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EXHIBIT 4.1
AMERICA WEST AIRLINES, INC.
and
FLEET NATIONAL BANK,
as Trustee
PASS THROUGH TRUST AGREEMENT
Dated as of November 26, 1996
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Reconciliation and tie between Pass Through Trust Agreement dated as of November
26, 1996 and the Trust Indenture Act of 1939. This reconciliation does not
constitute part of the Pass Through Trust Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
------------------- ------------------
310(a)(1) 7.07
(a)(2) 7.07
312(a) 3.09; 8.01; 8.02
313(a) 7.06; 8.03
314(a) 8.04(a) - (c)
(a)(4) 8.04(d)
(c)(1) 1.02
(c)(2) 1.02
(d)(1) 7.12; 11.01
(d)(2) 7.12; 11.01
(d)(3) 2.01
(e) 1.02
315(b) 7.01
316(a)(last sentence) 1.04(d)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(d)
317(a)(1) 6.03
(b) 7.12
318(a) 12.08
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS....................................................... 2
Section 1.01. Definitions............................... 2
Section 1.02. Compliance Certificates and Opinions...... 12
Section 1.03. Form of Documents Delivered to Trustee.... 13
Section 1.04. Acts of Certificateholders................ 13
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES; ACQUISITION OF
EQUIPMENT NOTES................................................... 16
Section 2.01. Amount Unlimited; Issuable in Series...... 16
Section 2.02. Acquisition of Equipment Notes............ 18
Section 2.03. Acceptance by Trustee..................... 20
Section 2.04. Limitation of Powers...................... 20
ARTICLE III
THE CERTIFICATES.................................................. 21
Section 3.01. Form, Denomination and Execution of
Certificates.............................. 21
Section 3.02. Authentication of Certificates............ 22
Section 3.03. Temporary Certificates.................... 22
Section 3.04. Registration of Transfer and Exchange of
Certificates.............................. 22
Section 3.05. Mutilated, Destroyed, Lost or Stolen
Certificates.............................. 23
Section 3.06. Persons Deemed Owners..................... 24
Section 3.07. Cancellation.............................. 24
Section 3.08. Limitation of Liability for Payments...... 24
Section 3.09. Book-Entry and Definitive Certificates.... 24
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS................... 27
Section 4.01. Certificate Account and Special Payments
Account................................... 27
Section 4.02. Distributions from Certificate Account
and Special Payments Account.............. 27
Section 4.03. Statements to Certificateholders.......... 29
Section 4.04. Investment of Special Payment Moneys...... 30
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ARTICLE V
THE COMPANY....................................................... 30
Section 5.01. Maintenance of Corporate Existence........ 30
Section 5.02. Consolidation, Merger, Etc................ 30
ARTICLE VI
DEFAULT........................................................... 32
Section 6.01. Events of Default......................... 32
Section 6.02. Incidents of Sale of Equipment Notes...... 33
Section 6.03. Judicial Proceedings Instituted by
Trustee; Trustee May Bring Suit........... 34
Section 6.04. Control by Certificateholders............. 34
Section 6.05. Waiver of Past Defaults................... 35
Section 6.06. Right of Certificateholders to Receive
Payments Not To Be Impaired............... 35
Section 6.07. Certificateholders May Not Bring Suit
Except Under Certain Conditions........... 36
Section 6.08. Remedies Cumulative....................... 36
Section 6.09. Undertaking for Costs..................... 37
ARTICLE VII
THE TRUSTEE....................................................... 37
Section 7.01. Notice of Defaults........................ 37
Section 7.02. Certain Rights of Trustee................. 37
Section 7.03. Not Responsible for Recitals or Issuance
of Certificates........................... 39
Section 7.04. May Hold Certificates..................... 39
Section 7.05. Money Held in Trust....................... 39
Section 7.06. Compensation and Reimbursement............ 39
Section 7.07. Corporate Trustee Required; Eligibility... 41
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
Trustee's Name............................ 47
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
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ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE.................. 49
Section 8.01. The Company to Furnish Trustee with
Names and Addresses of
Certificateholders........................ 49
Section 8.02. Preservation of Information;
Communications to Certificateholders...... 49
Section 8.03. Reports by Trustee........................ 49
Section 8.04. Reports by the Company.................... 49
ARTICLE IX
SUPPLEMENTAL AGREEMENTS........................................... 50
Section 9.01. Supplemental Agreements Without Consent
of Certificateholders..................... 50
Section 9.02. Supplemental Agreements with Consent of
Certificateholders........................ 52
Section 9.03. Documents Affecting Immunity or
Indemnity................................. 53
Section 9.04. Execution of Supplemental Agreements...... 53
Section 9.05. Effect of Supplemental Agreements......... 53
Section 9.06. Conformity with Trust Indenture Act....... 53
Section 9.07. Reference in Certificates to
Supplemental Agreements................... 53
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS........................ 54
Section 10.01. Amendments and Supplements to Indenture
and Other Note Documents................. 54
ARTICLE XI
TERMINATION OF TRUSTS............................................. 55
Section 11.01. Termination of the Trusts................ 55
ARTICLE XII
MISCELLANEOUS PROVISIONS.......................................... 56
Section 12.01. Limitation on Rights of
Certificateholders....................... 56
Section 12.02. Liabilities of Certificateholders........ 56
Section 12.03. Certificates Nonassessable and Fully
Paid..................................... 56
Section 12.04. Registration of Equipment Notes in Name
of Subordination Agent................... 57
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Section 12.05. Notices.................................. 57
Section 12.06. Governing Law............................ 58
Section 12.07. Severability of Provisions............... 58
Section 12.08. Trust Indenture Act Controls............. 58
Section 12.09. Effect of Headings and Table of
Contents................................. 58
Section 12.10. Successors and Assigns................... 59
Section 12.11. Benefits of Agreement.................... 59
Section 12.12. Legal Holidays........................... 59
Section 12.13. Counterparts............................. 59
Section 12.14. Communication by Certificateholders
with Other Certificateholders............ 59
Exhibit A Form of Certificate
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This PASS THROUGH TRUST AGREEMENT, dated as of November 26,
1996, between America West Airlines, Inc., a Delaware corporation (the
"Company"), and Fleet National Bank, a national banking association, as Trustee,
is made with respect to the formation from time to time of separate America West
Airlines Pass Through Trusts, and the issuance from time to time of separate
series of Pass Through Certificates representing fractional undivided interests
in the respective Trusts.
W I T N E S S E T H:
WHEREAS, from time to time the Company and the Trustee may
enter into a Trust Supplement (this and certain other defined terms used herein
are defined in Section 1.01) pursuant to which the Trustee shall declare the
creation of a separate Trust for the benefit of the Holders of the series of
Certificates to be issued in respect of such Trust, and the initial Holders of
the Certificates of such series, as the grantors of such Trust, by their
respective acceptances of the Certificates of such series, shall join in the
creation of such Trust with the Trustee;
WHEREAS, all Certificates to be issued in respect of each
separate Trust will be issued as a separate series pursuant to this Agreement,
will evidence fractional undivided interests in such Trust and will have no
rights, benefits or interests in respect of any other separate Trust or the
property held therein, subject, however, to the provisions of any Intercreditor
Agreement to which one or more Trusts may be a party;
WHEREAS, from time to time, pursuant to the terms and
conditions of this Agreement with respect to each separate Trust formed
hereunder, the Trustee on behalf of such Trust shall purchase one or more issues
of Equipment Notes having the same interest rate as, and final maturity dates
not later than the final Regular Distribution Date of, the series of
Certificates issued in respect of such Trust and shall hold such Equipment Notes
in trust for the benefit of the Certificateholders of such Trust;
WHEREAS, to facilitate the sale of Equipment Notes to, and the
purchase of Equipment Notes by, the Trustee on behalf of each Trust created from
time to time pursuant to this Agreement, the Company as the "issuer", as such
term is defined in and solely for purposes of the Securities Act of 1933, as
amended (the "Securities Act"), of the Certificates to be issued in respect of
each Trust and as the "obligor", as such term is defined in and solely for
purposes of the Trust Indenture Act of 1939, as amended, has duly authorized the
execution and delivery of this Basic Agreement and each Trust Supplement with
respect to all such Certificates and is undertaking to perform certain
administrative and ministerial duties hereunder and is also undertaking to pay
the fees and expenses of the Trustee;
WHEREAS, this Basic Agreement, as supplemented from time to
time, is subject to the provisions of the Trust Indenture Act of 1939, as
amended, and shall to the extent applicable, be governed by such provisions;
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NOW THEREFORE, in consideration of the mutual agreements
herein contained, and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this
Basic Agreement, except as otherwise expressly provided herein or in a Trust
Supplement 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 therein, have the
meanings assigned to them therein;
(3) all references in this Basic Agreement to designated
"Articles", "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Basic Agreement;
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Basic Agreement as a whole and
not to any particular Article, Section or other subdivision;
(5) the term "this Agreement" (as distinguished from "this
Basic Agreement") refers, unless the context otherwise requires, to
this Basic Agreement as supplemented by the Trust Supplement creating a
particular Trust and establishing the series of Certificates issued or
to be issued in respect thereof, with reference to such Trust and such
series of Certificates, as this Basic Agreement as so supplemented may
be further supplemented with respect to such Trust and such series of
Certificates; and
(6) all references in this Agreement to a "series" of
Certificates shall be construed to mean a series of Certificates issued
under the related Trust Supplement; and all references in this Basic
Agreement or in any Trust Supplement, Intercreditor Agreement,
Liquidity Facility, Refunding Agreement, or Note Document to a "class"
of Certificates shall be construed to refer to any series of
Certificates that have been or will be issued concurrently with, or are
intended to be considered concurrently with, one or more other series
of Certificates, each established under separate Trust Supplements to
purchase related classes of Equipment Notes issued by one or more Owner
Trustees that are subject to the same Intercreditor Agreement.
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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.
Aircraft: Means one or more aircraft, including engines
therefor, owned by or leased to the Company and securing one or more Equipment
Notes.
Authorized Agent: With respect to the Certificates of any
series, means any Paying Agent or Registrar for the Certificates of such series.
Avoidable Tax: Has the meaning specified in Section 7.08(e).
Basic Agreement: Means this Pass Through Trust Agreement, as
the same may from time to time be supplemented, amended or modified, but does
not include any Trust Supplement.
Book-Entry Certificates: With respect to the Certificates of
any series, means Certificates of such series which are issued in book-entry
form, ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 3.09.
Business Day: With respect to the Certificates of any series
and unless specified otherwise in any Trust Supplement, means any day other than
a Saturday, a Sunday or a day on which commercial banks are required or
authorized to close in New York, New York or Hartford, Connecticut.
Certificate: Means any one of the Certificates, substantially
in the form of Exhibit A hereto, and any such Certificates issued in exchange
therefor or replacement thereof pursuant to this Agreement.
Certificate Account: With respect to the Certificates of any
series, means the account or accounts created and maintained for such series
pursuant to Section 4.01(a) and the related Trust Supplement.
Certificateholder or Holder: With respect to the Certificates
of any series, means the Person in whose name a Certificate of such series is
registered in the Register for Certificates of such series.
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Certificate Owner: With respect to the Certificates of any
series, means, for purposes of Section 3.09, the Person who owns a Book-Entry
Certificate of such series.
Clearing Agency: Means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended.
Clearing Agency Participant: Means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects, directly or indirectly, book-entry transfers and
pledges of securities deposited with the Clearing Agency.
Company: Means America West Airlines, Inc., a Delaware
corporation, or its successor in interest pursuant to Section 5.02, or any other
obligor (within the meaning of the Trust Indenture Act) with respect to any
series of Certificates.
Controlling Party: Means the Person entitled to act as such
pursuant to the terms of any Intercreditor Agreement.
Corporate Trust Office: With respect to the Trustee, the
Subordination Agent or any Indenture 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: With respect to the Certificates of any series,
means the date designated as such in the Trust Supplement establishing such
series.
Definitive Certificates: With respect to the Certificate of
any series, has the meaning specified in Section 3.09.
Direction: Has the meaning specified in Section 1.04(c).
Distribution Date: Means any Regular Distribution Date or
Special Distribution Date as the context requires.
Equipment: Means the Aircraft and Spare Engines, collectively.
Equipment Note: With respect to the Certificates of any
series, means the equipment notes or other promissory notes, loan certificates
or other evidence of obligation issued under the related Indenture.
ERISA: Means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor federal statute.
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Escrow Account: With respect to the Certificates of any
series, has the meaning specified in Section 2.02(b).
Escrowed Funds: With respect to any Trust, has the meaning
specified in Section 2.02(b).
Event of Default: Means, in respect of any Trust, the
occurrence of an Indenture Default under any Indenture pursuant to which
Equipment Notes held by such Trust were issued.
Final Legal Distribution Date: With respect to the
Certificates of any series, means the date designated as such in the Trust
Supplement establishing such series.
Fractional Undivided Interest: Means the fractional undivided
interest in a Trust that is evidenced by a Certificate relating to such Trust.
Indenture: With respect to any Trust, means each of the one or
more separate trust indentures and security agreements, loan agreements and
mortgages and/or other agreements relating to indebtedness and security
interests with respect thereto described in, or on a schedule attached to, this
Agreement which relates to an issue of Equipment Notes to be held in such Trust
and an indenture, loan agreement and mortgage or other agreement having
substantially the same terms and conditions as such trust indenture and security
agreement, loan agreement and mortgage or other agreement relating to
indebtedness and security interests with respect thereto and which relates to
Substitute Equipment; 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
Indenture Event of Default (as such term is defined in such Indenture).
Indenture 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 Indenture
Trustee as such trustee; and Indenture Trustees means all of the Indenture
Trustees under the Indentures.
Initial Regular Distribution Date: With respect to the
Certificates of any series, means the first Regular Distribution Date on which a
Scheduled Payment is to be made.
Intercreditor Agreement: Means any agreement by and among one
or more Trusts, one or more Liquidity Providers and a Subordination Agent
providing for the distribution of payments made in respect of Equipment Notes
held by such Trusts.
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Issuance Date: With respect to the Certificates of any series,
means the date of the issuance of such Certificates.
Lease: Means any lease between an Owner Trustee, as the
lessor, and the Company, as the lessee, referred to in the related Indenture, as
each such lease may be amended or supplemented in accordance with its respective
terms; and Leases means all such Leases.
Liquidity Facility: With respect to the Certificates of any
Series, means any revolving credit agreement or similar facility relating to the
Certificates of such series between a Liquidity Provider and a Subordination
Agent, as amended, replaced, supplemented or otherwise modified from time to
time in accordance with its terms and the terms of any Intercreditor Agreement.
Liquidity Provider: With respect to the Certificates of any
Series, means a bank or other financial institution that agrees to provide a
Liquidity Facility for the benefit of the holders of Certificates of such
series.
Note Documents: With respect to any Equipment Note, means the
related Indenture, Refunding Agreement, guarantees of such Equipment Note, if
any and if the related Equipment is leased to the Company, the related Lease and
the related Owner Trustee's Purchase Agreement.
Officer's Certificate: Means a certificate signed, (a) in the
case of the Company, by (i) the Chairman or Vice Chairman of the Board of
Directors, the President or any Executive Vice President or Senior Vice
President of the Company, signing alone or (ii) any Vice President of the
Company signing together with the Secretary, the Assistant Secretary, the
Treasurer or any Assistant Treasurer of the Company, or (b) in the case of the
Trustee or an Owner Trustee or an Indenture Trustee, a Responsible Officer of
the Trustee or such Owner Trustee or such Indenture Trustee, as the case may be.
Opinion of Counsel: Means a written opinion of legal counsel
who (a) in the case of counsel for the Company, may be (i) a senior attorney in
rank of the officers of the Company a principal duty of which is furnishing
advice as to legal matters, (ii) Andrews & Kurth L.L.P., (iii) Latham & Watkins,
or (iv) such other counsel designated by the Company and reasonably acceptable
to the Trustee and (b) in the case of any Owner Trustee or any Indenture
Trustee, may be such counsel as may be designated by any of them whether or not
such counsel is an employee of any of them, and who shall be reasonably
acceptable to the Trustee.
Other Agreements: Has the meaning specified in Section
6.01(b).
Outstanding: With respect to Certificates of any series,
means, as of the date of determination, all Certificates
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of such series theretofore authenticated and delivered under this Agreement,
except
(i) Certificates of such series theretofore
canceled by the Registrar or delivered to the Trustee or the
Registrar for cancellation;
(ii) All of the Certificates of such series if money in
the full amount required to make the final distribution with respect to
such series pursuant to Section 11.01 hereof has been theretofore
deposited with the Trustee in trust for the Holders of the Certificates
of such series as provided in Section 4.01 pending distribution of such
money to such Certificateholders pursuant to such final distribution
payment; and
(iii) Certificates of such series in exchange for or in
lieu of which other Certificates of such series have been authenticated
and delivered pursuant to this Agreement.
Owner Participant: With respect to any Equipment Note, means
the "Owner Participant", if any, as referred to in the Indenture pursuant to
which such Equipment Note is issued and any permitted successor or assign of
such Owner Participant; and Owner Participants at any time of determination
means all of the Owner Participants thus referred to in the Indentures.
Owner Trustee: With respect to any Equipment Note, means the
"Owner Trustee", if any, as referred to in the Indenture pursuant to which such
Equipment Note is issued, not in its individual capacity but solely as trustee;
and Owner Trustees means all of the Owner Trustees party to any of the
respective Indentures.
Owner Trustee's Purchase Agreement: With respect to the
Certificates of any series, if the related Equipment is leased to the Company,
has the meaning specified for the term Purchase Agreement in the related Lease.
Paying Agent: With respect to the Certificates of any series,
means the paying agent maintained and appointed for the Certificates of such
series pursuant to Section 7.11.
Permitted Investments: Means obligations of the United States
of America or agencies or instrumentalities thereof for the payment of which the
full faith and credit of the United States of America is pledged, maturing in
not more than 60 days or such lesser time as is necessary for payment of any
Special Payments on a Special Distribution Date.
Person: Means any person, including any individual
corporation, partnership, joint venture, association, joint stock company,
trust, unincorporated organization, or government or any agency or political
subdivision thereof.
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Pool Balance: Means, with respect to the Certificates of any
series, as of any date, (i) the original aggregate face amount of the
Certificates of such series less (ii) the aggregate amount of all payments made
in respect of such Certificates other than payments made in respect of interest
or premium thereon or reimbursement of any costs or expenses incurred in
connection therewith. The Pool Balance of any series of Certificates 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
related Trust and the distribution thereof to be made on such Distribution Date.
Pool Factor: Means, with respect to any series of Certificates
as of any date, the quotient (rounded to the seventh decimal place) computed by
dividing (i) the Pool Balance of such series as at such date by (ii) the
original aggregate face amount of the Certificates of such series. The Pool
Factor as of any Distribution Date shall be computed after giving effect to the
payment of principal, if any, on the Equipment Notes or other Trust Property and
the distribution thereof to be made on such Distribution Date.
Postponed Notes: With respect to any Trust or the related
series of Certificates, 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: With respect to any Trust or the related
series of Certificates, means an Officer's Certificate of the Company signed by
an officer of the Company (1) requesting that the Trustee temporarily postpone
purchase of the related Equipment Notes to a date later than the Issuance Date
of such series of Certificates, (2) identifying the amount of the purchase price
of each such Equipment Note and the aggregate purchase price for all such
Equipment Notes, (3) setting forth the reasons for such postponement and (4)
with respect to each such Equipment Note, either (a) setting or resetting a new
Transfer Date (which shall be on or prior to the applicable Cutoff 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.
PTC Event of Default: With respect to the Certificates of any
series, has the meaning specified in the Trust Supplement establishing each
series.
Record Date: With respect to any Trust or the related series
of Certificates, means (i) for Scheduled Payments to be distributed on any
Regular Distribution Date, other than the final distribution, with respect to
such series, the 15th day (whether or not a Business Day) preceding such Regular
Distribution Date, and (ii) for Special Payments to be distributed on any
Special Distribution Date, other than the
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final distribution, with respect to such series, the 15th day (whether or not a
Business Day) preceding such Special Distribution Date.
Refunding Agreement: With respect to the Certificates of any
series, means any note purchase, refunding, participation or similar agreement
providing for, among other things, the purchase of Equipment Notes by the
Trustee on behalf of the relevant Trust, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms; and Refunding Agreements means all such agreements.
Register and Registrar: With respect to the Certificates of
any series, mean the register maintained and the registrar appointed for such
series pursuant to Sections 3.04 and 7.11.
Regular Distribution Date: With respect to distributions of
Scheduled Payments in respect of any series of 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 such Trust has been made.
Request: Means a request by the Company setting forth the
subject matter of the request accompanied by an Officer's Certificate and an
Opinion of Counsel as provided in Section 1.02 of this Basic Agreement.
Responsible Officer: With respect to any Trustee, any
Indenture Trustee and any Owner Trustee, means any officer in the corporate
trust division or department of the Trustee, Indenture 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.
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 of any series with funds drawn under the Liquidity
Facility for such series (other than any such payment which is not in fact
received by the Trustee or any Subordination Agent within five days of the date
on which such payment is scheduled to be made) due from the obligor thereon
which payment represents the installment of principal at the stated maturity of
such installment of principal on such Equipment Note, the payment of regularly
scheduled interest accrued on the unpaid principal amount of such Equipment
Note, or both; provided that any payment of principal, premium, if any, or
interest resulting from the redemption or purchase of any Equipment Note shall
not constitute a Scheduled Payment.
SEC: Means the Securities and Exchange Commission, as from
time to time constituted or created under the Securities Exchange Act of 1934,
or, if at any time after the execution of
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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.
Spare Engine: Means one or more spare engines, owned by or
leased to the Company and securing one or more Equipment Notes.
Special Distribution Date: With respect to the Certificates of
any series, means the date specified as such in the related Trust Supplement.
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: With respect to the Certificates of
any series, means the account or accounts created and maintained for such series
pursuant to Section 4.01(b) and the related Trust Supplement.
Specified Investments: With respect to any Trust, means,
unless otherwise specified in the related Trust Supplement, (i) direct
obligations of the United States or any agency thereof the obligations of which
bear the full faith and credit of the United States, (ii) obligations fully
guaranteed by the United States, or (iii) certificates of deposit issued by any
commercial bank incorporated under the laws of the United States or one of the
States thereof (but not exceeding $10,000,000 in principal amount or deposits at
any given time for any one bank) having a combined capital surplus and undivided
income of at least $750,000,000; (iv) repurchase agreements (but not exceeding
$10,000,000 in principal amount or deposits at any given time for any one bank)
with any financial institution having combined capital surplus and undivided
income of at least $750,000,000 and fully collateralized by an obligation of the
type described in clauses (i) through (iii) as collateral pursuant to which an
entity referred to in clause (iii) above or another financial institution having
a net worth of at least $750,000,000 and having a rating of "B" or better from
Thomson BankWatch, Inc. is obligated to repurchase any such obligation not later
than ninety (90) days after the purchase of any such obligation and (v) money
market funds which invest solely in obligations described in clause (i) or (ii);
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 such Trust by more than 20 days.
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Subordination Agent: Shall have the meaning specified therefor
in any Intercreditor Agreement.
Substitute Equipment: With respect to any Trust, (i) means any
Aircraft of a type specified in this Agreement and, at the election of the
Company, substituted prior to the applicable Cut-off Date, if any, pursuant to
the terms of this Agreement and (ii) means any Spare Engine of a type specified
in this Agreement and, at the election of the Company, substituted prior to the
applicable Cut-off Date, if any, pursuant to the terms of this Agreement.
Transfer Date: Has the meaning assigned to that term in a
related Refunding Agreement or any of the terms "Delivery Date", "Funding Date"
or "Closing Date" in a related Refunding Agreement.
Triggering Event: Shall have the meaning specified therefor in
any Intercreditor Agreement.
Trust: With respect to the Certificates of any series, means
the trust created pursuant to the Basic Agreement and the related Trust
Supplement for the benefit of the Holders of the Certificates of such series.
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 Basic Agreement was executed.
Trust Property: With respect to any Trust means (i) the
Equipment Notes held as the property of such Trust, all monies at any time paid
thereon and all monies due and to become due thereunder, (ii) the rights of such
Trust under any Intercreditor Agreement, including all monies receivable in
respect of such rights, (iii) all monies receivable under any Liquidity Facility
for such Trust and (iv) funds from time to time deposited in the related Escrow
Account, the related Certificate Account and the related Special Payments
Account and any proceeds from the sale by the Trustee pursuant to Article VI
hereof of any such Equipment Note.
Trust Supplement: Means an agreement supplemental hereto
pursuant to which (i) a separate Trust is created for the benefit of the Holders
of the Certificates of a series, (ii) the issuance of the Certificates of such
series representing fractional undivided interests in such Trust is authorized
and (iii) the terms of the Certificates of such series are established.
Trustee: Means the institution executing this Basic Agreement
as Trustee, or its successor in interest, and any successor trustee appointed as
provided herein.
Trustee's Lien: Has the meaning specified in Section 7.16.
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Underwriter: With respect to the Certificates of any series,
has the meaning specified as such in the Trust Supplement establishing such
series.
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Company, any Owner Trustee or any Indenture
Trustee to the Trustee to take any action under any provision of this Basic
Agreement or, in respect of the Certificates of any series, this Agreement, the
Company, such Owner Trustee or such Indenture 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 Basic
Agreement or 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 Basic Agreement or
this Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or,opinion with respect to compliance with a
condition or covenant provided for in this Basic Agreement or, in respect of the
Certificates of any series, this Agreement (other than a certificate provided
pursuant to Section 8.04(d)) or any Trust Supplement shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions in
this Basic Agreement or this Agreement relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and
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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 Basic Agreement or, in respect of the Certificates
of any series, this Agreement, they may, but need not, be consolidated and form
one instrument.
Section 1.04. Acts of Certificateholders. (a) Any direction,
consent, waiver or other action provided by this Agreement in respect of the
Certificates of any series 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 Indenture 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 such
Trust Supplement and conclusive in favor of the Trustee, the Company and the
related Indenture 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 of any series
Outstanding have given any direction, consent or waiver (a "Direction"), under
this Agreement, Certificates owned
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by the Company, any related Owner Trustee, any related 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 a Responsible Officer of the Trustee knows to be so owned shall be so
disregarded. Notwithstanding the foregoing, (i) if any, such Person owns 100% of
the Certificates of any series Outstanding, such Certificates shall not be so
disregarded as aforesaid, and (ii) if any amount of Certificates of such series
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, any related Owner Trustee,
any related 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
in respect of the Certificates of any series, 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 of the applicable series at the close of business on such record date
shall be deemed to be Certificateholders for the purposes of determining whether
Certificateholders of the requisite proportion of Outstanding Certificates of
such series have authorized or agreed or consented to such consent, request,
demand, authorization, direction, notice, waiver or other Act, and for that
purpose the Outstanding Certificates of such series 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 Basic 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 of any series owned by or pledged to any Person shall have an equal
and proportionate benefit under the provisions of this Agreement, without
preference, priority, or distinction as among all of the Certificates of such
series.
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ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF EQUIPMENT NOTES
Section 2.01. Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Certificates of each
series which may be authenticated and delivered under this Basic Agreement is
limited to an amount equal to the aggregate principal amount of the Equipment
Notes held in the related Trust. The Certificates may be issued from time to
time in one or more series and shall be designated generally as the "Pass
Through Certificates", with such further designations added or incorporated in
such title for the Certificates of each series as specified in the related Trust
Supplement. Each Certificate shall bear upon its face the designation so
selected for the series to which it belongs. All Certificates of the same series
shall be substantially identical except that the Certificates of a series may
differ as to denomination and as may otherwise be provided in the Trust
Supplement establishing the Certificates of such series. Each series of
Certificates issued pursuant to this Agreement will evidence fractional
undivided interests in the related Trust and, except as may be contained in any
Intercreditor Agreement, will have no rights, benefits or interests in respect
of any other Trust or the Trust Property held therein. All Certificates of the
same series shall be in all respects equally and ratably entitled to the
benefits of this Agreement without preference, priority or distinction on
account of the actual time or times of authentication and delivery, all in
accordance with the terms and provisions of this Agreement.
(b) The following matters shall be established with respect to
the Certificates of each series issued hereunder by a Trust Supplement executed
and delivered by and among the Company and the Trustee:
(1) the formation of the Trust as to which the Certificates of
such series represent fractional undivided interests and its
designation (which designation shall distinguish such Trust from each
other Trust created under this Basic Agreement and a Trust Supplement);
(2) the specific title of the Certificates of such series
(which title shall distinguish the Certificates of such series from
each other series of Certificates created under this Basic Agreement
and a Trust Supplement);
(3) any limit upon the aggregate principal amount of the
Certificates of such series which may be authenticated and delivered
(which limit shall not pertain to Certificates authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of other Certificates of the series pursuant to Sections 3.03,
3.04 and 3.05;
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(4) the Cut-off Date with respect to the Certificates of such
series;
(5) the Regular Distribution Dates applicable to the
Certificates of such series;
(6) the Final Legal Distribution Date with respect to the
Certificates of such series;
(7) the Special Distribution Dates applicable to the
Certificates of such series;
(8) if other than as provided in Section 7.11(b), the
Registrar or the Paying Agent for the Certificates of such series,
including any Co-Registrar or additional Paying Agent;
(9) if other than as provided in Section 3.01, the
denominations in which the Certificates of such series shall be
issuable;
(10) if other than United States dollars, the currency or
currencies (including currency units) in which the Certificates of such
series shall be denominated;
(11) the specific form of the Certificates of such series
(including the interest rate applicable thereto (or, in the case of any
Certificates denominated in a currency other than United States dollars
and if other than as provided in Section 3.09, whether and the
circumstances under which beneficial owners of interests in such
Certificates in permanent global form may exchange such interests for
Certificates of such series and of like tenor of any authorized form
and denomination);
(12) a description of the Equipment Notes to be acquired and
held in the related Trust and of the related Equipment and Note
Documents;
(13) provisions with respect to the terms for which the
definitions set forth in Article I hereof or the terms of Section 11.01
hereof permit or require further specification in the related Trust
Supplement;
(14) any restrictions (including legends) in respect of ERISA;
(15) whether such series will be subject to an Intercreditor
Agreement and, if so, the specific designation of such Intercreditor
Agreement and whether such series may be purchased in accordance with
Section 6.01(b) hereof; and
(16) any other terms of the Certificates of such series (which
terms shall not be inconsistent with the provisions of the Trust
Indenture Act), including any terms which may
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be required or advisable under United States laws or regulations or
advisable in connection with the marketing of Certificates of the
series.
(c) At any time and from time to time after the execution and
delivery of this Basic Agreement and a Trust Supplement forming a Trust and
establishing the terms of Certificates of a series, Certificates of such series
shall be executed, authenticated and delivered by the Trustee to the Person or
Persons specified by the Company upon request of the Company and upon
satisfaction of any conditions precedent set forth in such Trust Supplement or
in any other document to which a Trustee is a party relating to the issuance of
the Certificates of such series.
Section 2.02. Acquisition of Equipment Notes.
(a) Unless otherwise specified in the related Trust
Supplement, on or prior to the Issuance Date of the Certificates of a series,
the Trustee shall execute and deliver the related Refunding Agreements in the
form delivered to the Trustee by the Company. 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 Refunding 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 of such series in excess of the aggregate amount specified in this
paragraph. The provisions of this Subsection (a) are subject to the provisions
of Subsection (b) below.
(b) If on or prior to the Issuance Date with respect to a
series of Certificates the Company shall deliver to the Trustee a Postponement
Notice relating to one or more Postponed Notes, the Trustee shall postpone the
purchase of such Postponed Notes and shall deposit into an escrow account (as to
such Trust, the "Escrow Account") to be maintained as a part of the related
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 and risk of, and for the benefit of, the
Company in Specified Investments (i) maturing no later than any scheduled
Transfer Date relating to such series of Certificates 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
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or more occasions and the satisfaction of the closing conditions specified in
the applicable Refunding Agreements on or prior to the related Cut-off Date, the
Trustee shall purchase the applicable Postponed Notes with the Escrowed Funds
withdrawn from the Escrow Account. The purchase price shall equal the principal
amount of such Postponed Notes.
The Trustee shall hold all Specified Investments until the
maturity thereof and will not sell or otherwise transfer Specified Investments.
If Specified Investments held in an Escrow Account mature prior to any
applicable Transfer Date, any proceeds received on the maturity of such
Specified Investments (other than any earnings thereon) shall be reinvested by
the Trustee at the written direction and risk of, and for the benefit of, the
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 relevant Escrow Account an amount
equal to any losses on such Specified Investments as incurred. On the Initial
Regular Distribution Date in respect of the Certificates of any series, the
Company will pay (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, in respect of the Certificates of any series, the Company
notifies the Trustee prior to the Cut-off Date that any Postponed Notes will not
be issued on or prior to the Cut-off Date for any reason, on the next Special
Distribution Date for such Certificates occurring more than 20 days following
the date of such notice (i) the Company shall pay to the Trustee for deposit in
the related Special Payments Account, in immediately available funds, an amount
equal to the interest that would have accrued on the Postponed Notes designated
in such notice at a rate equal to the interest rate applicable to such
Certificates from the Issuance Date to, but not including, such Special
Distribution Date and (ii) the Trustee shall transfer an amount equal to that
amount of Escrowed Funds that would have been used to purchase the Postponed
Notes designated in such notice and the amount paid by the 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.
If, on such Cut-off Date, an amount equal to less than all of
the Escrowed Funds (other than Escrowed Funds referred to in the immediately
preceding paragraph) has been used to purchase Postponed Notes, on the next such
Special Distribution Date occurring more than 20 days following such Cut-off
Date (i) the Company shall pay to the Trustee for deposit in such Special
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Payments Account, in immediately available funds, an amount equal to the
interest that would have accrued on such Postponed Notes contemplated to be
purchased with such unused Escrowed Funds (other than Escrowed Funds referred to
in the immediately preceding paragraph) but not so purchased at a rate equal to
the interest rate applicable to such Certificates from the Issuance Date to, but
not including, such Special Distribution Date and (ii) the Trustee shall
transfer such unused Escrowed Funds and the amount paid by the Company pursuant
to the immediately preceding clause (i) to such Special Payments Account for
distribution as a Special Payment in accordance with the provisions hereof.
Section 2.03. Acceptance by Trustee. The Trustee, upon the
execution and delivery of a Trust Supplement creating a Trust and establishing a
series of Certificates, shall acknowledge its acceptance of all right, title,
and interest in and to the Equipment Notes to be acquired pursuant to Section
2.02 hereof and the related Refunding Agreements and shall declare that the
Trustee holds and will hold such right, title, and interest, together with all
other property constituting the Trust Property of such Trust, for the benefit of
all then present and future Certificateholders of such series, upon the trusts
herein and in such Trust Supplement set forth. By its payment for and acceptance
of each Certificate of such series issued to it under this Agreement, each
initial Certificateholder of such series as grantor of such Trust shall thereby
join in the creation and declaration of such Trust.
Section 2.04. Limitation of Powers. Each Trust shall be
constituted solely for the purpose of making the investment in the Equipment
Notes provided for in the related Trust Supplement, and, except as set forth
herein or in this Agreement, the Trustee shall not be authorized or empowered to
acquire any other investments or engage in any other activities and, in
particular, the Trustee shall not be authorized or empowered to do anything that
would cause such Trust to fail to qualify as a "grantor trust" for federal
income tax purposes (including as subject to this restriction, acquiring the
Aircraft or Spare Engine (as defined in the respective related Indentures) by
bidding such Equipment Notes or otherwise, or taking any action with respect to
any such Aircraft or Spare Engine once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01. Form, Denomination and Execution of
Certificates. The Certificates of each series shall be issued in fully
registered form without coupons and shall be substantially in the form attached
hereto as Exhibit A, with such omissions, variations and insertions as are
permitted by this Agreement, and may have such letters, numbers or other marks
of identification and such legends or endorsements printed, lithographed or
engraved thereon, as may be required to comply with the rules of
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any securities exchange on which such Certificates may be listed or to conform
to any usage in respect thereof, or as may, consistently herewith, be prescribed
by the Trustee or by the officer executing such Certificates, such determination
by said officer to be evidenced by his signing 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.
Except as provided in Section 3.09, the definitive
Certificates of such series shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the
Certificates may be listed, all as determined by the officer executing such
Certificates, as evidenced by his execution of such Certificates.
Except as otherwise provided in the related Trust Supplement,
the Certificates of each series shall be issued in denominations of $1,000 and
integral multiples thereof, except that one Certificate of each series may be
issued in a different denomination.
The Certificates of such series shall be executed on behalf of
the Trustee by manual or facsimile signature of a Responsible Officer of the
Trustee. Certificates of any series bearing the manual or facsimile signature of
an individual who was, at the time when such signature was affixed, authorized
to sign on behalf of the Trustee shall be valid and binding obligations of the
Trustee, notwithstanding that such individual has ceased to be so authorized
prior to the authentication and delivery of such Certificates or did not hold
such office at the date of such Certificates. No Certificate of any series shall
be entitled to any benefit under this Agreement, or be valid for any purpose
unless there appears on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A hereto executed by the Trustee
by manual signature, and such certificate of authentication upon any Certificate
shall be conclusive evidence, and the only evidence, that such Certificate has
been duly authenticated and delivered hereunder. All Certificates of any series
shall be dated on the date of their authentication.
Section 3.02. Authentication of Certificates. The Trustee
shall duly authenticate and deliver Certificates of each series in authorized
denominations equalling in the aggregate the aggregate principal amount of the
Equipment Notes to be purchased by the Trustee pursuant to the related Refunding
Agreements, and evidencing the entire ownership of the related Trust.
Section 3.03. Temporary Certificates. Pending the preparation
of definitive Certificates of any series, the Trustee may execute, authenticate
and deliver temporary Certificates of such series which are printed,
lithographed, typewritten, or otherwise produced, in any denomination,
containing substantially
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the same terms and provisions as set forth in Exhibit A hereto, except for such
appropriate insertions, omissions, substitutions and other variations relating
to their temporary nature as the officer executing such temporary Certificates
may determine, as evidenced by its execution of such temporary Certificates.
If temporary Certificates of any series are issued, the
Company will cause definitive Certificates of such series to be prepared without
unreasonable delay. After the preparation of definitive Certificates of such
series, the temporary Certificates shall be exchangeable for definitive
Certificates upon surrender of such temporary Certificates at the Corporate
Trust Office of the Trustee, or at the office or agency of the Trustee
maintained in accordance with Section 7.11, without charge to the holder. Upon
surrender for cancellation of any one or more temporary Certificates, the
Trustee shall execute, authenticate and deliver in exchange therefor definitive
Certificates of like series, in authorized denominations and of a like aggregate
Fractional Undivided Interest. Until so exchanged, such temporary Certificates
shall in all respects be entitled to the same benefits under this Agreement as
definitive Certificates.
Section 3.04. Registration of Transfer and Exchange of
Certificates. 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 a register
(the "Register") for each series of Certificates in which, subject to such
reasonable regulations as it may prescribe, the Trustee shall provide for the
registration of Certificates of such series and of transfers and exchanges of
such Certificates as herein provided. The Trustee shall initially be the
registrar (the "Registrar") for the purpose of registering Certificates of each
series and transfers and exchanges of such Certificates as herein provided.
If a Person other than the Trustee is appointed by the Company
as the Registrar, the Company will give the Trustee prompt written notice of the
appointment of such Registrar and of the location, and any change in the
location, of the Register, and the Trustee shall have the right to inspect the
Register at all reasonable times and to obtain copies thereof, and the Trustee
shall have the right to conclusively rely upon an officers' certificate executed
on behalf of the Registrar as to the names and addresses of the
Certificateholders and the principal amounts and numbers of such Certificates.
Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office or such other office or agency, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of like series, in authorized
denominations of a like aggregate Fractional Undivided Interest.
At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of like series, in authorized
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denominations and of a like aggregate Fractional Undivided Interest, upon
surrender of the Certificates to be exchanged at any such office or agency.
Whenever any Certificates are so surrendered for exchange, the Trustee shall
execute, authenticate and deliver the Certificates that the Certificateholder
making the exchange is entitled to receive. All Certificates issued upon any
registration of transfer or exchange of Certificates shall be valid obligations
of the Trust, evidencing the same interest therein, and entitled to the same
benefits under this Agreement, as the Certificates surrendered upon such
registration of transfer or exchange. Every Certificate presented or surrendered
for registration of transfer or exchange shall be duly endorsed or accompanied
by a written instrument of transfer in form satisfactory to the Trustee and the
Registrar duly executed by the Certificateholder thereof or its attorney duly
authorized in writing.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Trustee shall
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates. All
Certificates surrendered for registration of transfer and exchange shall be
canceled and subsequently destroyed by the Trustee.
Section 3.05. 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 of like series, in authorized denominations and of like Fractional
Undivided Interest. In connection with the issuance of any new Certificate under
this Section 3.05, 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 3.05 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 3.06. 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
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whatsoever, and neither the Trustee, the Registrar, nor any Paying Agent of the
Trustee shall be affected by any notice to the contrary.
Section 3.07. 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 canceled as provided in this Section, except as expressly permitted
by this Agreement. All canceled Certificates held by the Registrar shall be
destroyed and a certification of their destruction delivered to the Trustee.
Section 3.08. Limitation of Liability for Payments. All
payments or distributions made to Certificateholders of any series under the
related Trust Supplement shall be made only from the Trust Property of the
related Trust and only to the extent that the Trustee shall have sufficient
income or proceeds from such Trust Property to make such payments in accordance
with the terms of Article IV of this Agreement. Each Certificateholder, by its
acceptance of a Certificate, agrees that it will look solely to the income and
proceeds from the Trust Property of the related Trust to the extent available
for distribution to such Certificateholder as provided in this Agreement.
Section 3.09. Book-Entry and Definitive Certificates.
(a) The Certificates of any series may be issued in the form
of one or more typewritten Certificates representing the Book-Entry Certificates
of such series, to be delivered to The Depository Trust Company, the initial
Clearing Agency, by, or on behalf of, the Company. In such case, the
Certificates of such series delivered to The Depository Trust Company shall
initially be registered on the Register in the name of CEDE & Co., the nominee
of the initial Clearing Agency, and no Certificate Owner will receive a
definitive certificate representing such Certificate Owner's interest in the
Certificates of such series, except as provided above and in Subsection (c)
below. As to the Certificates of any series, unless and until definitive, fully
registered Certificates (the "Definitive Certificates") have been issued
pursuant to Subsection (c) below:
(i) the provisions of this Section 3.09 shall be in
full force and effect;
(ii) the Company, the Paying Agent, the Registrar
and the Trustee may deal with the Clearing Agency and the Clearing
Agency Participants for all purposes (including the making of
distributions on the Certificates and the distribution of statements
pursuant to Section 4.03) as the authorized representatives of the
Certificate Owners;
(iii) to the extent that the provisions of this
Section 3.09 conflict with any other provisions of this
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Agreement (other than the provisions of any Trust Supplement amending
this Section 3.09 as permitted by this Basic Agreement), the provisions
of this Section 3.09 shall control;
(iv) the rights of Certificate Owners shall be
exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between such Certificate Owners
and the Clearing Agency Participants; and until Definitive Certificates
are issued pursuant to Subsection (c) below, the Clearing Agency will
make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal and interest and
premium, if any, on the Certificates to such Clearing Agency
Participants; and
(v) whenever this Agreement requires or permits
actions to be taken based upon instructions or directions of
Certificateholders of such series holding Certificates of such series
evidencing a specified percentage of the Fractional Undivided Interests
in the related Trust, the Clearing Agency shall be deemed to represent
such percentage only to the extent that it has received instructions to
such effect from Certificate Owners and/or Clearing Agency Participants
owning or representing, respectively, such required percentage of the
beneficial interest in Certificates of such series and has delivered
such instructions to the Trustee. The Trustee shall have no obligation
to determine whether the Clearing Agency has in fact received any such
instructions.
(b) Whenever notice or other communication to the
Certificateholders of such series is required under this Agreement, unless and
until Definitive Certificates shall have been issued pursuant to Subsection (c)
below, the Trustee shall give all such notices and communications specified
herein to be given to Certificateholders of such series to the Clearing Agency.
(c) If with respect to the Certificates of any series (i) the
Company advises the Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities and the Trustee or
the Company is unable to locate a qualified successor, (ii) the Company at its
option, advises the Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (iii) after the occurrence of
an Event of Default with respect to the related Trust, Certificate Owners of
Book-Entry Certificates of such series evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the related Trust, by Act of
said Certificate Owners delivered to the Company and the Trustee, advise the
Company, the Trustee and the Clearing Agency through the Clearing Agency
Participants in writing that the continuation of a book-entry system through the
Clearing Agency Participants is no longer in the best interests of the
Certificate Owners of
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such series, then the Trustee shall notify all Certificate Owners of such
series, through the Clearing Agency, of the occurrence of any such event and of
the availability of Definitive Certificates. Upon surrender to the Trustee of
all the Certificates of such series held by the Clearing Agency, accompanied by
registration instructions from the Clearing Agency Participants for registration
of Definitive Certificates in the names of Certificate Owners of such series,
the Trustee shall issue and deliver the Definitive Certificates of such series
in accordance with the instructions of the Clearing Agency. Neither the Company,
the Registrar, the Paying Agent nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such registration instructions. Upon the issuance of
Definitive Certificates of such series, the Trustee shall recognize the Person
in whose name the Definitive Certificates are registered in the Register as
Certificateholders hereunder. Neither the Company nor the Trustee shall be
liable if the Trustee or the Company is unable to locate a qualified successor
Clearing Agency.
(d) The provisions of this Section 3.09 may be made
inapplicable to any series or may be amended with respect to any series in the
related Trust Supplement.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments
Account.
(a) The Trustee shall establish and maintain on behalf of the
Certificateholders of each series a Certificate Account as one or more
non-interest-bearing accounts. The Trustee shall hold the Certificate Account in
trust for the benefit of the Certificateholders of such series, and shall make
or permit withdrawals therefrom only as provided in this Agreement. On each day
when a Scheduled Payment is made to the Trustee, 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 of each series a Special Payments Account as one or more
accounts, which shall be non-interest bearing except as provided in Section
4.04. The Trustee shall hold the Special Payments Account in trust for the
benefit of the Certificateholders of such series, and shall make or permit
withdrawals therefrom only as provided in this Agreement. On each day when one
or more Special Payments are made to the Trustee, the Trustee, upon receipt
thereof, shall immediately deposit the aggregate amount of such Special Payments
into the Special Payments Account.
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(c) The Trustee shall present to the Indenture Trustee to
which an Equipment Note relates such Equipment Note on the date of its stated
final maturity or, in the case of any Equipment Note which is to be redeemed in
whole pursuant to the relevant Indenture, on the applicable redemption date
under such Indenture.
Section 4.02. Distributions from Certificate Account
and Special Payments Account.
(a) On each Regular Distribution Date with respect to a series
of Certificates or as soon thereafter as the Trustee has confirmed receipt of
the payment of the Scheduled Payments due on the Equipment Notes held in the
related Trust on such date, the Trustee shall distribute out of the applicable
Certificate Account the entire amount deposited therein pursuant to Section
4.01(a). There shall be so distributed to each Certificateholder of record of
such series on the Record Date with respect to such Regular Distribution Date
(other than as provided in Section 11.01 concerning the final distribution), by
check mailed to such Certificateholder at the address appearing in the Register,
such Certificateholder's pro rata share (based on the aggregate Fractional
Undivided Interest in the related Trust held by such Certificateholder) of the
aggregate amount in the applicable Certificate Account.
(b) On each Special Distribution Date with respect to any
Special Payment with respect to a series of Certificates or as soon thereafter
as the Trustee has confirmed receipt of the Special Payments due on the
Equipment Notes held in the related Trust or realized upon the sale of such
Equipment Notes, the Trustee shall distribute out of the applicable Special
Payments Account the entire amount of such Special Payment deposited therein
pursuant to Section 4.01(b). There shall be so distributed to each
Certificateholder of record of such series on the Record Date with respect to
such Special Distribution Date (other than as provided in Section 11.01
concerning the final distribution), by check mailed to such Certificateholder at
the address appearing in the Register, such Certificateholder's pro rata share
(based on the aggregate Fractional Undivided Interest in the related Trust held
by such Certificateholder) of the aggregate amount in the applicable Special
Payments Account on account of such Special Payment.
(c) The Trustee shall at the expense of the Company, cause
notice of each Special Payment with respect to a series of Certificates to be
mailed to each Certificateholder of such series at his address as it appears in
the Register. In the event of redemption or purchase of Equipment Notes held in
the related Trust, such notice shall be mailed not less than 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. Notices mailed by the Trustee shall set forth:
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(i) the scheduled 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 of such series, the
total amount to be received on such date for each $1,000 face amount
Certificate.
If the amount of premium, if any, payable upon the redemption
or purchase of an Equipment Note has not been calculated at the date that the
Trustee mails notice of a Special Payment, it shall be sufficient if the notice
sets forth the other amounts to be distributed and states that any premium
received will also be distributed.
If any redemption of the Equipment Notes held in any Trust is
canceled, the Trustee, as soon as possible after learning thereof, shall cause
notice thereof to be mailed to each Certificateholder of the related series at
its address as it appears on the Register.
Section 4.03. Statements to Certificateholders.
(a) On each Regular Distribution Date and Special Distribution
Date with respect to a series of Certificates, the Trustee will include with
each distribution to Certificateholders of the related series 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 $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 of the related
Trust.
With respect to the Certificates registered in the name of the
Clearing Agency, 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
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Agency's books as holding interests in the Certificates on such Record Date. On
each Distribution Date, the applicable Trustee will mail to each such Clearing
Agency Participant the statement described above and will make available
additional copies as requested by such Clearing Agency Participant for
forwarding to holders of interests in the Certificates. On each Distribution
Date, the applicable Trustee will mail to each Underwriter the statement
described above.
(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 related
Trust for such calendar year or, in the event such Person was a
Certificateholder of record during a portion of such calendar year, for the
applicable portion of such year, and such other items as are readily available
to the Trustee and which a Certificateholder shall reasonably request as
necessary for the purpose of such Certificateholder's preparation of its Federal
income tax returns. With respect to Certificates registered in the name of the
Clearing Agency, such report and such other items shall be prepared on the basis
of information supplied to the Trustees by the Clearing Agency Participants and
shall be delivered by the Trustee to such Clearing Agency Participants to be
available for forwarding by such Clearing Agency Participants to holders of
interests in Certificates.
Section 4.04. Investment of Special Payment Moneys. Any money
received by the Trustee pursuant to Section 4.01(b) representing a Special
Payment which is not to be promptly distributed shall, to the extent
practicable, be invested in Permitted Investments by the Trustee as directed in
writing by the Company pending distribution of such Special Payment pursuant to
Section 4.02. Any investment made pursuant to this Section 4.04 shall be in such
Permitted Investments having maturities not later than the date that such moneys
are required to be used to make the payment required under Section 4.02 on the
applicable Special Distribution Date and the Trustee shall hold any such
Permitted Investments until maturity. The Trustee shall have no liability with
respect to any investment made pursuant to this Section 4.04, other than by
reason of the willful misconduct or negligence of the Trustee. All income and
earnings from such investments shall be distributed on such Special Distribution
Date as part of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence. The Company,
at its own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises, except as
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otherwise specifically permitted in Section 5.02; provided, however, that the
Company shall not be required to preserve any right or franchise if the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company.
Section 5.02. Consolidation, Merger, Etc. The Company shall
not consolidate with or merge into any other corporation or convey, transfer or
lease substantially all of its assets as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety shall be a "citizen of the United States" (as defined in
Section 40102(a)(15) of Title 49 of the United States Code) holding a
carrier operating certificate issued by the Secretary of Transportation
pursuant to Chapter 447 of Title 49, United States Code, for aircraft
capable of carrying 10 or more individuals or 6,000 pounds or more of
cargo and with respect to which there is in force an air carrier
operating certificate issued pursuant to Part 121 of the regulations
under the sections of Title 49, United States Code, relating to
aviation;
(b) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety shall execute and deliver to the Trustee applicable to the
Certificates of each series a duly authorized, valid, binding and
enforceable agreement in form and substance reasonably satisfactory to
the Trustee containing an assumption by such successor corporation or
Person of the due and punctual performance and observance of each
covenant and condition of the Note Documents to which the Company is a
party and of this Agreement applicable to the Certificates of each
series to be performed or observed by the Company;
(c) immediately after giving effect to such transaction, no
Event of Default applicable to the Certificates of each series 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.
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Upon any consolidation or merger, or any conveyance, transfer
or lease of substantially all of the assets of the Company as an entirety in
accordance with this Section 5.02, the successor corporation or Person formed by
such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Agreement
applicable to the Certificates of each series with the same effect as if such
successor corporation or Person had been named as the Company herein. No such
conveyance, transfer or lease of substantially all of the assets of the Company
as an entirety shall have the effect of releasing 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 any Note
Document and of this Agreement applicable to the Certificates of such series to
which it is a party.
ARTICLE VI
DEFAULT
Section 6.01. Events of Default. (a) Exercise of Remedies:
Upon the occurrence and during the continuation of any Indenture 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 any Intercreditor
Agreement.
(b) Purchase Rights of Certificateholders: By acceptance of
its Certificate, each Certificateholder agrees that at any time after the
occurrence and during the continuation of a Triggering Event, each
Certificateholder of Certificates of a series will have certain rights, the
exercise of which will be specified in the applicable Trust Supplement, to
purchase the class of Certificates with immediate seniority to the Certificates
held by the purchasing Certificateholder. The purchase price with respect to the
Certificates of any series shall be equal to the Pool Balance of the
Certificates of such series, together with accrued and unpaid interest thereon
to the date of such purchase, without premium, but including any other amounts
then due and payable to the Certificateholders under this Agreement, any
Intercreditor Agreement or any other Note Document or on or in respect of the
Certificates of such series; provided, however, that no such purchase of
Certificates of such series 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 Agreements,
if any, relating to Certificates of multiple series that are subject to the same
Intercreditor Agreement (such other Agreements as defined in the Trust
Supplements establishing such series, the "Other Agreements"), the Certificates
of each such series that is senior to the Certificates held by such purchaser.
Each payment of the purchase price of the Certificates of any series shall be
made to an account or accounts designated by the Trustee and each such purchase
shall
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be subject to the terms of this Section. Each Certificateholder of any series
agrees by its acceptance of Certificates of such series that it will, upon
payment from any such Certificateholders of Certificates with a lower seniority
of the purchase price specified herein, 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, any Intercreditor
Agreement, the Liquidity Facility, the Note Documents and all Certificates of
such series 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,
any Intercreditor Agreement, the Liquidity Facility and the Note Documents. The
Certificates of such series will be deemed to be purchased on the date payment
of the purchase price is made notwithstanding the failure of the
Certificateholders to deliver any Certificates of such series 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 such
Certificates of such series 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 of such series 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.
(c) No Action Contrary to the Company's Rights under a Related
Lease. Notwithstanding any of the provisions of this Agreement to the contrary,
each Trustee agrees and each Certificateholder of any series agrees by its
acceptance of such Certificate for the benefit of the Company that it will not
take any action contrary to the Company's rights under any related Lease,
including the right of the Company to possession and use the quiet enjoyment of
the Equipment subject to such related Lease, except in accordance with the
provisions of the related Lease.
Section 6.02. Incidents of Sale of Equipment Notes. Upon any
sale of all or any part of the Equipment Notes made either under the power of
sale given under this Agreement or otherwise for the enforcement of this
Agreement, the following shall be applicable:
(1) Certificateholders and Trustee May Purchase Equipment
Notes. Any Certificateholder, the Trustee in its individual or any
other capacity or any other Person may bid for and purchase any of the
Equipment Notes, and upon compliance with the terms of sale, may hold,
retain, possess
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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, after payment of fees and expenses of the Trustee as
provided in Section 7.06, be applied as provided in Section 4.02.
Section 6.03. Judicial Proceedings Instituted by Trustee;
Trustee May Bring Suit. If there shall be a failure to make payment when due and
payable of the principal of, premium, if any, or interest on any Equipment Note,
or if there shall be any failure to pay any other amount under any Indenture
when due and payable, then the Trustee, in its own name, and as trustee of an
express trust, as holder of such Equipment Notes, to the extent permitted by and
in accordance with the terms of any Intercreditor Agreement and any Note
Documents (subject to the rights of the applicable Owner Trustee or Owner
Participant to cure any such failure in accordance with the applicable
Indenture), shall be entitled and empowered to institute any suits, actions or
proceedings at law, in equity or otherwise, for the collection of the sums so
due and unpaid on such Equipment Notes or under such Indenture and may prosecute
any such claim or proceeding to judgment or final decree with respect to the
whole amount of any such sums so due and unpaid.
Section 6.04. Control by Certificateholders. Subject to
Section 6.03 and any Intercreditor Agreement, the Certificateholders holding
Certificates of a series evidencing Fractional Undivided Interests aggregating
not less than a majority in interest in the related Trust shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee with respect to such Trust or pursuant to the terms of
any Intercreditor Agreement, or exercising any trust or power conferred on the
Trustee under this Agreement or any Intercreditor Agreement, including any right
of the Trustee as Controlling Party under any Intercreditor Agreement or as
holder of the Equipment Notes, provided that
(1) such Direction shall not in the opinion of the Trustee be
in conflict with any rule of law or with this Agreement and would not
involve the Trustee in personal liability or expense,
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(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Certificateholders of
such series not taking part in such Direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such Direction.
Section 6.05. Waiver of Past Defaults. Subject to any
Intercreditor Agreement, the Certificateholders holding Certificates of a series
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Trust (i) may on behalf of all of the Certificateholders
waive any past Event of Default hereunder and its consequences or (ii) if the
Trustee is the Controlling Party, may direct the Trustee to instruct the
applicable Indenture 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 Indenture Trustee with respect
thereto, except a default:
(1) in the deposit of any Scheduled Payment or Special Payment
under Section 4.01 or in the distribution of any payment under Section
4.02 on the Certificates of a series, or
(2) in the payment of the principal of (premium, if any) or
interest on the Equipment Notes, or
(3) in respect of a covenant or provision hereof which under
Article IX hereof cannot be modified or amended without the consent of
each Certificateholder holding an Outstanding Certificate of a series
affected thereby.
Upon any such waiver, such default shall cease to exist with
respect to Certificates of such series and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose and any direction
given by the Trustee on behalf of the Certificateholders of such series to the
relevant Indenture Trustee shall be annulled with respect thereto; but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon. Upon any such waiver, the Trustee shall
vote the Equipment Notes issued under the relevant Indenture to waive the
corresponding Indenture Default.
Section 6.06. Right of Certificateholders to Receive Payments
Not To Be Impaired. Anything in this Agreement to the contrary notwithstanding,
including without limitation Section 6.07 hereof, but subject to any
Intercreditor Agreement, the right of any Certificateholder to receive
distributions of payments required pursuant to Section 4.02 hereof on the
applicable Certificates when due, or to institute suit for the enforcement of
any such payment on or after the applicable
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Regular Distribution Date or Special Distribution Date, shall not be impaired or
affected without the consent of such Certificateholder.
Section 6.07. Certificateholders May Not Bring Suit Except
Under Certain Conditions. A Certificateholder of any series shall not have the
right to institute any suit, action or proceeding at law or in equity or
otherwise with respect to this Agreement, for the appointment of a receiver or
for the enforcement of any other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given written
notice to the Trustee of a continuing Event of Default;
(2) the Certificateholders holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not less than 25%
of the related Trust shall have requested the Trustee in writing to
institute such action, suit or proceeding and shall have offered to the
Trustee indemnity as provided in Section 7.02(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 of such series evidencing
Fractional Undivided Interests aggregating not less than a majority in
interest in the related Trust.
It is understood and intended that no one or more of the
Certificateholders of any series shall have any right in any manner whatever
hereunder or under the related Trust Supplement or under the Certificates of
such series to (i) surrender, impair, waive, affect, disturb or prejudice any
property in the Trust Property of the related Trust or the lien of any related
Indenture on any property subject thereto, or the rights of the
Certificateholders of such series or the holders of the related Equipment Notes,
(ii) obtain or seek to obtain priority over or preference to any other such
Certificateholder of such series or (iii) enforce any right under this
Agreement, except in the manner herein provided and for the equal, ratable and
common benefit of all the Certificateholders of such series subject to the
provisions of this Agreement.
Section 6.08. Remedies Cumulative. Every remedy given
hereunder to the Trustee or to any of the Certificateholders of any series shall
not be exclusive of any other remedy or remedies, and every such remedy shall be
cumulative and in addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise.
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Section 6.09. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Agreement, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company.
ARTICLE VII
THE TRUSTEE
Section 7.01. Notice of Defaults. As promptly as practicable
after, and in any event within 90 days after the occurrence of any default (as
such term is defined below) hereunder known to the Trustee, the Trustee shall
transmit by mail to the Company, any related Owner Trustees, the related
Indenture Trustees and the Certificateholders holding Certificates of the
related series in accordance with Section 313(c) of the Trust Indenture Act,
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal 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 of the related series. For the purpose of this Section in
respect of any Trust, the term "default" means any event that is, or after
notice or lapse of time or both would become, an Event of Default in respect of
that Trust.
Section 7.02. 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 any
Intercreditor Agreement the Trustee shall deem it desirable that a
matter be proved or established prior to
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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 related Owner Trustee or any related Indenture Trustee;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement or any
Intercreditor Agreement at the request or direction of any of the
Certificateholders pursuant to this Agreement or any Intercreditor
Agreement unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the cost, expenses and
liabilities which might be incurred by it in compliance with such
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 any Intercreditor Agreement or perform any duties
under this Agreement or any Intercreditor Agreement either directly or
by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it under this Agreement or any
Intercreditor Agreement;
(h) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Certificateholders holding Certificates of any series
evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in the related Trust relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement or any Intercreditor Agreement;
(i) the Trustee shall not be required to expend or risk its
own funds in the performance of any of its duties under this Agreement,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk is not reasonably assured to it;
and
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(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
Cerificates. The recitals contained herein and in the Certificates of each
series, except the certificates of authentication, shall not be taken as the
statements of the Trustee, and the Trustee assumes no responsibility for their
correctness. Subject to Section 7.14, the Trustee makes no representations as
to the validity or sufficiency of this Basic Agreement or any Trust Supplement,
any Note Documents, any Refunding Agreement or any Intercreditor Agreement, any
Equipment Notes or the Certificates of any series, except that the Trustee
hereby represents and warrants that this Basic Agreement has been, and each
Trust Supplement, each Certificate and each Intercreditor Agreement of, or
relating to, each series will be, executed and delivered by one of its
officers who is duly authorized to execute and deliver such document on
its behalf.
Section 7.04. 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
may otherwise deal with the Company, any Owner Trustees or the Indenture
Trustees with the same rights it would have if it were not Trustee, Paying
Agent, Registrar or such other agent.
Section 7.05. Money Held in Trust. Money held by the Trustee
or the Paying Agent in trust hereunder or under any Trust Supplement need not be
segregated from other funds except to the extent required herein or by law and
neither the Trustee nor the Paying Agent shall have any liability for interest
upon any such moneys except as provided for herein.
Section 7.06. Compensation and Reimbursement. The Company
agrees:
(1) to pay, or cause to be paid, to the Trustee from time to
time reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided in any Trust
Supplement, to reimburse, or cause to be reimbursed, the Trustee upon
its request for all reasonable out-of-pocket expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Basic Agreement, any Trust Supplement or any
Intercreditor Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
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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 promptly of any claim for which it may seek
indemnity. The Company 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 Company will pay the reasonable fees
and expenses of such counsel. The Company need not 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 promptly of any claim for any tax for which it
may seek indemnity. The Trustee shall permit the Company to contest the
imposition of such tax and the Trustee, in its individual capacity,
shall, at the Company's expense, cooperate in the defense. The Trustee,
in its individual capacity, may have separate counsel with the consent
of the Company and the Company will pay the reasonable fees and
expenses of such counsel. The Company need not 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 of each series upon, all property and
funds held or collected by the Trustee in its capacity as Trustee with respect
to such series or the related Trust for any tax incurred without negligence, bad
faith or willful misconduct, on its part, arising out of or in connection with
the acceptance or administration of such Trust
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(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 of such Trust 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 of such series as their names and addresses appear in the
Register.
As security for the performance of the obligations of the
Company under this Section 7.06 with respect to each Trust the Trustee shall
have a lien prior to the Certificates of the related series upon all property
and funds held or collected by the Trustee in its capacity as Trustee with
respect to such Certificates and the related Trust.
Section 7.07. Corporate Trustee Required; Eligibility. Each
Trust shall at all times have a Trustee which shall be eligible to act as a
trustee under Section 310(a) of the Trust Indenture Act and shall have a
combined capital and surplus of at least $100,000,000 (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 $100,000,000). 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 of any
Trust, the Trustee shall resign immediately as Trustee of such Trust in the
manner and with the effect specified in Section 7.08.
Section 7.08. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee of any Trust pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee
under Section 7.09.
(b) The Trustee may resign at any time as trustee of any or
all Trusts by giving written notice thereof to the Company, the Authorized
Agents, the related Owner Trustees and the related Indenture Trustees. If an
instrument of acceptance
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by a successor Trustee shall not have been delivered to the Company, the related
Owner Trustees and the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time as trustee of any
Trust by Act of the Certificateholders of the related series holding
Certificates of such series evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in such Trust delivered to the
Trustee and to the Company, the related Owner Trustees and the related Indenture
Trustees.
(d) If at any time in respect of any Trust:
(1) the Trustee shall fail to comply with Section 310 of the
Trust Indenture Act after written request therefor by the Company or by
any Certificateholder of the related series 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 of the related series 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 of such Trust.
(e) If a Responsible Officer of the Trustee shall obtain
actual knowledge of an Avoidable Tax (as hereinafter defined) in respect of any
Trust which has been or is likely to be asserted, the Trustee shall promptly
notify the Company and shall, within 30 days of such notification, resign as
Trustee of such Trust hereunder unless within such 30-day period the Trustee
shall have received notice that the Company has agreed to pay such tax. The
Company shall promptly appoint a successor Trustee of such Trust in a
jurisdiction where there are no Avoidable Taxes. As used herein, an "Avoidable
Tax" in respect of such Trust means a state or local tax (i) upon (w) such
Trust, (x) such Trust Property, (y) Certificateholders of such Trust or (z) the
Trustee for which the Trustee is entitled to seek reimbursement from the Trust
Property of such Trust, and (ii) which would be avoided if the Trustee were
located in
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another state, or jurisdiction within a state, within the United States. A tax
shall not be an Avoidable Tax in respect of any Trust if the Company or any
Owner Trustee shall agree to pay, and shall pay, such tax.
(f) If the Trustee shall resign, be removed or become
incapable of acting as trustee of any Trust, or if a vacancy shall occur in the
office of the Trustee of any Trust for any cause, the Company shall promptly
appoint a successor Trustee of such Trust. If, within one year after such
resignation, removal or incapability, or other occurrence of such vacancy, a
successor Trustee of such Trust shall be appointed by Act of the
Certificateholders of the related series holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in such Trust delivered to the Company, the related Owner Trustees,
the related Indenture Trustee and the retiring Trustee, the successor Trustee 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 of such Trust and supersede the successor Trustee of such
Trust appointed as provided above. If no successor Trustee shall have been so
appointed as provided above and accepted appointment in the manner hereinafter
provided, the resigning Trustee or any Certificateholder who has been a bona
fide Certificateholder of the related series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee of such Trust.
(g) The successor Trustee of a Trust shall give notice of the
resignation and removal of the Trustee and appointment of the successor Trustee
by mailing written notice of such event by first-class mail, postage prepaid, to
the Certificateholders of the related series as their names and addresses appear
in the Register. Each notice shall include the name of such successor Trustee
and the address of its Corporate Trust Office.
Section 7.09. Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee with respect to any or all Trusts an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee with respect to such Trusts shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on request of the Company or the successor Trustee, such retiring
Trustee shall execute and deliver an instrument transferring to such successor
Trustee all such rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee in respect of such Trusts hereunder, subject
nevertheless to its lien, if any, provided for in Section 7.06. Upon request of
any such successor Trustee, the Company, the
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retiring Trustee and such successor Trustee shall execute and deliver any and
all instruments containing such provisions as shall be necessary or desirable to
transfer and confirm to, and for more fully and certainly vesting in, such
successor Trustee all such rights, powers and trusts.
If a successor Trustee is appointed with respect to one or
more (but not all) Trusts, the Company, the predecessor Trustee and each
successor Trustee with respect to any Trust shall execute and deliver a
supplemental agreement hereto which shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts and
duties of the predecessor Trustee with respect to the Trusts as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Basic Agreement and the applicable Trust Supplements as shall be necessary to
provide for or facilitate the administration of the Trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental agreement shall constitute such Trustees co-Trustees of the same
Trust and that each such Trustee shall be Trustee of separate 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 VII.
Section 7.10. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Certificates shall have been
executed or authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such execution or authentication and deliver the Certificates so
executed or authenticated with the same effect as if such successor Trustee had
itself executed or authenticated such Certificates.
Section 7.11. Maintenance of Agencies.
(a) With respect to each series of Certificates, there shall
at all times be maintained in the Borough of Manhattan, The City of New York, an
office or agency where Certificates of such series may be presented or
surrendered for registration of transfer or for exchange, and for payment
thereof and where notices and demands to or upon the Trustee in respect of such
Certificates or of the related Trust Supplement may be served.
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Such office or agency shall be initially Fleet National Bank c/o Shawmut Trust
Company, 14 Wall Street, New York, New York 10005. Written notice of the
location of each such other office or agency and of any change of location
thereof shall be given by the Trustee to the Company, any Owner Trustees, the
Indenture Trustees and the Certificateholders of such series. In the event that
no such office or agency shall be maintained or no such notice of location or of
change of location shall be given, presentations and demands may be made and
notices may be served at the Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder with respect to the Certificates of each series. Each such Authorized
Agent shall be a bank or trust company, shall be a corporation organized and
doing business under the laws of the United States or any state, with a combined
capital and surplus of at least $75,000,000, or a corporation having a combined
capital and surplus in excess of $5,000,000 the obligations of which are
guaranteed by a corporation organized and doing business under the laws of the
United States or any state, with a combined capital and surplus of at least
$75,000,000, and shall be authorized under such laws to exercise corporate trust
powers, subject to supervision by Federal or state authorities. The Trustee
shall initially be the Paying Agent and, as provided in Section 3.04, Registrar
hereunder with respect to the Certificates of each series. Each Registrar shall
furnish to the Trustee, at stated intervals of not more than six months, and at
such other times as the Trustee may request in writing, a copy of the Register
maintained by such Registrar.
(c) Any corporation into which any Authorized Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any Authorized
Agent shall be a party, or any corporation succeeding to the corporate trust
business of any Authorized Agent, shall be the successor of such Authorized
Agent 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, any related Owner
Trustees and the related Indenture 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
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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, any related Owner Trustees and the related Indenture
Trustees; and in each case the Trustee shall mail notice of such appointment to
all Certificateholders of the related series as their names and addresses appear
on the Register for such series.
(e) The Company agrees to pay, or cause to be paid, from time
to time to each Authorized Agent reasonable compensation for its services and to
reimburse it for its reasonable expenses.
Section 7.12. 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 Trustee's
Name. Subject to Section 12.04, the Trustee agrees that all Equipment Notes, and
Permitted Investments, if any, shall be issued in the name of the Trustee as
trustee for the applicable Trust or its nominee and held by the Trustee, or, if
not so held, the Trustee or its nominee shall be reflected as the owner of such
Equipment Notes or Permitted Investments as the case may be, in the register of
the issuer of such Equipment Notes or Permitted Investments.
Section 7.14. Representations and Warranties of
Trustee. The Trustee hereby represents and warrants that:
(a) the Trustee is a national banking association organized
and validly existing and in good standing under the laws of the United
States of America;
(b) the Trustee has full power, authority and legal right to
execute, deliver, and perform this Agreement, any Intercreditor
Agreement and the Refunding Agreements and has taken all necessary
action to authorize the execution, delivery, and performance by it of
this Agreement, any Intercreditor Agreement and the Refunding
Agreements;
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(c) the execution, delivery and performance by the Trustee of
this Agreement, any Intercreditor Agreement and the Refunding
Agreements (i) will not violate any provision of any United States
federal law or the law of the State of Connecticut, in each case,
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, any Intercreditor Agreement and the Refunding
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 Connecticut regulating the banking
and corporate trust activities of the Trustee; and
(e) this Agreement, any Intercreditor Agreement and the
Refunding Agreements have been duly executed and delivered by the
Trustee and constitute the legal, valid, and binding agreements of the
Trustee, enforceable against it in accordance with their respective
terms, provided that enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and (ii) general principles
of equity.
Section 7.15. Withholding Taxes; Information Reporting. As to
the Certificates of any series, the Trustee, as trustee of the related grantor
trust created by this Agreement, shall exclude and withhold from each
distribution of principal, premium, if any, and interest and other amounts due
under this Agreement or under the Certificates of such series any and all
withholding taxes applicable thereto as required by law. The Trustee agrees to
act as such withholding agent and, in connection therewith, whenever any 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 of such series, to
withhold such amounts and timely pay the same to the authority in the name of
and on behalf of the Certificateholders of such series, that it will file any
necessary withholding tax returns or statements when due, and that, as promptly
as possible
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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 of such series may
reasonably request from time to time. The Trustee agrees to file any other
information reports as it may be required to file under United States law.
Section 7.16. Trustee's Liens. The Trustee in its individual
capacity agrees that it will in respect of each Trust created by this Agreement
at its own cost and expense promptly take any action as may be necessary to duly
discharge and satisfy in full any mortgage, pledge, lien, charge, encumbrance,
security interest or claim ("Trustee's Liens") on or with respect to the Trust
Property of such Trust which is attributable to the Trustee either (i) in its
individual capacity and which is unrelated to the transactions contemplated by
this Agreement, the related Refunding Agreements or the related Note Documents,
or (ii) as Trustee hereunder or in its individual capacity and which arises out
of acts or omissions by the Trustee which are in breach of this Agreement.
Section 7.17. Preferential Collection of Claims. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship listed in Section 311(b) of the Trust Indenture Act. If
the Trustee shall resign or be removed as Trustee, it shall be subject to
Section 311(a) of the Trust Indenture Act to the extent provided therein.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and
Addresses of Certificateholders. The Company will furnish to the Trustee within
15 days after each Record Date with respect to a Scheduled Payment, and at such
other times as the Trustee may request in writing, within 30 days after receipt
by the Company of any such request, a list, in such form as the Trustee may
reasonably require, of all information in the possession or control of the
Company as to the names and addresses of the Certificateholders of such series,
in each case as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that so long as the Trustee is the sole Registrar
for such series, no such list need be furnished; and provided, further, however,
that no such list need be furnished for so long as a copy of the Register is
being furnished to the Trustee pursuant to Section 7.11.
Section 8.02. Preservation of Information; Communications to
Certificateholders. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders of each
series 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
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the names and addresses of Certificateholders of each series received by the
Trustee in its capacity as Registrar, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 7.11 or Section 8.01, as the case
may be, upon receipt of a new list so furnished.
Section 8.03. Reports by Trustee. Within 60 days after May 15
of each year commencing with the first full year following the issuance of any
series of Certificates, the Trustee shall transmit to the Certificateholders of
each series, as provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of such May 15, if required by Section 313(a) of the Trust
Indenture Act.
Section 8.04. Reports by the Company. The Company
shall:
(a) file with the Trustee, within 30 days after the Company is
required to file the same with the SEC, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may from time to time by
rules and regulations prescribe) which the Company is required to file
with the SEC pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934, as amended; or, if the Company is not required to
file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the SEC, in accordance with
rules and regulations prescribed by the SEC, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with the
rules and regulations prescribed by the SEC, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants of the Company provided for
in this Agreement, as may be required by such rules and regulations,
including, in the case of annual reports, if required by such rules and
regulations, certificates or opinions of independent public
accountants, conforming to the requirements of Section 1.02;
(c) transmit to all Certificateholders, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act such
summaries of any information, documents and reports required to be
filed by the Company pursuant to Subsections (a) and (b) of this
Section 8.04 as may be required by rules and regulations prescribed by
the SEC;
(d) furnish to the Trustee, not less often than annually, a
brief certificate from the principal executive officer, principal
financial officer or principal accounting
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officer as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Agreement (it being understood that
for purposes of this paragraph (d), such compliance shall be determined
without regard to any period of grace or requirement of notice provided
under this Agreement); and
(e) make available to any Certificateholder upon request, the
annual audited and quarterly unaudited financial statements of the
Company which are provided to the Trustee.
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders. Without the consent of the Certificateholders, the 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 any Intercreditor Agreement, any Refunding Agreement or any
Liquidity Facility in form satisfactory to the Trustee, for any of the following
purposes:
(1) to provide for the formation of a Trust, the issuance of a
series of certificates and the other matters contemplated by Section
2.01(b); or
(2) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein contained; or
(3) to add to the covenants of the Company for the benefit of
the Certificateholders of any series, or to surrender any right or
power in this Agreement conferred upon the Company; or
(4) to correct or supplement any provision in this Agreement,
any Intercreditor Agreement, any Refunding Agreement, any Liquidity
Facility or any Indenture which may be defective or inconsistent with
any other provision herein or in any Trust Supplement or to cure any
ambiguity, correct any mistake or to modify any other provisions with
respect to matters or questions arising under this Agreement, any
Intercreditor Agreement, any Refunding Agreement, any Liquidity
Facility or any Indenture, provided that any such action shall not
adversely affect the interests of the Certificateholders of any series;
or
(5) to modify, eliminate or add to the provisions of this
Agreement to such extent as shall be necessary to continue the
qualification of this Agreement (including any supplemental agreement)
under the Trust Indenture Act, or under any similar Federal statute
hereafter enacted, and to
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add to this Agreement such other provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the
provisions referred to in Section 316(a)(2) of the Trust Indenture Act
as in effect at the date as of which this instrument was executed or
any corresponding provision in any similar Federal statute hereafter
enacted; or
(6) to evidence and provide for the acceptance of appointment
under this Agreement by a successor Trustee with respect to one or more
Trusts 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 Trusts hereunder and thereunder by more than one Trustee,
pursuant to the requirements of Section 7.09; or
(7) to make any other amendments or modifications hereto,
provided such amendments or modifications shall only apply to
Certificates of one or more series to be thereafter issued;
provided, however, that no such supplemental agreement shall adversely affect
the status of any Trust as a grantor trust under Subpart E, Part I of Subchapter
J of Chapter 1 of Subtitle A of the Internal Revenue Code of 1986, as amended,
for U.S. federal income tax purposes. The Trustee shall be entitled to rely upon
an Opinion of Counsel to such effect.
Section 9.02. Supplemental Agreements with Consent of
Certificateholders. With respect to each separate Trust and the series of
Certificates relating thereto, with the consent of the Certificateholders
holding Certificates of any series evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in such Trust, by Act of said
Certificate-holders delivered to the Company and the Trustee, the Company may
(with the consent of the Owner Trustee, if any, relating to such certificates,
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, any Intercreditor
Agreement, any Liquidity Facility or any Refunding Agreement 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 such Trust or distributions that are required to be made herein on
any Certificate of such series, or change any date of payment of any
Certificate of such series, or change the place of payment where, or
the coin or currency in which, any Certificate of such series is
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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 in the Trust
Property of such Trust except as permitted by this Agreement or
otherwise deprive such Certificateholder of the benefit of the
ownership of the Equipment Notes in such Trust; or
(3) alter the priority of distributions specified in any
Intercreditor Agreement; or
(4) reduce the specified percentage of the aggregate
Fractional Undivided Interests of such Trust which is required for any
such supplemental agreement, or reduce such specified percentage
required for any waiver (of compliance with certain provisions of this
Agreement or certain defaults hereunder and their consequences)
provided for in this Agreement;
(5) 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 or such series
affected thereby; or
(6) adversely affect the status of any Trust as a grantor
trust under Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle
A of the Internal Revenue Code of 1986, as amended, for U.S. federal
income tax purposes.
It shall not be necessary for any Act of such
Certificateholders under this Section to approve the particular form of any
proposed supplemental agreement but it shall be sufficient if such Act shall
approve the substance thereof.
Section 9.03. Documents Affecting Immunity or Indemnity. If in
the opinion of the Trustee any document required to be executed by it pursuant
to the terms of Section 9.01 or 9.02 affects any interest, right, duty, immunity
or indemnity in favor of the Trustee under this Basic Agreement or any Trust
Supplement, the Trustee may in its discretion decline to execute such document.
Section 9.04. Execution of Supplemental Agreements. In
executing, or accepting the additional trusts created by, any supplemental
agreement permitted by this Article or the modifications thereby of the trusts
created by this Agreement, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental agreement is authorized or permitted by this
Agreement.
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Section 9.05. Effect of Supplemental Agreements. Upon the
execution of any supplemental agreement under this Article, this Basic Agreement
shall be modified in accordance therewith, and such supplemental agreement shall
form a part of this Basic Agreement for all purposes; and every
Certificateholder of each series theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby to the extent applicable to such
series.
Section 9.06. Conformity with Trust Indenture Act. Every
supplemental agreement executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.07. Reference in Certificates to Supplemental
Agreements. Certificates of each series authenticated and delivered after the
execution of any supplemental agreement applicable to such series pursuant to
this Article may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental agreement; and, in such case, suitable
notation may be made upon Outstanding Certificates of such series after proper
presentation and demand.
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indenture and
Other Note Documents. In the event that the Trustee, as holder of any Equipment
Notes in trust for the benefit of the Certificateholders of any series 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 of such series
registered on the Register as of the date of such notice. The Trustee shall
request from Certificateholders of such series 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 of such series 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
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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 Indenture Trustee of such consent to any
amendment, modification, waiver or supplement under the relevant Indenture 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
TERMINATION OF TRUSTS
Section 11.01. Termination of the Trusts. In respect of each
Trust created by the Basic Agreement as supplemented by a related Trust
Supplement, the respective obligations and responsibilities of the Company and
the Trustee created under this Agreement with respect to the Trust created
hereby and such Trust shall terminate upon the distribution to all Holders of
the Certificates of the series of such Trust and the Trustee of all amounts
required to be distributed to them pursuant to this Agreement and the
disposition of all property held as part of the Trust Property of the related
series of such Trust; provided, however, that in no event shall such Trust
continue beyond one hundred ten (110) years following the date of the earliest
execution of this Agreement.
Notice of any termination of a Trust, specifying the
applicable Regular Distribution Date (or applicable Special Distribution Date,
as the case may be) upon which the Certificateholders of any series may
surrender their Certificates to the Trustee for payment of the final
distribution and cancellation, shall be mailed promptly by the Trustee to
Certificateholders of such series not earlier than the minimum number of days
and not more than the maximum number of days specified therefor in the related
Trust Supplement preceding such final distribution specifying (A) the Regular
Distribution Date (or Special Distribution Date, as the case may be) upon which
the proposed final payment of the Certificates of such series will be made upon
presentation and surrender of Certificates of such series at the office or
agency of the Trustee therein specified, (B) the amount of any such proposed
final payment, and (C) that the Record Date otherwise applicable to such Regular
Distribution Date (or Special Distribution Date, as the case may be) is not
applicable, payments being made only upon presentation and surrender of the
Certificates of such series at the office or agency of the Trustee therein
specified. The Trustee shall give such notice to the Registrar at the time such
notice is given to Certificateholders of such series. Upon presentation and
surrender of the Certificates of such series in accordance with such notice, the
Trustee shall cause to be distributed to Certificateholders of such series
amounts distributable on such
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Regular Distribution Date (or Special Distribution Date, as the case may be)
pursuant to Section 4.02.
In the event that all of the Certificateholders of such series
shall not surrender their Certificates for cancellation within six months after
the date specified in the above-mentioned written notice, the Trustee shall give
a second written notice to the remaining Certificateholders of such series to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. No additional interest shall accrue on the Certificates
after the Regular Distribution Date (or Special Distribution Date, as the case
may be) specified in the first written notice. In the event that any money held
by the Trustee for the payment of distributions on the Certificates of such
series shall remain unclaimed for two years (or such lesser time as the Trustee
shall be satisfied, after 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 Indenture
Trustee the appropriate amount of money relating to such Indenture Trustee and
shall give written notice thereof to the related Owner Trustees and the Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders. The
death or incapacity of any Certificateholder of any series shall not operate to
terminate this Agreement, or the related Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations, and
liabilities of the parties hereto or any of them.
Section 12.02. Liabilities of Certificateholders. Neither the
existence of the Trust nor any provision in this Agreement is intended to or
shall limit the liability the Certificateholders would otherwise incur if the
Certificateholders owned Trust Property as co-owners, or incurred any
obligations of the Trust, directly rather than through the Trust.
Section 12.03. Certificates Nonassessable and Fully Paid.
Certificateholders of each series shall not be personally liable for obligations
of the related Trust, the Fractional Undivided Interests represented by the
Certificates of such series shall be nonassessable for any losses or expenses of
such Trust or for any reason whatsoever, and Certificates of such series upon
authentication thereof by the Trustee pursuant to Section 3.02 are and shall be
deemed fully paid. No Certificateholder of such series shall have any right
(except as expressly provided herein) to vote or in any manner otherwise
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control the operation and management of the related Trust Property, the related
Trust, or the obligations of the parties hereto, nor shall anything set forth
herein, or contained in the terms of the Certificates of such series, be
construed so as to constitute the Certificateholders of such series from time to
time as partners or members of an association.
Section 12.04. Registration of Equipment Notes in Name of
Subordination Agent. If a Trust is party to an Intercreditor Agreement, the
Trustee agrees that all Equipment Notes to be purchased by such Trust shall be
issued in the name of the Subordination Agent under such Intercreditor Agreement
or its nominee and held by such Subordination Agent in trust for the benefit of
the Certificateholders, or, if not so held, such Subordination Agent or its
nominee shall be reflected as the owner of such Equipment Notes in the register
of the issuer of such Equipment Notes.
Section 12.05. Notices.
(a) Unless otherwise specifically provided herein or in the
applicable Trust Supplement with respect to any Trust, all notices required
under the terms and provisions of this Basic Agreement or such Trust Supplement
with respect to such Trust shall be in English and in writing and any such
notice may be given by United States mail, courier service, telegram, telex,
telemessage, telecopy, telefax, cable or facsimile (confirmed by telephone or in
writing in the case of notice by telegram, telex, telemessage, telecopy,
telefax, cable or facsimile) or any other customary means of communication,
if to the Company, to:
Mail: America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85043
Attention: Senior Vice President-Legal Affairs
Facsimile: (602) 693-5904
if to the Trustee, to:
Mail: Fleet National Bank
777 Main Street
Hartford, Connecticut 06115
Attention: Corporate Trust Administration -
Responsible Officer - America West
Airlines Pass Through Trusts under
the Pass Through Trust Agreement
dated November 26, 1996
Facsimile: (860) 986-7920
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Telephone: (860) 986-4545
Any such notice shall be effective when received.
(b) The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Certificateholders of any
series shall be mailed by first-class mail to the addresses for
Certificateholders of such series shown on the Register kept by the Registrar
and to addresses filed with the Trustee for Certificate Owners of such series.
Failure so to mail a notice or communication or any defect in such notice or
communication shall not affect its sufficiency with respect to other
Certificateholders or Certificate Owners of such series.
(d) If the Company mails a notice or communication to the
Certificateholders of such series, it shall mail a copy to the Trustee and to
each Paying Agent for such series at the same time.
(e) 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.
(f) 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 Indenture Trustee.
Section 12.06. Governing Law. THIS BASIC AGREEMENT HAS BEEN
DELIVERED IN THE STATE OF NEW YORK AND, TOGETHER WITH ALL TRUST SUPPLEMENTS AND
CERTIFICATES, SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.07. 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 any
Trust or of the Certificates of any series or the rights of the
Certificateholders thereof.
Section 12.08. Trust Indenture Act Controls. This Agreement is
subject to the provisions of the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions.
Section 12.09. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table
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of Contents are for convenience only and shall not affect the construction
hereof.
Section 12.10. Successors and Assigns. All covenants,
agreements, representations and warranties in this Agreement by the Trustee 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 permitted
assigns, whether so expressed or not.
Section 12.11. Benefits of Agreement. Nothing in this
Agreement or in the Certificates of any series, express or implied, shall give
to any Person, other than the parties hereto and their successors hereunder, and
the Certificateholders of each series, any benefit or any legal or equitable
right, remedy or claim under this Agreement.
Section 12.12. Legal Holidays. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate of
any series shall not be a Business Day with respect to such series, then
(notwithstanding any other provision of this Agreement) payment need not be made
on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on such Regular Distribution Date or Special
Distribution Date, and no interest shall accrue during the intervening period.
Section 12.13. Counterparts. For the purpose of facilitating
the execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original and all of which counterparts
shall constitute but one and the same instrument.
Section 12.14. Communication by Certificateholders with Other
Certificateholders. Certificateholders of any series may communicate with other
Certificateholders of such series with respect to their rights under this Basic
Agreement, the related Trust Supplement or the Certificates of such series
pursuant to Section 3.12(b) of the Trust Indenture Act. The Company, the Trustee
and any and all other persons benefitted by this Agreement shall have the
protection afforded by Section 312(c) of the Trust Indenture Act.
Section 12.15. Intention of Parties. The parties hereto intend
that any Trust created hereunder be classified for U.S. federal income tax
purposes as a grantor trust under Subpart E, Part I of Subchapter J of Chapter 1
of Subtitle A of the Internal Revenue Code of 1986, as amended, and not as a
trust or association taxable as a corporation or as a partnership. The powers
granted and obligations undertaken pursuant to this Agreement shall be so
construed so as to further such intent.
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IN WITNESS WHEREOF, the Company and the Trustee have caused
this Basic Agreement to be duly executed by their respective officers, all as of
the day and year first above written.
AMERICA WEST AIRLINES, INC.
By:___________________________
Name:_________________________
Title:________________________
FLEET NATIONAL BANK,
as Trustee
By:___________________________
Name:_________________________
Title:________________________
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EXHIBIT A
FORM OF CERTIFICATE
(1)[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
AMERICA WEST AIRLINES PASS THROUGH TRUST _________________
Pass Through Certificate, Series___________
Issuance Date: _____________ __, ____
Final Distribution Date: ______________, ____
evidencing a fractional undivided interest in a trust, the
property of which includes certain equipment notes each
secured by one or more Aircraft or Spare Engines owned by or
leased to America West Airlines, Inc.
Certificate
No.__________ $__________ Fractional Undivided
Interest representing ________% of the
Trust per $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 America West Airlines Pass Through Trust _____________ (the "Trust")
created by Fleet National Bank, as trustee (the "Trustee"), pursuant to a Pass
Through Trust Agreement dated as of November __, 1996 (the "Basic Agreement")
between the Trustee and America West Airlines, Inc., a Delaware corporation (the
"Company"), as supplemented by Trust Supplement No.________ thereto dated
____________, ____ (collectively, the "Agreement"), between the Trustee and 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 "America West
- ----------
(1) This legend to appear on Book-Entry Certificates to be deposited with
The Depository Trust Company. One Certificate may be issued in
definitive form which shall not have this legend.
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2
Airlines Pass Through Certificates, Series _________" (herein called the
"Certificates"). This Certificate is issued under and is subject to the terms,
provisions, and conditions of the Agreement and any 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 any Intercreditor Agreement or Liquidity
Facility (the "Trust Property"). Each issue of the Equipment Notes is secured by
a security interest in aircraft or spare engines leased to or owned by the
Company.
The Certificates represent fractional undivided interests in
the Trust and the Trust Property, and have no rights, benefits or interest in
respect of any other separate trust established pursuant to the terms of the
Basic Agreement for any other series of certificates issued pursuant thereto.
The undivided percentage interest in the Trust represented by each of this
Certificate (as specified above) and the other America West Airlines Pass
Through Certificates, Series [____] was determined on the basis of (x) the
aggregate of the Reference Principal Amount of this Certificate (as specified
above) and of the other America West Airlines Pass Through Certificates, Series
[____] 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 any Intercreditor Agreement, from funds then available to the Trustee, there
will be distributed on each ________and _____________ (a "Regular Distribution
Date"), commencing on ______________, ____, 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, 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
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shall mail notice of each Special Payment and the Special Distribution Date
therefor to the Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Trustee
by check mailed to the Person entitled thereto, without the presentation or
surrender of this Certificate or the making of any notation hereon. Except as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after notice mailed by the Trustee
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency of the Trustee specified in such
notice.
The Certificates do not represent a direct obligation of, or
an obligation guaranteed by, or an interest in, the Company or the Trustee or
any affiliate thereof. The Certificates are limited in right or 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 entire Agreement and reference is
made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds, and duties evidenced hereby. A copy of the
Agreement may be examined during normal business hours at the principal office
of the Trustee, and at such other places, if any, designated by the Trustee, by
any Certificateholder upon request.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Certificateholders under the
Agreement at any time by the Company and the Trustee with the consent of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust. Any
such consent by the Certificateholder of this Certificate shall be conclusive
and binding on such Certificateholder and upon all future Certificateholders of
this Certificate and of any Certificate issued upon 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
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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 denominations of $1,000 Fractional Undivided Interest and
integral multiples thereof, provided that one Certificate may be in a different
denomination. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
authorized denominations evidencing the same aggregate Fractional Undivided
Interest in the Trust, as requested by the Certificateholder surrendering the
same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee shall require payment of a sum sufficient
to cover any tax or governmental charge payable in connection therewith.
The Trustee, the Registrar, and any agent of the Trustee or
the Registrar may treat the person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Trustee, the Registrar,
nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts 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 GIVING
EFFECT TO THE CONFLICT OF LAWS PROVISIONS OF THE STATE OF NEW YORK.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
AMERICA WEST AIRLINES PASS THROUGH TRUST
By: FLEET NATIONAL BANK,
as Trustee
By______________________________
Name:___________________________
Title:__________________________
Dated:_______________
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[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred to in the
within-mentioned Agreement.
FLEET NATIONAL BANK,
as Trustee
By:_________________________________
Name:_______________________________
Title:______________________________