,000 which banks or their
holding companies have a rating of A or its equivalent by Moody's Investors
Service, Inc. or Standard & Poor's Rating Group; provided, however, that the
aggregate amount at any one time so invested in certificates of deposit issued
by any one bank shall not exceed 5% of such bank's capital and surplus, (iv)
U.S. dollar denominated offshore certificates of deposit issued by, or offshore
time deposits with, any commercial bank described in (iii) or any subsidiary
thereof and (v) repurchase agreements with any financial institution having
combined capital and surplus of at least $500,000,000 with any of the
obligations described in clauses (i) through (iv) as collateral; provided
further that if all of the above investments are unavailable, the entire amounts
to be invested may be used to purchase Federal Funds from an entity described in
clause (iii) above; and provided further that no investment shall be eligible as
a "Specified Investment" unless the final maturity or date of return of such
investment is on or before the Special Distribution Date next following the
Cut-off Date, if any, for the Trust by more than 20 days.
Subordination Agent: Shall have the meaning specified therefor in the
Intercreditor Agreement.
Temporary Offshore Global Certificates: Has the meaning specified in
Section 3.01.
Transfer Date: Has the meaning assigned to that term or the term "Delivery
Date" in a Participation Agreement.
Triggering Event: Shall have the meaning specified therefor in the
Intercreditor Agreement.
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 under any Intercreditor Agreement,
including all monies receivable in respect of such rights, (iii) all monies
receivable under the Liquidity Facility and (iv) funds from time to time
deposited in the Escrow Account, the Certificate Account and the Special
Payments Account and 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 OpinionsSection 1.02. Compliance
Certificates and OpinionsSection 1.02. Compliance Certificates and
OpinionsSection 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 TrusteeSection 1.03. Form of
Documents Delivered to TrusteeSection 1.03. Form of Documents Delivered to
TrusteeSection 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 CertificateholdersSection 1.04. Acts of
CertificateholdersSection 1.04. Acts of CertificateholdersSection 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 ARTICLE II ARTICLE II ARTICLE
II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF EQUIPMENT NOTES
Section 2.01. [Intentionally omitted].Section 2.01. [Intentionally
omitted].Section 2.01. [Intentionally omitted].Section 2.01. [Intentionally
omitted].
Section 2.02. Issuance of Certificates; Acquisition of Equipment
NotesSection 2.02. Issuance of Certificates; Acquisition of Equipment
NotesSection 2.02. Issuance of Certificates; Acquisition of Equipment
NotesSection 2.02. Issuance of Certificates; Acquisition of Equipment Notes.
(a) On or prior to the Issuance Date of the Certificates, the Trustee shall
execute and deliver the Intercreditor Agreement and each of the Participation
Agreements in the form delivered to the Trustee by the Company. Upon the oral or
written request of the Company or the Company's counsel acting on behalf of the
Company and the satisfaction of the closing conditions specified in each of the
Participation Agreements, the Trustee shall, execute, deliver and authenticate
Certificates equalling in the aggregate the aggregate principal amount of the
Equipment Notes to be purchased by the Trustee pursuant to each of the
Participation Agreements on the Transfer Date, and evidencing the entire
ownership interest in the Trust. The Trustee shall issue and sell such
Certificates, in authorized denominations and in such Fractional Undivided
Interests, so as to result in the receipt of consideration in an amount equal to
the aggregate purchase price of such Equipment Notes and, concurrently
therewith, the Trustee shall purchase, pursuant to the terms and conditions of
the Participation Agreements, the Equipment Notes at a purchase price equal to
the amount of such consideration so received. Except as provided in Sections
3.03, 3.04 and 3.05 hereof, the Trustee shall not execute, authenticate or
deliver Certificates in excess of the aggregate amount specified in this
paragraph. The provisions of this Subsection 2.02(a) are subject to the
provisions of Subsection 2.02(b) below.
(b) If on or prior to the Issuance Date the Company shall deliver to the
Trustee a Postponement Notice relating to one or more Postponed Notes, the
Trustee shall postpone the purchase of such Postponed Notes and shall deposit
into an escrow account (the "Escrow Account") to be maintained as a part of the
Trust an amount equal to the purchase price of such Postponed Notes (the
"Escrowed Funds"). The Escrowed Funds so deposited shall be invested by the
Trustee at the written direction of the Company in Specified Investments (i)
maturing no later than any scheduled Transfer Date relating to the Postponed
Notes or (ii) if no such Transfer Date has been scheduled, maturing on the next
Business Day, or (iii) if the Company has given notice to the Trustee that any
Postponed Notes will not be issued, with respect to the portion of the Escrowed
Funds relating to such Postponed Notes, maturing on the next applicable Special
Distribution Date, if such investments are reasonably available for purchase.
The Trustee shall make withdrawals from the Escrow Account only as provided in
this Agreement. Upon request of the Company on one or more occasions and the
satisfaction of the closing conditions specified in the applicable Participation
Agreements on or prior to the related Cut-off Date, the Trustee shall purchase
the applicable Postponed Notes with the Escrowed Funds withdrawn from the Escrow
Account. The purchase price shall equal the principal amount of such Postponed
Notes.
The Trustee shall hold all Specified Investments until the maturity thereof
and will not sell or otherwise transfer Specified Investments. If Specified
Investments held in an Escrow Account mature prior to any applicable Transfer
Date, any proceeds received on the maturity of such Specified Investments (other
than any earnings thereon) shall be reinvested by the Trustee at the written
direction of the Company in Specified Investments maturing as provided in the
preceding paragraph.
Any earnings on Specified Investments received from time to time by the
Trustee shall be promptly distributed to the Company. The Company shall pay to
the Trustee for deposit to the Escrow Account an amount equal to any losses on
such Specified Investments as incurred. On the Initial Regular Distribution
Date, the Company will pay (in immediately available funds) to the Trustee an
amount equal to the interest that would have accrued on any Postponed Notes, if
any, purchased after the Issuance Date if such Postponed Notes had been
purchased on the Issuance Date, from the Issuance Date to, but not including,
the date of the purchase of such Postponed Notes by the Trustee.
If the Company notifies the Trustee prior to the Cut-off Date that any
Postponed Notes will not be issued on or prior to the Cut-off Date for any
reason, on the next Special Distribution Date occurring more than 20 days
following the date of such notice (i) the Company shall pay to the Trustee for
deposit in the Special Payments Account, in immediately available funds, an
amount equal to the interest that would have accrued on the Postponed Notes
designated in such notice at a rate equal to the interest rate applicable to the
Certificates from the Issuance Date to, but not including, such Special
Distribution Date and (ii) the Trustee shall transfer an amount equal to that
amount of Escrowed Funds that would have been used to purchase the Postponed
Notes designated in such notice and the amount paid by the Company pursuant to
the immediately preceding clause (i) to the related Special Payments Account for
distribution as a Special Payment in accordance with the provisions hereof.
Wilmington Trust Company, in its individual capacity, in the absence of
negligence or willful misconduct by any representative thereof, will have no
liability with respect to Escrowed Funds.
If, on the Cut-off Date, an amount equal to less than all of the Escrowed
Funds (other than Escrowed Funds referred to in the immediately preceding
paragraph) has been used to purchase Postponed Notes, on the next Special
Distribution Date occurring more than 20 days following the Cut-off Date (i) the
Company shall pay to the Trustee for deposit in the Special Payments Account, in
immediately available funds, an amount equal to the interest that would have
accrued on such Postponed Notes contemplated to be purchased with such unused
Escrowed Funds (other than Escrowed Funds referred to in the immediately
preceding paragraph) but not so purchased at a rate equal to the interest rate
applicable to the Certificates from the Issuance Date to, but not including,
such Special Distribution Date and (ii) the Trustee shall transfer such unused
Escrowed Funds and the amount paid by the Company pursuant to the immediately
preceding clause (i) to such Special Payments Account for distribution as a
Special Payment in accordance with the provisions hereof.
Section 2.03. Acceptance by TrusteeSection 2.03. Acceptance by
TrusteeSection 2.03. Acceptance by TrusteeSection 2.03. Acceptance by Trustee.
The Trustee, upon the execution and delivery of this Agreement, acknowledges its
acceptance of all right, title, and interest in and to the Equipment Notes
acquired pursuant to Section 2.02 hereof and the Participation Agreements and
declares that the Trustee holds and will hold such right, title, and interest,
together with all other property constituting the Trust Property, for the
benefit of all then present and future Certificateholders, upon the trusts
herein set forth. By its payment for and acceptance of each Certificate issued
to it under this Agreement, each initial Certificateholder as grantor of the
Trust thereby joins in the creation and declaration of the Trust.
Section 2.04. Limitation of PowersSection 2.04. Limitation of PowersSection
2.04. Limitation of PowersSection 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 ARTICLE III ARTICLE III ARTICLE
III
THE CERTIFICATES
Section 3.01. Title, Form, Denomination and Execution of
CertificatesSection 3.01. Title, Form, Denomination and Execution of
CertificatesSection 3.01. Title, Form, Denomination and Execution of
CertificatesSection 3.01. Title, Form, Denomination and Execution of
Certificates.
(a) The Certificates shall be known as the "7.64% 1996-1B 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 hereto, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Agreement and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange 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.
(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 $41,258,000.
(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 hereto (the "U.S. Global
Certificate"), duly executed and authenticated by the Trustee as hereinafter
provided. The U.S. Global Certificate will be registered in the name of a
nominee for the Depositary and deposited with the Trustee, as custodian for the
Depositary. 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 the Depositary or its nominee, or of the Trustee, as custodian for the
Depositary or its nominee, as hereinafter provided.
(d) Certificates offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of a single temporary global
Certificate in registered form, substantially in the form set forth as Exhibit A
hereto (the "Temporary Offshore Global Certificate") duly executed and
authenticated by the Trustee as hereinafter provided. The Temporary Offshore
Global Certificate will be registered in the name of a nominee of the Depositary
for credit to the account of the Agent Members acting as depositaries for
Euroclear and Cedel and deposited with the Trustee as custodian for the
Depositary. At any time following February 5, 1997 (the "Offshore Certificates
Exchange Date"), upon receipt by the Trustee of a certificate substantially in
the form of Exhibit B hereto, a single permanent global Certificate in
registered form substantially in the form set forth in Exhibit A (the "Permanent
Offshore Global Certificate"; and together with the Temporary Offshore Global
Certificate, the "Offshore Global Certificates"), duly executed and
authenticated by the Trustee as hereinafter provided, shall be registered in the
name of a nominee for the Depositary and deposited with the Trustee, as
custodian for the Depositary, and the Registrar shall reflect on its books and
records the date of such transfer and a decrease in the principal amount of any
Temporary Offshore Global Certificate in an amount equal to the principal amount
of the beneficial interest in such Temporary Offshore Global Certificate
transferred. 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 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 LegendsSection 3.02. Restrictive LegendsSection
3.02. Restrictive LegendsSection 3.02. Restrictive Legends.
(a) Subject to Section 3.06, each Global Certificate (other than the
Permanent Offshore 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 THREE 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, 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 CONNECTION WITH ANY TRANSFER OF
THIS CERTIFICATE WITHIN THREE 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. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE AND ATA 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 IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. 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 CertificatesSection 3.03. Authentication of
CertificatesSection 3.03. Authentication of CertificatesSection 3.03.
Authentication of Certificates.
(a) The Trustee shall duly execute, authenticate and deliver Certificates
in authorized denominations equalling in the aggregate the aggregate principal
amount of the Equipment Notes to be purchased by the Trustee pursuant to the
Participation Agreements and evidencing the entire ownership of the Trust.
(b) 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 ExchangeSection 3.04. Transfer and
ExchangeSection 3.04. Transfer and ExchangeSection 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, the Depositary
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 the Depositary (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 CertificatesSection 3.05. Book-Entry Provisions for U.S. Global
Certificate and Offshore Global CertificatesSection 3.05. Book-Entry Provisions
for U.S. Global Certificate and Offshore Global CertificatesSection 3.05.
Book-Entry Provisions for U.S. Global Certificate and Offshore Global
Certificates.
(a) Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Agreement with respect to any Global Certificate held
on their behalf by the Depositary, or the Trustee as its custodian, and the
Depositary 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 the Depositary or shall impair, as between the
Depositary 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 the Depositary 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 the
Depositary, 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 the Depositary and
the provisions of Section 3.06. Beneficial interests in the U.S. Global
Certificate or an Offshore Global Certificate shall be 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 the Depositary 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 the Depositary through its Clearing Agency Participants
in writing that the continuation of a book-entry system through the Depositary
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 the Depositary, 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 the Depositary
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 ProvisionsSection 3.06. Special Transfer
ProvisionsSection 3.06. Special Transfer ProvisionsSection 3.06. Special
Transfer Provisions. The following provisions shall apply to the Certificates:
(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 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 three 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 D 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, upon receipt by the Registrar of (x)
the documents, if any, required by paragraph (i) and (y) instructions given in
accordance with the Depositary'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 Temporary Offshore Global Certificate, 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
Certificate 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 has signed the certification provided for on the form
of Certificate 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 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 the Depositary'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 Temporary Offshore Global Certificate,
as the case may be, being transferred, and the Trustee shall cancel such
Physical Certificates or decrease the amount of such Temporary Offshore Global
Certificate so transferred.
(c) [Intentionally omitted].
(d) Transfers of Interests in the Permanent Offshore Global Certificate or
Offshore Physical Certificates. The Registrar shall register any transfer of
interests in the Permanent Offshore Global Certificate or Offshore Physical
Certificates 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) Prior to the Offshore Certificates Exchange Date, the Registrar shall
register any proposed transfer of a Certificate to a Non-U.S. Person upon
receipt of a certificate substantially in the form set forth as Exhibit C hereto
from the proposed transferor.
(ii) On and after the Offshore Certificates Exchange Date, the Registrar
shall register any proposed transfer to any Non-U.S. Person if the Certificate
to be transferred is a U.S. Physical Certificate or an interest in the U.S.
Global Certificate, upon receipt of a certificate substantially in the form of
Exhibit C from the proposed transferor. The Registrar shall promptly send a copy
of such certificate to the Company.
(iii) Upon receipt by the Registrar of (x) the documents, if any, required
by paragraph (ii) and (y) instructions in accordance with the Depositary's and
the Registrar's procedures, the Registrar shall reflect on its books and records
the date of such 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 (B) upon receipt
by the Registrar of instructions given in accordance with the Depositary'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 CertificatesSection
3.07. Mutilated, Destroyed, Lost or Stolen CertificatesSection 3.07. Mutilated,
Destroyed, Lost or Stolen CertificatesSection 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 OwnersSection 3.08. Persons Deemed
OwnersSection 3.08. Persons Deemed OwnersSection 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. CancellationSection 3.09. CancellationSection 3.09.
CancellationSection 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 PaymentsSection 3.10. Limitation
of Liability for PaymentsSection 3.10. Limitation of Liability for
PaymentsSection 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 CertificatesSection 3.11.Temporary
CertificatesSection 3.11.Temporary CertificatesSection 3Temporary 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 ARTICLE IV ARTICLE IV ARTICLE
IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments AccountSection
4.01.Certificate Account and Special Payments AccountSection 4.01. Certificate
Account and Special Payments AccountSection 4.01. Certificate Account and
Special Payments Account.
(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 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
AccountSection 4.02. Distributions from Certificate Account and Special Payments
AccountSection 4.02. Distributions from Certificate Account and Special Payments
AccountSection 4.02. Distributions from Certificate Account and Special Payments
Account.
(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 the Depositary (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 the Depositary (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 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 (taking into account any payment to be made by the Company pursuant
to Section 2.02(b)) and the amount thereof constituting principal, premium, if
any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a Regular
Distribution Date for the Certificates, the total amount to be received on such
date for each $1,000 face amount Certificate.
If the amount of premium, if any, payable upon the redemption or purchase
of an Equipment Note has not been calculated at the time that the Trustee mails
notice of a Special Payment, it shall be sufficient if the notice sets forth the
other amounts to be distributed and states that any premium received will also
be distributed.
If any redemption of the Equipment Notes held in the Trust is cancelled,
the Trustee, as soon as possible after learning 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 CertificateholdersSection 4.03. Statements to
CertificateholdersSection 4.03. Statements to CertificateholdersSection 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 (per a $1,000 face amount Certificate as to (i) and (ii) below):
(i) the amount of such distribution allocable to principal and the amount
allocable to premium, if any;
(ii) the amount of such distribution allocable to interest; and
(iii) the Pool Balance and the Pool Factor.
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) and (a)(ii) 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.
Section 4.04. Investment of Special Payment MoneysSection 4.04. Investment
of Special Payment MoneysSection 4.04. Investment of Special Payment
MoneysSection 4.04. Investment of Special Payment Moneys. Any money received by
the Trustee pursuant to Section 4.01(b) representing a Special Payment which is
not to be promptly distributed shall, to the extent practicable, be invested in
Permitted Investments by the Trustee as directed in writing by the Company
pending distribution of such Special Payment pursuant to Section 4.02. Any
investment made pursuant to this Section 4.04 shall be in such Permitted
Investments having maturities not later than the date that such moneys are
required to be used to make the payment required under Section 4.02 on the
applicable Special Distribution Date and the Trustee shall hold any such
Permitted Investments until maturity. The Trustee shall have no liability with
respect to any investment made pursuant to this Section 4.04, other than by
reason of the willful misconduct or negligence of the Trustee. All income and
earnings from such investments shall be distributed on such Special Distribution
Date as part of such Special Payment.
ARTICLE V ARTICLE V ARTICLE V ARTICLE
V
THE COMPANY
Section 5.01. Maintenance of Corporate ExistenceSection 5.01. Maintenance
of Corporate ExistenceSection 5.01. Maintenance of Corporate ExistenceSection
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, EtcSection 5.02. Consolidation,
Merger, EtcSection 5.02. Consolidation, Merger, EtcSection 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 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 or any Note Document to which it is a party.
ARTICLE VI ARTICLE VI ARTICLE VI ARTICLE
VI
DEFAULT
Section 6.01. Events of DefaultSection 6.01. Events of DefaultSection 6.01.
Events Events of DefaultSection 6.01. Events of Default.
(a) Exercise of Remedies: Upon the occurrence and during the continuation
of any Indenture Default under any Indenture, the Trustee may, to the extent it
is the Controlling Party at such time, direct the exercise of remedies as
provided in the Intercreditor Agreement.
(b) Purchase Rights of Certificateholders: (i) At any time after the
occurrence and during the continuation of a Triggering Event, each
Certificateholder shall have the right to purchase all, but not less than all,
of the Class A Certificates upon ten days' written notice to the Class A Trustee
and each other Certificateholder, provided that (A) if prior to the end of such
ten-day period any other Certificateholder notifies such purchasing
Certificateholder that such other Certificateholder wants to participate in such
purchase, then such other Certificateholder may join with the purchasing
Certificateholder to purchase all, but not less than all, of the Class A
Certificates pro rata based on the Fractional Undivided Interest in the Trust
held by each such Certificateholder and (B) if prior to the end of such ten-day
period any other Certificateholder fails to notify the purchasing
Certificateholder of such other Certificateholder's desire to participate in
such a purchase, then such other Certificateholder shall lose its right to
purchase the Class A Certificates pursuant to this Section 6.01(b)(i).
(ii) By acceptance of its Certificate, each Certificateholder agrees that
at any time after the occurrence and during the continuation of a Triggering
Event: 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 upon ten days' written
notice to the 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
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 or any other Note Document or on or in respect of the
Certificates; provided, however, 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
Class A Certificates and the 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 C Certificateholder(s) 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
Intercreditor Agreement, the Liquidity Facility, the Note Documents and all
Certificates 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 Intercreditor Agreement, the Liquidity Facility and the Note Documents. 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 A Certificate", "Class A Certificateholder", "Class A Trust", "Class A
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 NotesSection 6.02. Incidents
of Sale of Equipment NotesSection 6.02. Incidents of Sale of Equipment
NotesSection 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
SuitSection 6.03.Judicial Proceedings Instituted by Trustee; Trustee May Bring
SuitSection 6Judicial Proceedings Instituted by Trustee; Trustee May Bring
SuitSection 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 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 CertificateholdersSection 6.04. Control by
CertificateholdersSection 6.04. Control by CertificateholdersSection 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 DefaultsSection 6.05. Waiver of Past
DefaultsSection 6.05. Waiver of Past DefaultsSection 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
ImpairedSection 6.06.Right of Certificateholders to Receive Payments Not to Be
ImpairedSection 6Right of Certificateholders to Receive Payments Not to Be
ImpairedSection 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
ConditionsSection 6.07. Certificateholders May Not Bring Suit Except Under
Certain ConditionsSection 6.07. Certificateholders May Not Bring Suit Except
Under Certain ConditionsSection 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 CumulativeSection 6.08. Remedies CumulativeSection
6.08. Remedies CumulativeSection 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 CostsSection 6.09. Undertaking for
CostsSection 6.09. Undertaking for CostsSection 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 ARTICLE VII ARTICLE VII ARTICLE
VII
THE TRUSTEE
Section 7.01. Notice of DefaultsSection 7.01. Notice of DefaultsSection
7.01. Notice of DefaultsSection 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 TrusteeSection 7.02. Certain Rights of
TrusteeSection 7.02. Certain Rights of TrusteeSection 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
CertificatesSection 7.03. Not Responsible for Recitals or Issuance of
CertificatesSection 7.03. Not Responsible for Recitals or Issuance of
CertificatesSection 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, any Note Documents, any Participation
Agreement or any Intercreditor 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 and each
Participation Agreement 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 CertificatesSection 7.04. May Hold
CertificatesSection 7.04. May Hold CertificatesSection 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 TrustSection 7.05. Money Held in TrustSection
7.05. Money Held in TrustSection 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 ReimbursementSection 7.06. Compensation and
ReimbursementSection 7.06. Compensation and ReimbursementSection 7.06.
Compensation and Reimbursement. The Company agrees:
(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; EligibilitySection 7.07.Corporate
Trustee Required; EligibilitySection 7.07. Corporate Trustee Required;
EligibilitySection 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 SuccessorSection
7.08. Resignation and Removal: Appointment of SuccessorSection 7.08. Resignation
and Removal: Appointment of SuccessorSection 7.08. Resignation and Removal:
Appointment of Successor.
(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 SuccessorSection 7.09.
Acceptance of Appointment by SuccessorSection 7.09. Acceptance of Appointment by
SuccessorSection 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
BusinessSection 7.10. Merger, Conversion, Consolidation or Succession to
BusinessSection 7.10. Merger, Conversion, Consolidation or Succession to
BusinessSection 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 AgenciesSection 7.11. Maintenance of
AgenciesSection 7.11. Maintenance of AgenciesSection 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 TrustSection
7.12. Money for Certificate Payments to Be Held in TrustSection 7.12. Money for
Certificate Payments to Be Held in TrustSection 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
AgentSection 7.13. Registration of Equipment Notes in Name of Subordination
AgentSection 7.13. Registration of Equipment Notes in Name of Subordination
AgentSection 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 TrusteeSection 7.14.
Representations and Warranties of TrusteeSection 7.14. Representations and
Warranties of TrusteeSection 7.14. Representations and Warranties of Trustee.
The Trustee hereby represents and warrants 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 execute,
deliver and perform this Agreement, the Intercreditor Agreement and the
Participation Agreements and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement, the Intercreditor
Agreement and the Participation Agreements;
(c) the execution, delivery and performance by the Trustee of this
Agreement, the Intercreditor Agreement and the Participation Agreements (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 execution, delivery and performance by the Trustee of this
Agreement the Intercreditor Agreement and the Participation Agreements will not
require the authorization, consent, or approval of, the giving of notice to, the
filing or registration with, or the taking of any other action in respect of,
any governmental authority or agency of the United States or the State of
Delaware regulating the banking and corporate trust activities of the Trustee:
and
(e) this Agreement, the Participation Agreement, and the Intercreditor
Agreement 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 ReportingSection 7.15.
Withholding Taxes; Information ReportingSection 7.15. Withholding Taxes;
Information ReportingSection 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 LiensSection 7.16. Trustee's LiensSection 7.16.
Trustee's LiensSection 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 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 ClaimsSection 7.17. Preferential
Collection of ClaimsSection 7.17. Preferential Collection of ClaimsSection 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 31l(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 ARTICLE VIII ARTICLE VIII ARTICLE
VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and Addresses of
CertificateholdersSection 8.01. The Company to Furnish Trustee with Names and
Addresses of CertificateholdersSection 8.01. The Company to Furnish Trustee with
Names and Addresses of CertificateholdersSection 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
CertificateholdersSection 8.02. Preservation of Information; Communications to
CertificateholdersSection 8.02. Preservation of Information; Communications to
CertificateholdersSection 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 TrusteeSection 8.03. Reports by TrusteeSection
8.03. Reports by TrusteeSection 8.03. Reports by Trustee. Within 60 days after
May 15 of each year commencing with the first full year following the issuance
of the Certificates, 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 CompanySection 8.04. Reports by
the Guarantor and CompanySection 8.04. Reports by the Guarantor and
CompanySection 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 ARTICLE IX ARTICLE IX ARTICLE
IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
CertificateholdersSection 9.01. Supplemental Agreements Without Consent of
CertificateholdersSection 9.01. Supplemental Agreements Without Consent of
CertificateholdersSection 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 Intercreditor 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 herein contained; 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
conferred upon the Guarantor or the Company; or
(3) to correct or supplement any provision in this Agreement, the
Intercreditor Agreement or the Liquidity Facility which may be defective or
inconsistent with any other provision herein or to make any other provisions
with respect to matters or questions arising under this Agreement, the
Intercreditor 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; or
(4) 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
(5) 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;
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
CertificateholdersSection 9.02. Supplemental Agreements with Consent of
CertificateholdersSection 9.02. Supplemental Agreements with Consent of
CertificateholdersSection 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 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 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;
provided, however, that no such supplemental agreement shall, without the
consent of the Certificateholder of each Outstanding Certificate affected
thereby:
(1) reduce in any manner the amount of, or delay the timing of, any receipt
by the Trustee of payments on the Equipment Notes held in the Trust 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.
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 IndemnitySection 9.03.
Documents Affecting Immunity or IndemnitySection 9.03. Documents Affecting
Immunity or IndemnitySection 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 AgreementsSection 9.04. Execution
of Supplemental AgreementsSection 9.04. Execution of Supplemental
AgreementsSection 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 AgreementsSection 9.05. Effect of
Supplemental AgreementsSection 9.05. Effect of Supplemental AgreementsSection
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 ActSection 9.06. Conformity
with Trust Indenture ActSection 9.06. Conformity with Trust Indenture ActSection
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 AgreementsSection
9.07. Reference in Certificates to Supplemental AgreementsSection 9.07.
Reference in Certificates to Supplemental AgreementsSection 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 ARTICLE X ARTICLE X ARTICLE X
AMENDMENTS TO INDENTURES AND NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indentures and Other Note
DocumentsSection 10.01. Amendments and Supplements to Indentures and Other Note
DocumentsSection 10.01. Amendments and Supplements to Indentures and Other Note
DocumentsSection 10.01. Amendments and Supplements to Indentures and Other Note
Documents. In the event that the Trustee, as holder of any Equipment Notes in
trust for the benefit of the Certificateholders or as Controlling Party,
receives a request for a consent to any amendment, modification, waiver or
supplement under any Indenture or other Note Document, the Trustee shall
forthwith send a notice of such proposed amendment, modification, waiver or
supplement to each Certificateholder 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 any action
which a holder of such Equipment Note has the option to direct, (b) whether or
not to give or execute any waivers, consents, amendments, modifications or
supplements as a holder of such Equipment Note and (c) how to vote any Equipment
Note if a vote has been called for with respect thereto. Provided such a request
for Certificateholder Direction shall have been made, in directing any action or
casting any vote or giving any consent as the holder of any Equipment Note, the
Trustee shall vote for or give consent to any such action with respect to such
Equipment Note in the same proportion as that of (i) the aggregate face amounts
of all Certificates actually voted in favor of or for giving consent to such
action by Acts of Certificateholders to (ii) the aggregate face amount of all
Outstanding Certificates. For purposes of the immediately preceding sentence, a
Certificate shall have been "actually voted" if the Holder of such Certificate
has delivered to the Trustee an instrument evidencing such Holder's consent to
such Direction on or prior to the Business Day before the Trustee directs such
action or casts such vote or gives such consent. Notwithstanding the foregoing,
but subject to Section 6.04 and any Intercreditor Agreement, the Trustee may, in
its own discretion and at its own direction, consent and notify the relevant
Loan Trustee of such consent to any amendment, modification, waiver or
supplement under the relevant Indenture, the Liquidity Facility, or any Note
Document, if an Event of Default hereunder shall have occurred and be
continuing, or if such amendment, modification or waiver will not adversely
affect the interests of the Certificateholders.
ARTICLE XI ARTICLE XI ARTICLE XI ARTICLE
XI
TERMINATION OF TRUSTS
Section 11.01. Termination of the TrustSection 11.01. Termination of the
Trust2Section 11.01. Termination of the TrustSection 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
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, upon notice to the
Trustee, 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 ARTICLE XII ARTICLE XII ARTICLE
XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of CertificateholdersSection 12.01.
Limitation on Rights of CertificateholdersSection 12.01. Limitation on Rights of
CertificateholdersSection 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 CertificateholdersSection 12.02. Liabilities
of CertificateholdersSection 12.02. Liabilities of CertificateholdersSection
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 PaidSection 12.03.
Certificates Nonassessable and Fully PaidSection 12.03. Certificates
Nonassessable and Fully PaidSection 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 12.04. [Intentionally
omitted]Section 12.04. [Intentionally omitted]Section 12.04. [Intentionally
omitted].
Section 12.05. NoticesSection 12.05. NoticesSection 12.05. NoticesSection
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 Department
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 LawSection 12.06. Governing LawSection 12.06.
Governing LawSection 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 ProvisionsSection 12.07. Severability of
ProvisionsSection 12.07. Severability of ProvisionsSection 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 12.08. [Intentionally
omitted].Section 12.08. [Intentionally omitted].Section 12.08. [Intentionally
omitted].
Section 12.09. Effect of Headings and Table of ContentsSection 12.09.
Effect of Headings and Table of ContentsSection 12.09. Effect of Headings and
Table of ContentsSection 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 AssignsSection 12.10. Successors and
AssignsSection 12.10. Successors and AssignsSection 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 AgreementSection 12.11. Benefits of
AgreementSection 12.11. Benefits of AgreementSection 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 HolidaysSection 12.12. Legal HolidaysSection 12.12.
Legal HolidaysSection 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. CounterpartsSection 12.13. CounterpartsSection 12.13.
CounterpartsSection 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
CertificateholdersSection 12.14. Communication by Certificateholders with Other
CertificateholdersSection 12.14. Communication by Certificateholders with Other
CertificateholdersSection 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.
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: Executive Vice President and
Chief Financial Officer
WILMINGTON TRUST COMPANY, as Trustee
By /s/ Donald McKelcan
-----------------------------
Title: Vice President
SCHEDULE 1
Trust Indenture and Security Agreements
1) Trust Indenture and Security Agreement [ATA 1996 A], dated as of
December 16, 1996 between Wilmington Trust Company, as Indenture Trustee, and
First Security Bank, National Association, as Owner Trustee
2) Trust Indenture and Security Agreement [ATA 1996 B], dated as of
December 16, 1996 between Wilmington Trust Company, as Indenture Trustee, and
First Security Bank, National Association, as Owner Trustee
SCHEDULE 2
Participation Agreements
1) Participation Agreement [ATA 1996 A], dated as of December 16, 1996
among the Company, as Lessee, Finova Capital Corporation, as Owner Participant,
First Security Bank, National Association, as Owner Trustee, Wilmington Trust
Company, as Indenture Trustee, the Trustee, the Other Trustees, and the
Subordination Agent
2) Participation Agreement [ATA 1996 B], dated as of December 16, 1996
among the Company, as Lessee, General Electric Capital Corporation, as Owner
Participant, First Security Bank, National Association, as Owner Trustee,
Wilmington Trust Company, as Indenture Trustee, the Trustee, the Other Trustees,
and the Subordination Agent
--
EXHIBIT A
FORM OF CERTIFICATE
[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, ANY
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 IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT; (2) AGREES THAT IT WILL NOT WITHIN THREE 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., THE TRUSTEE OR ANY AFFILIATE OF ANY OF
SUCH PERSONS RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (B) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR
ACQUIRING $100,000 OR MORE AGGREGATE PRINCIPAL AMOUNT OF SUCH CERTIFICATE THAT,
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),
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) 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 CONNECTION WITH ANY
TRANSFER OF THIS CERTIFICATE WITHIN THREE 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., THE TRUSTEE OR ANY AFFILIATE OF ANY OF SUCH PERSONS
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.]1
[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.]2
AMERICAN TRANS AIR, INC. 1996-1B PASS THROUGH TRUST
Pass Through
Certificate, Series 1996-1B
Issuance Date: ______________________________
Final Legal Distribution Date: ______________________________
Evidencing a Fractional Undivided Interest
in The 1996-1B Trust, the Property of Which
Includes Certain Equipment Notes each
secured by Aircraft leased to American Trans
Air, Inc.
Certificate
No. $ Fractional Undivided Interest representing
___________% of the Trustper $1,000 of Reference Principal Amount
THIS CERTIFIES THAT ____________________________, for value received, is
the registered owner of a Fractional Undivided Interest in the amount of
__________ Dollars ($___________) (the "Reference Principal Amount") in the
American Trans Air 1996-1B Pass Through Trust (the "Trust") created by
Wilmington Trust Company, not in its individual capacity but solely as trustee
(the "Trustee"), pursuant to a Pass Through Trust Agreement dated as of December
16, 1996 (the "Agreement"), among the Trustee, Amtran, Inc., a corporation
incorporated under Indiana law (the "Guarantor"), and American Trans Air, Inc.,
a corporation incorporated under Indiana law (the "Company"), a summary of
certain of the pertinent provisions of which is set forth below. To the extent
not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Agreement. This Certificate is one of the duly
authorized Certificates designated as "Pass Through Certificates, Series
1996-1B" (herein called the "Certificates"). This Certificate is issued under
and is subject to the terms, provisions, and conditions of the Agreement and the
Intercreditor Agreement, to which agreements the Certificateholder of this
Certificate by virtue of the acceptance hereof assents and by which such
Certificateholder is bound. The property of the Trust includes certain Equipment
Notes and all rights of the Trust to receive any payments under the
Intercreditor Agreement and the Liquidity Facility (the "Trust Property"). Each
issue of the Equipment Notes is secured by a security interest in The Aircraft
leased to the Company.
Each of the Certificates represents a fractional undivided interest in the
Trust and the Trust Property, and has no rights, benefits or interest in respect
of any assets or property other than the Trust Property. The undivided
percentage interest in the Trust represented by each of this Certificate (as
specified above) and the other Pass Through Certificates, Series 1996-1B, was
determined on the basis of (x) the aggregate of the Reference Principal Amount
of this Certificate (as specified above) and of the other Pass Through
Certificates, Series 1996-1B and (y) the aggregate original principal amounts of
the Equipment Notes constituting the Trust Property.
Subject to and in accordance with the terms of the Agreement and the
Intercreditor Agreement, from funds then available to the Trustee, there will be
distributed on each March 26, June 26, September 26 and December 26 (a "Regular
Distribution Date"), commencing March 26, 1997, to the Person in whose name this
Certificate is registered at the close of business on the 15th day preceding the
Regular Distribution Date, an amount in respect of the Scheduled Payments on the
Equipment Notes due on such Regular Distribution Date, the receipt of which has
been confirmed by the Trustee, equal to the product of the percentage interest
in the Trust evidenced by this Certificate and an amount equal to the sum of
such Scheduled Payments. Subject to and in accordance with the terms of the
Agreement and the Intercreditor Agreement, in the event that Special Payments on
the Equipment Notes are received by the Trustee, from funds then available to
the Trustee, there shall be distributed on the applicable Special Distribution
Date, to the Person in whose name this Certificate is registered at the close of
business on the 15th day preceding the Special Distribution Date, an amount in
respect of such Special Payments on the Equipment Notes, the receipt of which
has been confirmed by the Trustee, equal to the product of the percentage
interest in the Trust evidenced by this Certificate and an amount equal to the
sum of such Special Payments so received. If a Regular Distribution Date or
Special Distribution Date is not a Business Day, distribution shall be made on
the immediately following Business Day with the same force and effect as if made
on such Regular Distribution Date or Special Distribution Date and no interest
shall accrue during the intervening period. The Trustee shall mail notice of
each Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Trustee by check
mailed to the Person entitled thereto, without the presentation or surrender of
this Certificate or the making of any notation hereon. Except as otherwise
provided in the Agreement and notwithstanding the above, the final distribution
on this Certificate will be made after notice mailed by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency of the Trustee specified in such notice.
The Certificates do not represent a direct obligation of, or an obligation
guaranteed by, or an interest in, the Guarantor, the Company or the Trustee or
any affiliate thereof. The Certificates are limited in right of payment, all as
more specifically set forth on the face hereof and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property to make such
payments in accordance with the terms of the Agreement. Each Certificateholder
of this Certificate, by its acceptance hereof, agrees that it will look solely
to the income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Agreement may
be examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Certificateholders under the Agreement at any time
by the Guarantor, the Company and the Trustee with the consent of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust. Any
such consent by the Certificateholder of this Certificate shall be conclusive
and binding on such Certificateholder and upon all future Certificateholders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Certificateholders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations set forth,
the transfer of this Certificate is registrable in the Register upon surrender
of this Certificate for registration of transfer at the offices or agencies
maintained by the Trustee in its capacity as Registrar, or by any successor
Registrar duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Trustee and the Registrar, duly executed by the
Certificateholder hereof or such Certificateholder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate Fractional Undivided Interest in the Trust will be
issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in minimum denominations of $100,000 Fractional Undivided Interest and
integral multiples of $1,000 in excess thereof except that one Certificate may
be in a denomination of less than $100,000 that is not a multiple of $1,000. As
provided in the Agreement and subject to certain limitations therein set forth,
the Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same aggregate Fractional Undivided Interest in the
Trust, as requested by the Certificateholder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee shall require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
The Trustee, the Registrar, and any agent of the Trustee or the Registrar
may treat the person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Trustee, the Registrar, nor any such
agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the Trust
created thereby shall terminate upon the distribution to Certificateholders of
all amounts required to be distributed to them pursuant to the Agreement and the
disposition of all property held as part of the Trust Property.
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES.
Unless the certificate of authentication hereon has been executed by the
Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
AMERICAN TRANS AIR, INC.
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Trustee
By
Title:
Dated:
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred
to in the within-mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Trustee
By:
Authorized Officer
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
please print or typewrite name and address including zip code of assignee
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
attorney to transfer said Certificate on the books of the Trustee with full
power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT PERMANENT OFFSHORE GLOBAL AND
OFFSHORE PHYSICAL CERTIFICATES]
In connection with any transfer of this Certificate occurring prior to the
date that is the earlier of the date of an effective Registration Statement or
December 27, 1999, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) this Certificate is being transferred in compliance with the
exemption from registration under the Securities Act of 1933, as amended,
provided by Rule 144A thereunder.
or
[ ] (b) this Certificate is being transferred other than in accordance with
(a) above and documents are being furnished that comply with the conditions of
transfer set forth in this Certificate and the Agreement.
If neither of the foregoing boxes is checked, the Trustee or other
Registrar shall not be obligated to register this Certificate in the name of any
Person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 3.06 of the Agreement
shall have been satisfied.
Date: [Name of Transferor]
NOTE: The signature must correspond
with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
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 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:
NOTE: To be executed by an executive officer.
EXHIBIT B
FORM OF CERTIFICATE FOR UNLEGENDED CERTIFICATES
[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 Trustee Administration
Re: American Trans Air 1996-1B Pass Through Trust, Pass
Through Trust Certificates (the "Certificates")
Dear Sirs:
This letter relates to U.S. $__________ Fractional Undivided Interest of
Certificates represented by a Certificate (the "Legended Certificate") which
bears a legend outlining restrictions upon transfer of such Legended
Certificate. Pursuant to Section 3.06 of the Pass Through Trust Agreement
relating to the Certificates dated as of December 16, 1996 (the "Trust
Agreement"), between American Trans Air, Inc. ("ATA") and you, we hereby certify
that we are (or we will hold such securities on behalf of) a person outside the
United States to whom the Certificates could be transferred in accordance with
Rule 904 of Regulation S promulgated under the U.S. Securities Act of 1933, as
amended. Accordingly, you are hereby requested to exchange the legended
certificate for an unlegended certificate representing an identical principal
amount of Certificates, all in the manner provided for in the Trust Agreement.
You and ATA 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 Certificateholder]
By:
Authorized Signature
EXHIBIT C
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 Trustee Administration
Re: American Trans Air 1996-1B Pass Through Trust (the "Trust"),
7.64% American Trans Air Pass Through Certificates
Series 1996-1B (the "Certificates")
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:_______________________
Authorized Signature
EXHIBIT D
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 Trustee Administration
Re: American Trans Air 1996-1B Pass-Through Trust (the "Trust"),
7.64% American Trans Air Pass Through Certificates Series
1996-1B (the "Certificates")
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 16, 1996 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 Transferor]
By:
Authorized Signature
AMTRAN, INC.
AMERICAN TRANS AIR, INC.
and
WILMINGTON TRUST COMPANY
as Trustee
PASS THROUGH TRUST AGREEMENT
Dated as of December 16, 1996
American Trans Air 1996-1B Pass Through Trust
7.64% American Trans Air 1996-1B Pass Through Certificates
Page
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions......................................................2
Section 1.02. Compliance Certificates and Opinions............................12
Section 1.03. Form of Documents Delivered to Trustee..........................13
Section 1.04. Acts of Certificateholders......................................13
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF EQUIPMENT NOTES
Section 2.01. [Intentionally omitted].........................................15
Section 2.02. Issuance of Certificates; Acquisition of Equipment Notes........15
Section 2.03. Acceptance by Trustee...........................................17
Section 2.04. Limitation of Powers............................................17
ARTICLE III
THE CERTIFICATES
Section 3.01. Title, Form, Denomination and Execution of Certificates.........17
Section 3.02. Restrictive Legends.............................................19
Section 3.03. Authentication of Certificates..................................21
Section 3.04. Transfer and Exchange...........................................21
Section 3.05. Book-Entry Provisions for U.S. Global Certificate and Offshore
Global Certificates............................................22
Section 3.06. Special Transfer Provisions.....................................23
Section 3.07. Mutilated, Destroyed, Lost or Stolen Certificates...............26
Section 3.08. Persons Deemed Owners...........................................27
Section 3.09. Cancellation....................................................27
Section 3.10. Limitation of Liability for Payments............................27
Section 3.11. Temporary Certificates..........................................27
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account................28
Section 4.02. Distributions from Certificate Account and Special Payments
Account.........................................................28
Section 4.03. Statements to Certificateholders................................30
Section 4.04. Investment of Special Payment Moneys............................31
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence..............................31
Section 5.02. Consolidation, Merger, Etc......................................31
ARTICLE VI
DEFAULT
Section 6.01. Events of Default...............................................33
Section 6.02. Incidents of Sale of Equipment Notes............................35
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May Bring
Suit............................................................35
Section 6.04. Control by Certificateholders.................................. 35
Section 6.05. Waiver of Past Defaults........................................ 36
Section 6.06. Right of Certificateholders to Receive Payments Not to Be
Impaired........................................................36
Section 6.07. Certificateholders May Not Bring Suit Except Under Certain
Conditions......................................................37
Section 6.08. Remedies Cumulative.............................................37
Section 6.09. Undertaking for Costs...........................................38
ARTICLE VII
THE TRUSTEE
Section 7.01. Notice of Defaults..............................................38
Section 7.02. Certain Rights of Trustee.......................................38
Section 7.03. Not Responsible for Recitals or Issuance of Certificates........40
Section 7.04. May Hold Certificates...........................................40
Section 7.05. Money Held in Trust.............................................40
Section 7.06. Compensation and Reimbursement..................................40
Section 7.07. Corporate Trustee Required; Eligibility.........................42
Section 7.08. Resignation and Removal: Appointment of Successor...............42
Section 7.09. Acceptance of Appointment by Successor..........................44
Section 7.10. Merger, Conversion, Consolidation or Succession to Business.....44
Section 7.11. Maintenance of Agencies.........................................45
Section 7.12. Money for Certificate Payments to Be Held in Trust..............46
Section 7.13. Registration of Equipment Notes in Name of Subordination Agent
Agent...........................................................46
Section 7.14. Representations and Warranties of Trustee.......................47
Section 7.15. Withholding Taxes; Information Reporting........................48
Section 7.16. Trustee's Liens.................................................48
Section 7.17. Preferential Collection of Claims...............................48
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and Addresses of
Certificateholders..............................................48
Section 8.02. Preservation of Information; Communications to Certificateholders
................................................................49
Section 8.03. Reports by Trustee..............................................49
Section 8.04. Reports by the Guarantor and Company............................49
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of Certificateholders...50
Section 9.02. Supplemental Agreements with Consent of Certificateholders......51
Section 9.03. Documents Affecting Immunity or Indemnity.......................52
Section 9.04. Execution of Supplemental Agreements............................52
Section 9.05. Effect of Supplemental Agreements...............................52
Section 9.06. Conformity with Trust Indenture Act.............................53
Section 9.07. Reference in Certificates to Supplemental Agreements............53
ARTICLE X
AMENDMENTS TO INDENTURES AND NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indentures and Other Note ......
Documents......................................................53
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01. Termination of the Trust..................................54
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders.....................55
Section 12.02. Liabilities of Certificateholders..............................55
Section 12.03. Certificates Nonassessable and Fully Paid......................55
Section 12.04. [Intentionally omitted]........................................55
Section 12.05. Notices........................................................55
Section 12.06. Governing Law..................................................57
Section 12.07. Severability of Provisions.....................................57
Section 12.08. [Intentionally omitted]........................................57
Section 12.09. Effect of Headings and Table of Contents.......................57
Section 12.10. Successors and Assigns.........................................57
Section 12.11. Benefits of Agreement..........................................57
Section 12.12. Legal Holidays.................................................57
Section 12.13. Counterparts...................................................58
Section 12.14. Communication by Certificateholders with Other
Certificateholders.............................................58
Schedule 1 - Trust Indenture and Security Agreements
Schedule 2 - Participation Agreements
Exhibit A - Form of Certificate
Exhibit B - Form of Certificate for Unlegended Certificates
Exhibit C - Form of Certificate to be Delivered in connection with
Transfer/Pursuant to Regulation S
Exhibit D - Form of Certificate to be Delivered in Connection with
Transfers to Non-QIB Accredited Investors
1 Not to be included on the face of the Permanent Offshore Global Certificate.
2 To be included on the face of each Global Certificate.